Jim Jordan Leads House Judiciary Committee Hearing On FISA Oversight

[0:03] the gentleman for leading us and sorry to hear his recent announcement. He's not going to be [0:09] running for reelection, but glad to have him with us here today. We'll start with opening statements [0:13] and we'll get right to our witnesses and to today's hearing. February 2, 2021, the FBI was given, I [0:21] believe, I think it was just then when we were in the minority, just minority staff and members, [0:25] a briefing on the 702 program. And I remember that in that briefing, I can't remember who [0:33] asked the question, but one of us asked the question, how many agents, how many people at [0:38] the FBI have access to the 702 data? The data that's collected in this database, surveilling [0:43] foreigners, but all kinds of people get swept up, all kinds of Americans, US persons get swept up in [0:48] this. How many agents, how many people at the FBI can query, which I always point out is a fancy name [0:55] for search. How many people can search this data? Their answer was 10,000 people. I didn't know what, [1:03] we didn't know what answer to expect, but we didn't quite expect that big of a number. I mean, [1:10] if they'd have told us three people, I thought, well, that seems fairly small. If they'd have told [1:14] us any number over a thousand, I would have said, that's crazy. But they told us 10,000. We then said, [1:19] how many queries? We found out we had the IG do a study and investigation. How many queries are these [1:26] 10,000 agents, potentially 10,000 agents doing who have access to this information? How many are they doing on [1:32] US persons? And that answer from the IG was 3 million, 3 million in one calendar year, 2021. [1:43] The IG also told us that 278,000 of those searches on US persons were most definitely done in an [1:54] improper way. And what that meant by improper is they didn't follow the rules Congress had set. [1:58] They didn't follow the FBI rules. So they didn't follow our rules. They didn't even follow their own [2:02] rules when they were doing these unbelievable millions of searches, 278,000 definitely done [2:09] improperly. And the potential of 10,000 people at the FBI to do those very searches. And who were [2:17] they searching? Who are some of the people they searched? Well, the IG told us this as well. [2:23] Journalists, people a part of Black Lives Matter, members of Congress, 19,000 political donors, [2:31] ex-girlfriends. I mean, it was as obnoxious as you can imagine. And again, we're just now, [2:39] we're just talking about the 702. We're not even getting into Title I. We all know the problems with [2:43] Title I, some of the things we learned a few years ago relative to surveilling a presidential campaign. [2:49] We all know about that. We're just talking about 702. But all this is coming up, as everyone knows, [2:54] for reauthorization, 702 program for reauthorization, but we can address the Title I as well. [3:00] All that's coming due here in just four months. And so we felt it was important to have this [3:04] hearing where we begin to talk about some of the things that still need to be done. [3:09] I want to back up a second and say this. Last Congress, I do think, the good work of this [3:13] committee, some of our members working closely in a working group with members of the [3:19] House Intelligence Committee, I do think we had some good reforms that got put into the bill [3:24] last Congress. And a lot of that's due to the work of our witnesses here and the groups that they [3:27] represent. And we appreciate that. We codified procedures to reduce improper queries. Last year, [3:33] the number was down to 9,000 queries on U.S. persons. So important changes that were made to the 702 [3:42] program, safeguards protecting Americans' liberties, and of course, some changes also made to the Title I [3:49] section of the FISA law as well. I know our ranking member knows this. I know every member of this [3:55] committee knows this. We're the Judiciary Committee where we're supposed to be focused on protecting [3:59] the Constitution, the Bill of Rights, and the liberties that we enjoy as Americans. We think [4:07] it's important as we move forward that we do just that. And part of that is if you're going to search [4:13] this database and you're going to search using an American's name, phone number, email address, [4:19] we believe you should go to a separate and equal branch of government and get a warrant to do so. We think [4:24] that's fundamental. Everyone knows that last Congress, we were close to making that happen, [4:30] close as you can get without making it there across the 212 to 212. I'll never forget that vote. But we [4:38] want to hopefully get that included in the reforms that we put together as we move forward over this [4:43] next four months. But to start that effort, we've got some great witnesses here who will look forward to [4:48] hearing. But I want to yield back now and let the ranking member have his opening statement and then [4:52] we'll get right to our great panel. With that, I yield to the gentleman from Maryland. [4:57] Thank you very much, Mr. Chairman, and thanks to our witnesses for joining us today. Section 702 [5:04] expires April 19th next year. This gives us four months to put together a bill that prioritizes [5:11] protecting Americans' fundamental constitutional rights while preserving a program that advances [5:17] national security. Over the years, FISA has remained a subject of bipartisan collaboration on this [5:23] committee. And I really want to thank Chairman Jordan and Chairman Biggs for working with all of the [5:28] members of the committee to protect American civil liberties. When Congress reauthorized Section 702 last [5:35] Congress, we gave the executive branch two years to show that it could protect civil liberties without [5:40] the need for greater judicial oversight. We said that we would rely on the FBI's promise that the modest [5:46] changes, like requiring approvals for U.S. person queries in the Reforming Intelligence and Securing [5:52] America Act, or RESA, would be enough to prevent greater violations of civil liberties. And we promised [5:58] in turn that we would keep a close eye on how surveillance authorities are used during that time. This [6:04] two-year experiment is nearly complete now, and the results are alarming. We have witnessed an attack on [6:10] the FBI's internal guardrails against abuse of Section 702 authorities and an unprecedented increase in [6:16] government surveillance and an alarming coziness between the government and big tech, all of which [6:22] puts Americans' data and civil liberties in jeopardy. We must strengthen federal law to protect [6:28] American privacy and liberty, and Congress can start with FISA Section 702. As everybody in the room knows, [6:36] 702 was never meant to apply to American citizens. Under the law, the government can only collect [6:41] communications from targets who meet two criteria. One, they've got to be non-U.S. persons, and two, [6:47] they've got to be located overseas. Americans and people on U.S. soil are protected by the Fourth [6:52] Amendment that prohibits unreasonable searches and seizures, guarantees the warrant requirement, [6:59] and if law enforcement wants to look at American citizens' emails, they've got to get a warrant to do it. [7:05] Despite all these protections, because Section 702 enables the intelligence community to ingest an [7:11] incredible amount of data, American citizens' communications are often swept up in 702 collection. [7:18] When that happens, those records end up in the FBI's massive database, and under current law, [7:24] the FBI can search that database for U.S. person identifiers like Americans' names and street addresses [7:31] for evidence of potential crimes or threats to national security. And as the chairman says, [7:38] 10,000 people have access to that. Administrations of both parties have repeatedly abused this trove [7:45] of U.S. person data. Recent audits show that FBI has searched the 702 database for candidates for [7:52] federal office, Black Lives Matter protesters, and federal contractors, among other Americans, [7:58] who ought to be protected. Two years since we enacted RISA, however you might have felt about [8:04] the modest changes in that bill, the landscape has changed. For years, the leaders of this committee [8:09] have warned of how executive branch surveillance powers could be abused by administrations that don't [8:15] show sufficient care for the protection of civil liberties and who use cutting-edge technology to spy on [8:21] Americans and who ignore basic principles of due process and constitutional freedom to achieve their [8:27] own ends. In 2025, we know that we were right to worry. Here's just one example. I've been concerned [8:34] for years about the U.S. government purchasing and compiling data about our own people. That problem [8:40] has been compounded in this administration, which is actively building profiles on American citizens by [8:46] combining data traditionally siloed in separate agencies, your tax returns, your health records, [8:53] any interactions with police, with information purchased from tech companies. The administration [8:59] is breaking down the very few guardrails that still exist on protecting our privacy, enabling the [9:05] executive branch to track the movements of dissenters and supporters alike. So we have a lot to be [9:12] concerned about at this point. I'm glad we're proceeding in a bipartisan way for the legislative [9:18] defense of essential constitutional civil liberties. I look forward to hearing from all of our [9:23] witnesses today on how we can properly protect American civil freedom in this perilous era. And I yield [9:29] back to you, Mr. Chairman, the balance of my time. I thank the gentleman for a statement. Without objection, [9:33] all of the opening statements will be included in the record. We will introduce today's witnesses. [9:37] Mr. Brett Tolman is the Executive Director of Right on Crime, a nonprofit organization that advocates on [9:42] criminal justice issues. He's testified here many times, previously served as the U.S. Attorney for the [9:46] District of Utah, and is the Chief Counsel for the Crime and Terrorism for the Senate Judiciary Committee. [9:53] Mr. Gene Scherr is the General Counsel for the Project for Privacy and Surveillance Accountability, [9:58] a nonprofit organization that advocates for greater protections for privacy, civil liberties, and government [10:03] surveillance programs. He is also the managing partner of Share and Jaffe LLP, where he focuses on civil [10:09] appellate matters. Mr. James Chernowski is the Head of Emerging Technology Policy at the Consumer Choice Center. [10:16] He previously was a Senior Policy Analyst at Americans for Prosperity. His research focuses on the issues surrounding [10:22] technology and innovation. And Ms. Elizabeth Goyton is the Senior Director of the Brennan Center's Liberty and National Security [10:29] Program. She previously served as Senate Staffer and with the Department of Justice. Her work focuses on [10:34] presidential emergency powers, government surveillance, and government secrecy. I know many of you have been [10:40] here before, and we appreciate the work you've done for our country and for you being with us today. We welcome [10:44] all of you, and we will begin by swearing you in. Would you please stand and raise your right hand? [10:50] Do you swear or affirm under penalty of perjury that the testimony you're about to give is true and correct to [10:57] the best of your knowledge, information, and beliefs? So help you God. Let the record reflect that a [11:02] witness has answered in the affirmative. Thank you. You can be seated, of course. And please know, [11:07] you've been through this before, that your written testimony will be entered into the record [11:10] in its entirety. We ask that you kind of summarize that in five minutes, and we'll just go right down [11:16] the line like you were introduced. Mr. Tolman, you may begin. Thank you, Chairman Jordan, [11:24] Ranking Member Raskin, and distinguished members of the committee. Thank you for the opportunity to [11:28] testify today. Oversight of the Foreign Intelligence Surveillance Act is a debate that goes to the heart [11:34] of what it means to be an American. Commitment to the rule of law, the constitutional rights we hold [11:39] dear, and the principle of limited government. FISA is in desperate need of reforms. Or rather, [11:45] our country desperately needs to reform FISA. For decades, and with increasing regularity, [11:52] it has been the government's permission slip for warrantless spying on Americans. This is despite the [11:58] Fourth Amendment. To be sure, FISA serves an important national security interest. I would know I [12:03] helped write some of the FISA laws when I worked as chief counsel over crime and terrorism in the [12:09] Senate Judiciary Committee. And I later prosecuted national security cases as a federal prosecutor. [12:15] These credentials, however, don't contradict the harsh truth that the FISA system is flawed. [12:21] It enables the unconstitutional government surveillance and doesn't protect our civil liberties presently. [12:28] Nowhere is this more clear than with Section 702. Section 702 was sold to Congress as a vital tool to [12:35] target foreign adversaries. We were given high-stake assurances by DOJ and FBI leaders, namely James [12:41] Comey and Robert Mueller, that it would not be used improperly against honest Americans. I was in the [12:47] room when they represented it would not be abused. That was a lie. FISA abuse is not speculative. There is [12:56] clear record of systemic failure, constitutional betrayal, and the disregard for the rule of law [13:00] confirmed by the FISA court itself and government watchdogs. For instance, the Crossfire Hurricane [13:07] investigation used flawed information and deceit to justify FISA surveillance of Carter Page. Proves the [13:14] vulnerability the system is to political weaponization. Arctic Frost investigation, which targeted hundreds of [13:21] American citizens, including sitting Republican lawmakers, highlights how domestic political matters [13:26] are swept up by FISA. The FBI has carried out warrantless searches of Section 702 database involving [13:33] American lawmakers, journalists, political donors, civil rights protesters. One thousand six hundred [13:39] searches were conducted for Americans who were at a specific airport on a particular day. Two thousand backdoor [13:46] searches were done on athletes at a sporting event. NSA analysts searched for communications of [13:52] prospective tenant and rental property that they owned personally and for people met through online dating [13:58] sites. This is not national security intelligence gathering. It is domestic spying. With FISA set for [14:05] reauthorization in April, Congress faces an important question. Will we limit government or will we license its [14:11] continued Fourth Amendment violations? Internal policy changes by the offending agencies are not enough. [14:17] FISA must be rebuilt and reformed. Section 702, for example, it is necessary that Congress rewrites the [14:24] government. It is necessary that the Congress requires the government to obtain a probable cause warrant if [14:29] a search is done on a U.S. citizen in a domestic investigation. If this warrant requirement had been in [14:34] place, the vast domestic surveillance of Americans under Arctic Frost, for example, would have required [14:40] judicial review and likely would not have occurred. Section 704, which lets the government surveil [14:47] Americans abroad, believed to be a foreign asset, would benefit from heightened judicial review, such as [14:52] that declassified and released court opinions and the use of third-party experts who can review section 704 [14:59] applications. Section 705 can easily bypass the requirement for comprehensive judicial review, [15:06] allowing the government to move to a more intrusive form of surveillance with less scrutiny than a new [15:10] probable cause application would require. Reforms should center on the consistent probable cause [15:15] decisions. Lastly, FISA courts need structural reforms such as penalties for omissions or misrepresentations [15:22] like those used to target Carter Page. The FISC should also incorporate third-party advocates to [15:28] balance the weighted government proceeding and declassified FISC rulings. In conclusion, Congress must not be [15:34] complicit in facilitating a surveillance state and must either mandate reforms or allow authorities like [15:39] Section 702 to expire. I applaud this committee and its leadership for its thoughtful review, and I [15:45] stand ready to work with you to craft reforms that are conservative in principle, effective in practice, [15:50] and constitutional in design. Thank you, Mr. Chairman. Thank you. Mr. Scheer, you're recognized for five minutes. [15:57] Thank you, Chairman Jordan and Raskin and members of the committee. Thank you for the opportunity to testify [16:05] at this hearing, which is particularly timely as we prepare to celebrate the Declaration of Independence [16:11] next year. In considering the reauthorization of FISA Section 702, which my organization supports, [16:20] the overriding question faced by this body is the extent to which it will allow the intelligence community [16:27] to continue engaging in warrantless surveillance of Americans and without, as the declaration put it, [16:34] the consent of the governed through its representatives in this body or otherwise. And as you know, [16:40] absent consent or truly exigent circumstances, the Fourth Amendment generally condemns warrantless searches. [16:48] And while last year's reauthorization was in many respects a good first step toward needed reform, [16:55] at least four important issues remain unresolved. Number one, Section 702 still allows the government [17:03] to search Americans communications without a warrant through so-called backdoor searches. Number two, [17:10] federal agencies routinely purchase and review our geolocation, internet search history, and other [17:17] sensitive personal information from data brokers, all without a warrant and without allowing providers [17:23] even to inform us of those searches. Three, a newly expanded definition of electronic communication [17:31] service provider under last year's reauthorization allows the NSA to force countless small businesses [17:40] and other organizations to assist in warrantless surveillance. It even includes houses of worship, [17:47] thus ensuring that even atheists will now have to agree that someone is listening when we pray. [17:53] There's still no provision. Number four, there's still no provision requiring the FISA court to include [18:02] amici, experts who represent the privacy interests of all Americans in Title I surveillance proceedings [18:09] involving members of Congress, political campaigns, and other sensitive targets. So how then should Congress [18:17] approach the upcoming reauthorization? First, we believe Congress should institute a warrant requirement with [18:23] appropriate exceptions before the FBI or other agencies can search and review Americans communications [18:30] collected under 702. Just last year, as the chairman mentioned in a near this committee in a near unanimous [18:37] bipartisan show of strength, this committee voted to close that loophole and it should do so again and this [18:44] time insisting on closing that loophole as a condition of reauthorizing 702. Second, it is critical for Congress to [18:53] rein in the federal government's ever-growing purchase and warrantless searches of Americans geolocation and [18:59] other sensitive personal data purchased from data brokers. I applaud the committee for its impressive [19:06] bipartisan work over the last several years to address this issue, but this next reauthorization is the [19:12] time to insist that this data broker loophole also be closed. Third, the definition of electronic communication [19:19] service provider under FISA should be narrowed to exclude houses of worship and countless small [19:25] businesses and other organizations that were unfortunately included in last year's reauthorization. [19:33] There's no justification for secretly coercing these entities to assist the NSA and the FBI in [19:39] conducting surveillance. Fourth, Congress should require amicus participation in politically sensitive FISA cases [19:47] by finally enacting a robust amicus provision of the sort that passed the Senate in 2020 with 77 votes. [19:57] Nearly a decade after the Trump campaign and transition were illegally surveilled, this key reform, [20:02] which would have prevented many of the abuses that occurred in 2016, is still not in place. And I have [20:08] seen the impact of that outrageous abuse in my separate work representing Carter Page in challenging that abuse in [20:16] court. And once again, I applaud this committee for including a robust amicus process in the reform legislation [20:22] last year. And I urge you to do so again, also as a condition of the new 702 reauthorization. In short, [20:31] with every passing year, it's harder to square our emerging surveillance state with the consent of the [20:36] governed articulated in the Declaration of Independence and embodied in your article of the Constitution, [20:43] article one. But with bipartisan cooperation that has come to define this committee's work in this important area, [20:50] I'm confident that you can right the ship. Thank you, Mr. Chair. [20:57] Mr. Chernowski, you are recognized for five minutes. Thank you, Mr. Chairman, [21:00] Ranking Member Raskin and members of the Judiciary Committee for holding this critical hearing on the Foreign Intelligence [21:06] Surveillance Act. Our founding fathers enshrined individual liberty and privacy as bedrock ideals of our Constitution. [21:12] Yet over the years, we've seen a surveillance state that only continues to expand, operating with limited [21:17] accountability, all under the guise of national security. And national security is vital, and few [21:23] would deny the many dangers facing our great nation today. I would know firsthand, growing up in Queens, [21:28] New York, and experiencing the terrible events and aftermath of 9-11, a tragic day that showed us the [21:33] cost of being unprepared, but also demonstrated just how quickly extraordinary powers, once granted, can become [21:39] normalized. And history warns us of the dangers of unchecked government power. Time and time again, [21:45] we have caught the intelligence community raiding the civil liberties fridge, taking liberties that [21:50] were supposed to be off limits, apologizing barely when they're caught if we're lucky, promising to never [21:55] do it again, and then returning to business as usual. It would be humorous if the consequences to [22:01] Americans' rights were not so serious. Too often, agencies appear more concerned with managing bad headlines [22:07] than safeguarding the privacy and rights of the people they were created to serve and protect. [22:11] This repeated cycle of violations has resulted in an erosion of public trust in the very institutions [22:17] charged with keeping Americans safe. In December of 2024, CNN's Harry Enten cited Gallup polling [22:24] showing that support for the FBI in particular was at an all-time low, with just 41 percent of [22:29] respondents saying that the agency was doing either an excellent or great job. That represented an 18 percent [22:35] drop in just 10 years. That is a damning indictment against the key agency responsible for keeping [22:41] Americans safe. An intelligence apparatus that lacks the public trust becomes less effective, [22:47] not more. Americans are less likely to cooperate with, have support for, or believe in institutions [22:54] that they fear. And that is precisely why reforms are not optional. They are urgently needed. Congress has the [23:01] responsibility to restore the balance. And when it comes to addressing the litany of issues under FISA, [23:06] there are many out there in terms of solutions. But here are four key reforms that Congress should [23:11] prioritize. First, close the backdoor search loophole that allows for warrantless searches of Americans [23:17] communications. Second, close the data broker loophole, which lets agencies buy their way out of [23:23] constitutional constraint. Third, strengthen third-party oversight at the FISA court, improving due process and [23:31] casting sunlight on decisions too often made in darkness and secrecy. And lastly, fix the overly [23:37] expansive definition of an electronic communications service provider, a definition that dangerously [23:42] brought in the kinds of entities that can be deputized into the surveillance apparatus, a recent issue [23:46] stemming from FISA's reauthorization under the Reforming Intelligence and Securing America Act, [23:51] also known as RESA. These reforms that I highlighted here today will not end surveillance, nor will they [23:58] prevent legitimate national security operations. The country will not go dark, nor will it find itself [24:04] defenseless against foreign threats. But what they will do is ensure that Americans' rights are not [24:09] flagrantly disregarded in the process of carrying out those duties. The Constitution is not simply a piece [24:15] of parchment to be admired. This is a moment to prove that America's strength lies not only in its defenses, [24:21] but in its devotion to liberty. Let us stand firm so that freedom is not just promised, but practiced. [24:27] As the committee with primary jurisdiction, you have the power to shape policies that balance security [24:32] and freedom. And by advancing meaningful reforms, you can restore public trust, safeguard rights, and [24:39] ensure that our intelligence agencies serve the American people, not surveil them. I thank you for the [24:44] opportunity to share our thoughts with you today. I look forward to the conversation and to answering your [24:48] questions. Thank you, Mr. Janowski. Ms. Goytin, you were recognized for five minutes. Chairman Jordan, [24:57] Ranking Member Raskin, and members of the committee, thank you for this opportunity to testify. [25:02] Congress conceived and enacted Section 702 as a foreign terrorist surveillance program. But over the [25:08] last 17 years, it's become something very different. Today, Section 702 is a rich source of warrantless [25:15] access to Americans' communications. It is long past time for Congress to put an end to this betrayal [25:22] of Americans' trust. Section 702 authorizes the government to target any foreigner overseas for [25:28] foreign intelligence purposes and to collect all of their communications without an individualized court [25:34] order. This surveillance inevitably sweeps in Americans' communications in large amounts because [25:40] Americans communicate with foreigners. And because those foreigners need not be suspected of any [25:46] wrongdoing, these communications can and do include purely innocent conversations between [25:53] Americans and their friends, family members, and colleagues overseas, a point that was emphasized by [25:59] the Privacy and Civil Liberties Oversight Board in its 2023 report. Now, if the government's intent were [26:06] to spy on those Americans, it would have to get a probable cause order, a warrant in a criminal investigation, [26:13] or a FISA Title I order in a foreign intelligence investigation. The government gets around this [26:19] requirement by certifying to the FISA court that it is not using Section 702 as a way to access the [26:27] communications of particular known Americans. And yet, once the data is in their hands, all of the agencies [26:35] that receive Section 702 data routinely run warrantless electronic searches for the communications of [26:42] particular known Americans. This is a bait and switch that drives a massive hole through the Fourth [26:49] Amendment and FISA. In 2023, the last year for which we have complete data, the FBI conducted more than 57,000 [26:59] of these backdoor searches. Congress and the FISA Court have attempted to put some limits on this [27:04] practice, but the FBI has engaged in persistent and widespread violations of those limits according to the [27:12] FISA Court. Those violations have included searches for the communications of members of Congress and [27:17] congressional staffers, protesters from across the political spectrum, multiple U.S. government officials, [27:25] journalists, and political commentators, and more than 19,000 donors to a congressional campaign. [27:30] In April of last year, Congress passed the Reforming Intelligence and Securing America Act, [27:37] which sought to rein in the FBI's backdoor searches, largely by bolstering internal oversight and reporting [27:44] mechanisms. We don't know what the impact of these reforms has been, however, because the FBI failed [27:52] to track all of its queries as required by law. Specifically, last August, the Justice Department [27:58] discovered that the FBI was using a tool to search for the communications of specific individuals, [28:05] including U.S. persons, from among a particular target's communications. The FBI did not count [28:11] these as queries, and so it didn't follow any of the procedures required by law, such as obtaining [28:18] attorney approval or providing a written justification for U.S. person queries. The government told the FISA [28:24] Court that it lacked the information to determine whether there was a sufficient legal basis for these [28:30] queries. As a result, we have no idea how many queries the FBI conducted in 2024. The number that appears [28:39] in the annual statistical report is 5,518. That's the number of known queries, the queries that the FBI [28:47] actually counted. The total number of queries remains unknown, as does the FBI's compliance rate. This is [28:56] important information, and Congress should have it, before it reauthorizes Section 702. But let me be [29:02] clear. Even if the FBI conducted only 5,000 warrantless searches for Americans' emails, text messages, and [29:10] phone calls last year, that would be 5,000 too many. Warrantless access to Americans' private communications [29:19] is an invitation to government overreach and abuse under any administration. All of the internal [29:27] oversight in the world cannot substitute for the balance that the Framer struck in the Fourth Amendment. [29:33] As Justice Roberts said in a 2014 case about the privacy of our cell phones, the founders did not [29:39] fight a revolution to gain the right to government agency protocols. Congress must do now what it should [29:46] have done years ago require the government to get a warrant or a FISA Title I order before accessing [29:54] Americans' communications obtained under Section 702. Thank you, and I look forward to your questions. [29:59] Thank you, Ms. Goytin. All of you, well done. Without objection, the following documents will be [30:05] included in the record. A letter from the Reform Government Surveillance about the need to reform the [30:09] Foreign Intelligence Surveillance Act, a letter from a coalition of 25 organizations about the need to [30:13] reform the Foreign Intelligence Surveillance Act, and a statement for the record on the topic of today's [30:17] hearing from the Electronic Frontier Foundation. We will start with the gentlelady from Florida who was [30:23] part of our working group last year on this issue. The gentlelady, Ms. Lee, is recognized from Florida. [30:30] Thank you, Mr. Chairman, for holding this hearing and to our witnesses for appearing with us here this morning. [30:36] Last Congress, I was proud to sponsor the Reforming Intelligence and Securing America Act, or RISA, [30:43] which was signed into law. RISA included sweeping reforms designed to bring meaningful changes to [30:50] surveillance operations and prevent the past abuses of FISA from occurring again. As Section 702 is now up for [30:59] reauthorization, I'm committed to working with this committee to pass a bill that equips our intelligence [31:04] community with the tools that they need to protect our national security against threats while [31:09] continuing to protect the civil liberties of Americans. There are two facts that should be [31:15] evident from today's hearing. First, serious failures occurred under prior FISA and Section 702 [31:21] authorities, particularly in the FBI's queries of U.S. person data. Second, Congress acted, reforms were [31:28] imposed, and those reforms are now demonstrably working. The Department of Justice Inspector General [31:34] has now completed the statutorily required post-reform review under RISA. That report confirms that the FBI [31:41] did, for years, run non-compliant U.S. person queries, that the Foreign Intelligence Surveillance Court [31:47] found those practices inconsistent with both statutory law and the Constitution, and that this problem [31:53] persisted well into the 2020s. Those facts are gravely serious, demanded correction, and did not resolve [32:01] themselves. But the IG also found that reforms from RISA have been implemented, including mandatory [32:08] pre-approval by supervisors or attorneys for U.S. person queries, mandatory DOJ audits of every one of [32:14] those queries, written factual justifications, escalating discipline for negligent, reckless, and intentional [32:20] violations, and many others. Most importantly, the data now shows a dramatic reduction in non-compliant [32:26] queries. The IG found that widespread non-compliant querying no longer appears to be occurring, [32:31] and that the remaining errors are overwhelmingly administrative typographical as opposed to [32:36] structural or abusive. None of this means that oversight is finished. The IG explicitly noted that [32:43] its post-reform review covers only one year, and that continued monitoring is essential. [32:48] Today, we must continue to assess what further action is needed while recognizing the purpose of FISA, [32:55] the FISC, and 702. Holding the FBI accountable does not mean stripping the FBI of targeted vital tools [33:03] that are needed to protect the American people. We did not respond to the past failures by abandoning [33:07] national security. We responded by tightening the law, raising the standards, hardwiring accountability, [33:14] and making violations visible and punishable. And that is what we must do again. [33:19] Mr. Schur, as you know, FISA now requires the FBI to obtain supervisory or legal approval before [33:28] conducting U.S. person query of Section 702 acquired information, except when there's a reasonable belief [33:33] that the query could help mitigate or prevent threat to life or serious bodily harm. Why was that additional [33:40] layer of oversight important? It was a good change and it certainly reduces the number of [33:54] abusive instances of surveillance and examining 702 data that we saw in the past. As we've all [34:01] discussed, there are several other things that need to be done, but that was a very good and wise change [34:06] in my view. And to what extent has the increased auditing and mandatory reporting, in your perspective, [34:13] changed personnel behavior? Are there measurable improvements with this compliance? And tell us [34:18] specifically what additional requirements you believe we need to impose. [34:24] Well, there do appear to be improvements. However, as Ms. Goitin mentioned, [34:30] because the FBI has apparently changed what it considers to be a query, it's not entirely clear [34:37] the extent to which the number of queries has actually been reduced. And in terms of additional [34:44] reforms, I would just reiterate the four that I mentioned in my testimony, closing the data broker [34:51] loophole entirely. You know, especially if the number of queries is relatively small, there's no longer [34:59] any argument that it would be a huge administrative burden to get a warrant before the database is [35:07] searched on Americans, right? And that's something that prosecutors do all the time. They have [35:14] well-established mechanisms whereby they go to a magistrate, in this case it would be the Fisk, but they [35:20] send them an email, they outline why they think a warrant is warranted, and they typically get a [35:26] warrant very quickly in response. It's not a huge burden of the sort that would be suggested if you looked [35:33] at the Carter Page warrant applications, for example. The Carter Page warrant applications were very [35:39] extensive, but they are not typical of warrant applications in general. Typically, getting a warrant is [35:46] a very simple and quick process when a prosecutor has a good reason for getting it. [35:51] Thank you, Mr. Chairman. I yield back. The gentleman from Maryland is recognized. [35:55] Thank you, Mr. Chairman. Thanks to all the witnesses for your testimony. Ms. Coteen, [36:02] let me start with you. The Lord Acton famously said that power corrupts, absolute power corrupts, [36:09] absolutely. There was a Supreme Court decision called Smith versus Maryland 50 years ago about the [36:15] Pen Register where Marshall and Brennan said that unregulated government monitoring of people's private [36:23] communications is most fearful for people who have nothing to hide, people who have not done [36:31] anything illicit. And I wonder if you would maybe reflect for a moment on those two thoughts in the [36:36] policy choice that confronts us today. Yeah, absolutely. I think that's true. There is a sense, [36:41] um, and we hear it sometimes from those who actually oppose getting a warrant requirement, [36:46] um, that if people haven't done anything wrong, then they don't need, uh, they shouldn't have any need for [36:52] the protection of a warrant. By this view, warrants protect the guilty, not the innocent. [36:56] That makes no sense, right? I mean, warrants are there to make sure that people who are in fact [37:01] innocent are not subject to these searches and that the government has to have probable cause that [37:05] someone has engaged in wrongdoing in order to access their private communications. There are all kinds [37:11] of ways that, uh, access to private communications can be used against a person, uh, even if they show no [37:19] evidence of crime. Uh, and we see this in countries that don't have Fourth Amendment protections or the [37:24] constitutional protections we have in this country. Uh, you know, one of the primary features of [37:30] authoritarian regimes is that people are tracked, um, and that their communications are monitored and [37:36] this is used to keep them in line and prevent political dissent. That is not America. That should [37:41] not be America. And the Fourth Amendment is an absolutely critical safeguard against that kind of overreach. [37:46] I'm troubled by the government's contracts with Palantir to create software that allows the [37:52] government to assemble and combine previously siloed information in particular departments with data [38:00] purchased from data brokers. Could you explain to the committee how purchased data can be used to compile [38:07] comprehensive profiles of American citizens? Sure. The word silo sounds very negative, [38:14] uh, but in fact there's a good reason why data that is collected for certain purposes isn't necessarily [38:19] widely shared. Often if there's a major privacy intrusion involved in collecting the data, what [38:25] justifies that privacy intrusion is the specific use to which the data is being put. Uh, that same balance [38:31] of factors doesn't apply in every situation and so it doesn't make sense to distribute the data more widely [38:37] where the privacy intrusion is greater and the justification might be lesser. So you have different parts of the [38:42] government that are obtaining very sensitive data, um, sometimes from data, often from, from data brokers. This [38:48] is often data that is so sensitive that it would need a warrant or a subpoena or a court order to acquire [38:54] if the government wasn't able to purchase it from a data broker. And this sensitive information may be used [39:00] initially, um, for very specific purposes. If they are all, all these pieces of data are shared across the [39:06] government and put together. It is possible. It could be possible to build, uh, dossiers on Americans [39:13] that would give, uh, a startlingly complete picture of their private lives, their associations, their [39:20] habits, their beliefs. This is information that our government in a free society should not have access [39:27] to unless there is a specific justification for a specific purpose. And that's what the warrant requirement [39:32] is all about. Exactly. So, um, like a lot of members of this committee on both sides of the aisle, [39:38] I'm a former prosecutor and I, perhaps Mr. Tolman, you could address this because you were the US [39:43] attorney in Utah, as I understand it. Um, uh, when I first heard about this stuff, I confessed that my [39:50] reaction was, um, well, prosecutors oftentimes come into possession of information, um, without a search [39:59] warrant. For example, the, the Kimmel search, a search incident to arrest will produce evidence [40:04] of another crime. The Belton search with automobile stops in some sense that becomes the bread and [40:10] butter of what a lot of prosecutors do. And so I thought to myself, well, if this information just [40:17] accidentally inadvertently comes into possession of the government, then what's the big deal of [40:22] letting the government use it? And I wonder why as a former prosecutor, you would say this really is [40:27] a completely different matter and that's comparing apples and oranges. Yeah. I appreciate the question [40:34] because I think we think of it wrong when we assess, um, the use of extraordinary tools to gather [40:45] intelligence in this country. We're not looking at it through the criminal justice system lens. [40:51] We're looking at it through national security. And there's the mentality of national security review [40:56] is that the fourth amendment does not apply. So once you, once you cross that, that line, [41:03] you no longer are concerned about whether or not you're following certain constitutional protections. [41:09] And that should scare American citizens that we have people that will exercise that power who have [41:14] crossed that line and are no longer thinking of it in terms of what they traditionally would as a [41:19] prosecutor. Thank you, Mr. Chairman. That gentleman from Arizona is recognized Mr. Biggs. Thank you, [41:24] Mr. Chairman. It's good to see all of you again. And hopefully we have an even better outcome this, [41:31] this coming year than we had last time. So let's just talk about this for a second. Is, is the idea [41:39] that an executive agency is going to have a manager, a supervisor review to determine whether you, you [41:49] should actually have access to sensitive data, is that, is that the same thing as a, an independent judicial body [41:59] requiring you to produce probable cause in order to get a warrant to search for that same sensitive data? [42:07] Just each one of you, is that the same thing? Not at all. Yeah, it may be, it may be useful, but, but the process, [42:16] the constitution puts in place for dealing with those kinds of controversies is that the article three branch [42:22] serves as an independent check on the, on, on the executive branch in order to ensure that Americans' privacy is protected. [42:29] And we shouldn't, we, we shouldn't abandon that lightly. Others quickly. I would quickly say where you stand on an issue [42:37] depends on where you sit. I rarely had any supervisor that pushed back against any request I had to approach either the grand jury [42:45] grand jury or a judge for a warrant. Yeah. Yeah. I, I agree with what's been said. I think that [42:51] simply having a manager in place doesn't go and, and have the same kind of protection as a, as a judge. [42:55] That's a great thing. I, I couldn't agree more. And also it's a different standard. Probable cause is a [42:59] very different standard from reasonably likely to produce foreign intelligence. Yeah, it's not only a [43:04] different standard, it's a different entity that the constitution has established to protect the rights of [43:12] all people guilty and innocent. It protects everybody's rights. But when we say, okay, [43:17] we're going to allow the FBI supervisor, we're going to trust the FBI supervisor. Hey, have they [43:25] been approved by either the voter or by the house of representatives? No, they they've been hired by [43:32] somebody. They're working in the same agency, ostensibly with the same objective rather than the [43:38] objective of protecting rights. So that's an interesting dichotomy there. Uh, the next thing [43:44] is when we get to, uh, this notion of the fourth amendment, not for sale. Have you seen instances [43:52] where the federal government or state or local government has attempted to go around constitutional [43:58] protections by buying data from private entities and then circumventing the fourth amendment requirement? [44:06] Ms. Goethen. It happens constantly. The Supreme Court has held that cell phone location information, [44:12] historical cell phone location information, uh, in significant, in sufficient amounts, a week's worth [44:17] of historical data is, uh, protected by the fourth amendment and that the government actually needs a [44:21] warrant, uh, to compel production of it. Uh, and yet multiple federal agencies, uh, the FBI, DEA, Secret [44:31] Service, different components of DHS, Department of Defense, IRS. I think mostly all of them are buying [44:38] access to vast databases of Americans' cell phone location information. So, um, we also know that the [44:50] definition of query is now under, uh, dispute, apparently. Um, can you expand on that, Mr. Scherer? [45:01] You touched on that. Um, can you expand on that just for a second? Apparently what the FBI did recently [45:12] is they, uh, they started treating a mechanism by which they sort data in the database, which of [45:20] course requires them to, uh, to look at the names and information, identifying information about specific [45:26] people. But apparently they have some kind of a sorting process that they go through in looking at [45:31] the data and they don't count the sorting as a query. Uh, they only actually count as a query when [45:37] they, when they drill down on us, on a specific individual. And so, so there is no way to determine [45:43] how many actual, what used to be called queries are taking place under the new system. You, we don't [45:49] know, but they reported the IGU just reported a couple of months ago that it was 9,000, 9,000. So [45:56] if that's, if let's just, let's just assume, are you window that that is the correct number? Well, [46:02] then that is a manageable number to require a judicial warrant before you conduct that query. [46:09] Is it not Mr. Tolman? It absolutely is. And in fact, uh, my conversation with a former chief justice [46:17] of the Fisk was his greatest concern was the fact that there was so much pressure to grant everything [46:24] that was presented to them that they didn't have the ability to review it thoughtfully. Now they do. [46:30] Uh, my, my time has expired. There's so much more I would like to ask, but Mr. Chairman, I have, uh, [46:35] some articles I'd like to include into the record if I might. Sure. Uh, this is a, uh, this is a truth, [46:40] uh, from April 10th, 2024, from President Trump saying, kill FISA. It was illegally used against me [46:46] and many others. They spied on my campaign. Um, this is one is entitled, uh, warrantless FISA searches [46:52] are in constitutional judge says in landmark ruling government surveillance erodes trust [46:58] between citizens and government objection more than 30 bipartisan organizations urge Congress [47:03] against reauthorizing spy powers and spending bill without um, and then, uh, and one entitled [47:10] curbing the power of surveillance state section 702 reform and object. Thank you, Mr. Chairman. [47:16] Yeah, I would just add before recognizing generally from California to the gentleman's first point, [47:20] not only is permission from a manager supervisor in an agency different than probable cause, [47:27] they didn't even follow the rules they'd set up within the agency with the manager so that they [47:30] didn't even follow those rules. That is, that is why we need the tried and true standard. [47:36] The gentlelady from California is recognized. Uh, thank you, Mr. Chairman. I, as I listened to, [47:41] uh, the witnesses, I was thinking back. It was, I think a little more than 10 years ago that Mr. Massey and I [47:48] offered an amendment with the help of then a Congressman Justin Amash, uh, that would have [47:53] prevented all of this. Uh, it did pass the house and never, uh, went, uh, into effect. Uh, and we have [48:02] been, uh, over the years, uh, striving to do this and somehow no matter which party is in the majority, [48:10] uh, the intelligence committee always manages to thwart our efforts for reform. And I am hoping [48:18] that that could change this year. We certainly failed last year, uh, in fixing the core problems. [48:26] Uh, we have a chance to change this. And in fact, I'm working, uh, to reintroduce an updated, [48:32] a bipartisan, bicameral government surveillance reform act, which will finally require warrants to read [48:40] America's messages, ban dragnet surveillance, stop the government from buying personal data. [48:46] Uh, and I'm hoping that many on this, uh, committee will join in that effort as we have in the past. [48:53] This is one of those, uh, issues where, uh, we do work together on a bipartisan basis. And I'm hoping that [49:00] we can finally succeed this time. You know, the FISA court itself has called out the FBI for repeated [49:08] unlawful searches, snooping on political donors, journalists, members of Congress, even protesters. [49:15] Um, and I think it's, it's past time for us to fix this. If the government wants to read an [49:22] American's email or texts caught up in foreign surveillance, they should need a warrant. Uh, [49:28] the FISA court found that the FBI misused the loophole hundreds of thousands of times. [49:35] Uh, the NSA can resume collecting communications that merely mention a foreign target that's [49:41] permitted by law. Um, they can still buy private data like location, web browsing messages. Um, [49:50] and we're seeing, as we've mentioned, a growing trend of federal agencies, including defense and [49:56] intelligence contracting with companies like pallet here, uh, to compile, uh, data. So I'm, [50:03] I'm hopeful that we can move forward, but I have a couple of quick questions. Um, Ms. Goytan, [50:11] the, there is an expanded scope of who counts as an electronic communication service provider. You [50:19] referenced that in your testimony, although the practical effects, I think are classified. [50:24] Could you briefly explain what kind of businesses could now be required to assist government surveillance, [50:30] such as data centers, cloud storage providers, or even companies that simply manage equipment [50:36] that carry communications? Sure. So in the past, the way that the surveillance has worked is that the [50:42] government has served directives on electronic communication service providers. We're talking [50:47] about Verizon and Google, um, companies that actually have direct access to our communications [50:53] because they fill us facilitate our communications. That's the service that they provide. Uh, and they [50:58] would turn over the communications of targets. Um, there was a FISA court, uh, opinion a few years ago, [51:04] which found that data centers for cloud computing, at least it was reported that that was the type of [51:10] provider at issue, uh, did not qualify under that definition. Um, the Biden administration wanted to make sure that, [51:16] that they were included, but they didn't want to reveal that that was the type of provider at issue [51:21] because that information was and remains classified. Uh, and so, uh, they deliberately solicited an overbroad [51:28] amendment, one that was written in vague and very broad terms so that no one could figure out who, [51:33] what kind of provider it was. And so what it now allows is the government can compel the assistance of [51:40] any provider of any service as long as that provider has access to equipment on which communications [51:48] are rooted or stored. Well, pretty much every American business and a lot of organizations [51:53] provide some kind of service and they all have access to communications equipment. That's a phone [51:59] or a computer. So, and there are some exceptions, hotels, restaurants, libraries, [52:05] but the vast majority of ordinary businesses that Americans frequent. And for example, the commercial [52:12] landlords of the buildings where tens of millions of Americans go to work every day can be forced to [52:18] assist the government with surveillance. And this part is really important because these businesses [52:23] don't have the ability that Verizon or Google have to isolate and turn over specific communications. [52:29] They may have to give NSA personnel direct access to their communications equipment and all the [52:36] communications that run through that equipment, including purely domestic communications. And then [52:41] the NSA will basically be on the honor system to extract the communications of foreign targets. [52:47] Thank you. Mr. Chairman, I just note that we also need to pass the, uh, privacy, uh, bill that [52:54] Congresswoman Eshoo and I introduced a while ago and I'm reintroducing because we need to get [52:59] it at FISA, but we also need to get it at the source so that people cannot sell our private data. [53:05] And with that, I yield back. Uh, I think the gentlelady, uh, the gentleman from the gentleman from [53:09] California is recognized. Thank you. Uh, briefly, does anyone on this panel believe that Senator Blackburn, [53:20] Senator Graham, Senator Haggerty, Senator Howley, Senator Johnson, Senator Lewis, Senator Sullivan, [53:27] Senator Tupperville or Congressman Mike Kelly, uh, are, uh, a risk to national security or would be [53:36] reasonably believed to be a risk or should have been surveilled, uh, under a program targeting them. [53:45] Seeing none, I will move on. Uh, they're my friends. They were targeted because they were Republicans. [53:53] That is unforgivable. And the FBI cannot expect anything other than a consent decree and criminal [54:03] punishment if they ever do it again, anything less. And I'll go to, uh, Mr. Tolman. If you were [54:10] prosecuting a case, would you accept anything less from somebody who committed that crime? Assuming [54:15] you're not locking him up for years for doing it in the beginning. No, absolutely not. But our history [54:21] shows, for example, in the attorney, Kevin Clinesmith, that he was prosecuted for his [54:27] misrepresentation to the Fisk, but received no jail time. So is there meaningful deterrence? And [54:33] presently there is not. Well, it is, it is true that, uh, no one is above the law, but there's a caveat [54:40] unless you are the law. And unfortunately the FBI and Department of Justice are the law. And although I, [54:47] I trust the current inhabitants, I trusted the Bush people and I was wrong. I trusted [54:54] each of the successors and I was wrong. Let me just go through a couple of things, [54:59] sort of to put it in perspective, maybe for the record and maybe for people who were truly lay [55:04] people. Um, if, uh, if I wanted to find out if you were growing pot illegally in your house [55:15] and I flew over with a heat sensor, uh, and then determined that you had hot spots and then raided [55:23] your house without a warrant, what would I be doing? Would that be okay? No, it would not be okay. [55:33] And isn't it true that, uh, the, uh, the Kylo, uh, decision by the court was right on that point. [55:41] But in that, in that, if I understand correctly, what they did is they, they, they said that the reason [55:49] it was unacceptable versus let's say just flying over in an airplane and seeing plants growing in [55:56] your backyard was because of the tools used, correct? Now, as we're talking about this data, [56:06] is that kind of data available to, uh, Mr. Biggs or Mr. Jordan? So by definition, the first pillar of [56:17] the Kylo decision, which is that the tools are not readily available to the public. This massive amounts [56:24] of data and the ability to gather it, they wouldn't pay a hundred million dollars if it was available [56:29] any other way, right? If they could just get it themselves. So they've met the first requirement. [56:36] What is any second requirement that you can see that would allow them having met the first requirement [56:43] that what they're getting is material, a tool, if you will, not available to the public. It's not [56:49] ordinary eyesight. It's not just walking up and sniffing something at the door. If this tool is by [56:56] definition special, then the use of the tool falls directly underneath this historic question of fourth [57:04] amendment without anything else. Does anyone see a way that they can carve their way out of this? Yes. [57:13] Well, they will try to say that a lot of this information just isn't protected by the fourth [57:17] amendment at all because, because we are voluntarily sharing it with the fourth amendment. Oh, you're [57:22] absolutely right. And I agree with you except the fourth amendment. I personally don't think that you're [57:27] not agreeing with me. I personally, no, I agree with you that that's what they'll try to do. [57:32] I personally have seen this tool that can pick up heat and water damage above your ceiling. My son has [57:40] one. It's fabulous. It lets you find where you got a leaky pipe. It lets you find where there's a leak in [57:46] your heating system. Every H, you know, heating and air conditioning company either has one or should have [57:53] one. But the fact that a special tool exists doesn't change the fact that it's a special tool, does it? [58:03] And by the way, heat coming out of your house was never considered to be protected until the court said [58:10] the tool and the source of the tool is what determines that. It's not an ordinary eyesight. [58:16] So I'm going to close, Mr. Chairman, by saying shame on the court for not already having taken a case up [58:25] and done this. But if they won't do it, this committee must do it in reauthorization. And I yield back. [58:31] The gentleman yields back. The gentleman from Tennessee is recognized. [58:34] Thank you, Mr. Chair. Ms. Gotien, we've been doing this for a long time on different issues. [58:41] Let me ask you a question. The problem is, is it the law or is it the enforcement of the law? [58:50] It's both. But those two things are related. I mean, one of the things that I've wondered when I look at [58:56] these massive compliance failures over the years, I don't think all of those compliance failures were [59:02] intentional. I don't think all of them were negligent. I think that they have built a system [59:07] that is so massive and so complex and the rules are just so sort of arcane and intricate [59:14] that it might actually be impossible to completely enforce the rules as they would need to be enforced [59:22] to protect Americans' privacy. That is one major advantage to the warrant requirement, is that it's [59:27] so much simpler. You reduce the need for all of these massive layers of oversight for different rules, [59:34] for different tools you might use, for different queries, figuring out is this a query, is this not [59:38] a query. It's very, very simple. If the government wants to access an American's communications, they [59:44] submit a warrant application, they go to the court or a Title I application. It simplifies the process [59:51] process. And that will itself, even leaving aside the fact that you now have an independent branch [59:57] of government performing this review, will make compliance achievable. [1:00:06] With AI, are we going to have more and more problems because there will be more and more data? [1:00:10] Absolutely. And I think with AI, we're going to have to really re-examine [1:00:15] information how U.S. person query is even defined, because if AI is used in a way that can select U.S. [1:00:24] person communications without actually using what we think of as U.S. person identifiers, [1:00:29] then we are sort of right back where we were before with really no limits on governmental access [1:00:36] to U.S. person communications. So yes, that is an issue we will have to address. [1:00:41] Has the FISA court been fairly consistent in how they've dealt with these issues? [1:00:48] I mean, what I would say is that the FISA court has been remarkably tolerant of just this long history [1:00:56] of abuses. It's, you know, we focus on the FBI's querying abuses in recent years. This program has been [1:01:03] plagued with violations and noncompliance since its inception. And I'm not just talking about the FBI, [1:01:11] I'm talking about the NSA in particular, the CIA. The NSA was violating its query restrictions [1:01:16] systemically for almost a decade after the program was put in place. And yet every year, [1:01:24] the FISA court has reauthorized this program. A couple of times, they've waited a few months for [1:01:29] new layers of oversight to be put in place. But to me, it's an example of fool me once, shame on you, [1:01:36] fool me twice, shame on me, because it's been a 17-year pattern of violations, extensive systemic [1:01:45] violations. And yet the FISA court, you know, points out the violations, is upset about them, [1:01:51] says they're unacceptable, and reauthorizes the program. Let me go to another issue, I guess. [1:01:57] Mr. Ice, I asked you about those seven or eight, nine senators and reps and whether anybody thought that [1:02:03] they should be subject to any reviews. Well, as I understand it, the idea was not that they were [1:02:07] because they were Republicans. It was because they had- Mr. Smith had reason to believe that, [1:02:12] and a court agreed in issuing a warrant, that they had possible connections with the Trump White [1:02:18] House and the overthrow of our government. Did that not- would that not give any of y'all the belief [1:02:24] that they should have been queried or looked at their records or their phone calls? Cody? [1:02:34] Oh, I'm so sorry. I thought you were asking. Can you just repeat that? I was- [1:02:37] The idea that Jack Smith got a warrant because- and apparently because he thought that these people [1:02:42] might have some contact with the president and the committee to overthrow the government, [1:02:46] whatever it was. Right. So, I mean, I think what we're dealing with here is the fact that subpoenas [1:02:53] for communications records are extremely easy to obtain. You actually don't have to show that the [1:03:00] person in question is themselves involved in any sort of criminal activity. The standard is one of [1:03:06] relevance. That's a very low standard, and I think when we're talking about communications metadata, [1:03:14] which is incredibly revealing information. This is the information that the NSA was collecting in [1:03:19] bulk- Let me just go quick. My time's about to run out. I'm sorry. Million dollar question. Do you [1:03:23] think those nine people, because they were- had their metadata looked at, should get a half million to a [1:03:28] million dollars simply by going to federal court like- Well, I- I think if we're going to do that, [1:03:33] then I think that should be open to everybody who's had their metadata acquired based on this very, [1:03:38] very low standard. And that'll be a little tricky. Thank you. I yield back. Gentleman yields back. [1:03:44] Mr. Tolman, are we all in the database? Every single person, every single American? Yes. Yeah, [1:03:50] this database is huge, right? They're getting information on foreigners, but we're all getting [1:03:58] swept up in this. So this is one giant- I call it the giant haystack of information. And you got 10,000 [1:04:06] people at the FBI who can just- I'm gonna search on Mr. Tolman, on Ms. Goyton. I'm gonna- I'm gonna [1:04:14] search on whoever I darn well- And they've demonstrated that they can't police themselves. [1:04:19] Whatever the agency is, whatever rules they have, they can't police themselves. So this is why Congress [1:04:23] has to do it. And why not use the tried and true rule? That to me is like, this is how big this is. [1:04:30] I want to go down through a couple of things here that have been raised. First of all, to a gentleman [1:04:36] from Tennessee's questions in getting people's toll records. I do have a concern with this because some [1:04:43] of this was done for a long period of time. Mr. Smith went and got the toll records subpoenaed [1:04:51] from the carriers, the toll records of the Speaker of the House of Representatives. [1:04:56] And frankly, he waited until Mr. McCarthy became Speaker of the House to go get his toll records from [1:05:02] three years prior. And the real concern I have with that is they did it for a two month time span. [1:05:08] So to Ms. Goyton's statement, you can pattern someone's life. You can figure out all kinds of [1:05:15] things. Because they knew who Mr. McCarthy called, who called him, when the call took place, how long it [1:05:21] lasted. And if Kevin initiated the call, they knew where he was at when he did sell. Well, Shazam, [1:05:26] you can follow, you can figure all kinds of things out. So that's the concern when they do this. And we [1:05:31] need to, I think, frankly, look at it. It's why this committee passed the non-disclosure, the gag. So [1:05:39] that's the other thing. They get that information and then they tell the judge, they go to the judge, [1:05:44] tell the carrier, tell AT&T that they can't tell the customer that the government just got their phone [1:05:50] logs for two months, can pattern their life and know all that stuff I just talked about. [1:05:55] That's a concern. And so we've passed legislation on this committee. We hope it passes the House [1:06:00] here soon, which puts limits and restrictions on that, not just for members of Congress, of course, [1:06:04] but again, to everyone. You think that's a good piece of legislation we passed, Mr. Tolman? I'll come [1:06:09] to you. It's essential. Yeah, it's essential. Everyone agree with that? Yes. Yeah. So we got the [1:06:16] NDO issue. Mr. Raskin and I were talking about these, these areas of concern with privacy. [1:06:21] We have the third party data, you know, purchasing data, this, what we call the Fourth Amendment's [1:06:27] not for sale, because if you can buy stuff that would otherwise require a warrant, [1:06:33] shouldn't be able to do that. So we want, we got to do some work on that issue. Then there's [1:06:37] the fundamental question we're asking for, for FISA 702, go get a warrant before you, you get the [1:06:42] ability to search people's. And then there's this compilation of data. And so I'm just interested, [1:06:46] any thoughts you have on, I mean, should we, we're trying to strategize the ranking member and I and [1:06:53] in the committee, how much do we try to put in 702? Do we do separate legislation? We're trying [1:06:58] to figure that out too. But I just, I'm just curious, any thoughts that you would have, [1:07:01] maybe we'll just go down the line. So let's start with the Democrat, let's go to and then we'll move [1:07:05] across. Yeah, I think you really can't address section 702 in isolation, because section 702 is part [1:07:12] of a vast ecosystem of often overlapping surveillance authorities. And if you cut off one [1:07:17] avenue of surveillance, the government might be able to turn to another or to exploit gaps in this [1:07:23] network of laws to conduct surveillance without any statutory authorization. [1:07:27] You think we should try it all together? Well, it's not that, I mean, frankly, [1:07:30] there's a lot you could address. And we're not really talking about everything here. I think the [1:07:34] four reforms that have been specified here today are certainly a good place to start, right? And that [1:07:39] is a warrant for, or a Title I order for backdoor searches. That's closing the data broker loophole, [1:07:45] fixing the electronic communications service provider definition, and shoring up the role of [1:07:52] amici in the FISA court. Thank you. I agree with Ms. Goritian that at least for the purposes of FISA, [1:07:58] that we want to focus on those four key reforms, because I think that those are the most promising [1:08:02] things that we can get addressed. And then for the other kinds of things that you're highlighting, [1:08:05] there are other vehicles that we can go and explore in terms of pushing forward. And I would not limit [1:08:12] you yourselves to FISA reforms written narrowly. As you all are much more aware than we are, [1:08:18] there are only limited windows when legislation can actually get passed by both chambers and signed [1:08:24] by the president. And those don't come along all that often. And I think it's important to take [1:08:29] advantage of them when they do. Thank you. I would just lastly say, why aren't they capable of [1:08:36] self-governing in this area? And we have to remember, post 9-11, we shifted the FBI and the [1:08:44] Department of Justice's overarching mandate to intelligence gathering for national security [1:08:48] purposes. So once you do that, their mentality is not to self-govern $12 billion we give to the FBI. [1:08:56] That's their budget. Over half of it is used on the surveillance stuff versus I mean, you go talk to [1:09:01] average American, they would say like, what? I thought the FBI was supposed to be going after traditional bad guys, [1:09:05] not not spying on on Americans. So you're exactly right. That is that is a problem. One last thing, [1:09:10] and I know I'm a little over time, I'll give it a little more time to the next next Democrat witness. [1:09:14] Someone said, let it expire. I forget which of you said that in your opening, Mr. Tolman, [1:09:18] the guy who helped put it together. The give me your thoughts on that. Well, you know, without wisdom, [1:09:29] and in my youth, I bought everything that was, you know, argued by the Department of Justice as to why they [1:09:35] needed it. Then you see their in their incapability of actually governing themselves with such power. [1:09:42] It would be like 215. We let that expire. And here we are still stopping national security threats. [1:09:50] Yeah, we didn't think that was possible when 215 expired. Yep. Yep. Okay. All right. The gentleman [1:09:57] from George's recognition. Thank you, Mr. Chairman, I don't view this committee meeting as the most serious [1:10:06] forum, because if it was, we would have someone from the intelligence community sitting on this panel to give [1:10:13] that viewpoint. Now, it's clear that this committee also is not interested in protecting the security, [1:10:23] the personal private security and the data of American citizens. And that's because it was complicit [1:10:33] that when this president set up DOGE, the Department of Government Efficiency, and put it in the hands of Elon [1:10:42] Musk and then unleashed Elon Musk to collect the private data of citizens through capturing the data of the Social [1:10:56] Security Administration, the Treasury Department, the Office of Personnel Management, Health and Human [1:11:03] Services, the VA, the Consumer Financial Protection Bureau, the Department of Commerce, the Department of Education, [1:11:12] the Department of Energy, the Department of Labor, the Department of Transportation, and others, [1:11:20] collecting this data. And the goal was to create a single centralized government database. And this effort was [1:11:31] unprecedented and unauthorized by Congress. And while it was happening, this committee, as it does today, [1:11:39] stood silent and complicit and let it happen, and is not concerned about it. I'm concerned about that data. [1:11:46] I'm wondering, Ms. Gotin, if you are, as it relates to Section 702? [1:11:53] I'm very concerned about what you're talking about. And in fact, I think I was speaking about it earlier when we were [1:11:58] talking about sort of removing the quote unquote silos. I think that the the access to data, private [1:12:06] sensitive data of Americans that is collected by the government on occasion for legitimate reasons, [1:12:11] and then maybe sometimes for less legitimate reasons when the government is simply buying up massive [1:12:15] databases, making that data widely available to anyone in government is a major privacy and civil liberties issue. [1:12:22] And this community, this committee has not been interested in that. Let me ask a question. [1:12:26] The Fourth Amendment, which requires probable cause to conduct a search, also has exceptions to it, [1:12:36] such as stop and frisk, such as evidence in plain view, such as a search incident to a lawful arrest, [1:12:47] such as exigent circumstances. Am I right? That's for people on the street, though, regular people, [1:12:56] but people in the suites. Before I say that, I'll note that on February 20th of this year, Trump issued an [1:13:04] executive order forbidding the federal government, the DOJ, the SEC, and others from applying or [1:13:15] investigating the Foreign Corrupt Practices Act. And you all know that that's true. They're not enforcing [1:13:23] that. And at this point, international crime perpetrated by American citizens, Trump in the lead, [1:13:31] with the acceptance of a $400 million jet. He just the other day accepted a peace prize from [1:13:40] Pfeiffer. And then the next day, they announced that an indictment of Pfeiffer is withdrawn, [1:13:48] withdrawn, is being dismissed. Corruption, pay to play, is what's happening under this administration. [1:13:58] Let me ask this question. Why shouldn't there be an exception to the warrant requirement in a situation [1:14:05] where an FBI agent has a reasonable suspicion that a U.S. person should be queried? Because that FBI agent has [1:14:23] evidence that that U.S. person is engaged in an international conspiracy to commit a mass murder of [1:14:33] Americans. And that FBI agent wants to query the 702 database. Why shouldn't there be an exception to the [1:14:45] warrant requirement that allows that FBI agent to do that? And by the way, I should say that the FBI [1:14:53] under Kash Patel and the DOJ under Pam Bondi, I don't have any confidence that they would apply the law [1:15:04] justly, that they would act in a legal fashion. I'm afraid of what they will do. It implicates how [1:15:12] I'm going to vote this time when it comes to this reauthorization of FISA. If someone could answer [1:15:21] that question, why shouldn't there be an exception to the warrant requirement? Well, certainly if there's an [1:15:28] immediate threat and a risk of life or safety, there would be an exception. That's for exigent [1:15:32] circumstances. If not, if there's time for the FBI to engage, use its usual investigative techniques, [1:15:39] the ones that are less intrusive, that don't, uh, inference on a reasonable expectation of privacy [1:15:43] under the Fourth Amendment, they would have time. You said they have had evidence. Maybe they have [1:15:47] enough evidence already to get a warrant. If not, they have other investigative techniques [1:15:51] at their disposal that are less intrusive. Well, they're sure going to have a whole bunch [1:15:55] more, uh, material to work with also after this Doge, uh, uh, situation has unfolded. I'll yield back. [1:16:03] The gentleman yields back. I would just point out that we had those exceptions in the language. [1:16:07] In fact, I would think many of us thought we almost had too broad of an exception language in there for, [1:16:13] for imminent threat, uh, for a cyber security situation if the person gave permission. So we [1:16:18] had that in the language. It was as we were being as generous as you could possibly be. I thought so. [1:16:25] Well, I tell you, I'm going to be looking at, at it through a different set of eyes now that this [1:16:30] Trump administration is in, uh, is in place. As long as you're, as long as you're a yes vote, [1:16:35] we don't care how you get there. Let's, let's not stand up here and act like Democrats are the need. [1:16:42] I've not done that. Joe Biden is the need. Carter Page and all of that. Let's not stand up here and act [1:16:47] like that's the reason why we need to reform. I have not done that. I would just remind Gemma, [1:16:50] I have not done that. And you can- And that's all that we have up here [1:16:53] among these witnesses. I think you're, you're the one who's been- [1:16:54] Among the three Republican witnesses are Carter Page- [1:16:56] I think you're, you're the one who's been going partisan, not me. [1:16:56] ...the time of the gentleman has expired, and we will recognize the gentleman from California [1:17:01] for five minutes. Well, thank you, Mr. Chairman. First of all, I'm not sure the data provided by an [1:17:06] individual to the government in, say, an application or a tax return shouldn't be reviewed by the government. [1:17:14] That's very different than the government searching for and seizing [1:17:17] data that's held by an individual. And I think that's the distinction my friend from Georgia [1:17:22] misses. Other than those- I'm not missing anything, sir. [1:17:25] Other than those remarks, I am very heartened by the fact that there is a broad bipartisan concern [1:17:33] on this issue reflected by all of the panelists and almost all of the members. As you know, the history [1:17:40] of this goes back to 1761, the trial of James Otis, uh, uh, challenging the, the rich of assistance, [1:17:47] the general warrants of the crown. Um, uh, uh, there was a 25-year-old attorney in the audience [1:17:55] in that, uh, trial who, uh, uh, was named John Adams. Uh, many years later, he reflected, uh, uh, on the [1:18:03] trial and said this. He said, every man of a crowded audience appeared to me to go away as I did, [1:18:09] ready to take arms against writs of assistance. Then and there, [1:18:12] the child independence was born. In Adams' view, that was the birth of the American Revolution, [1:18:19] was the abuse of searches by the crown. And of course, it was also the, the birth of, of the [1:18:25] Fourth Amendment. Um, you know, uh, uh, you know, FISA is, is abused under Democratic and Republican [1:18:32] administrations because it's human nature to acquire power and once acquired to use it. Uh, that's why we [1:18:39] divide the powers of government. And that's the reason we have a Fourth Amendment that divides [1:18:44] the power of searches between the executive and the judicial branches. And the, the Fourth Amendment [1:18:51] to me is very clear. If you want to look through my stuff, you've got to convince a judge that there's [1:18:55] evidence I've committed a crime and list the stuff you want to search for. But we're told that doesn't [1:19:00] include metadata, like phone records. It seems to me that metadata is a record of my electronic [1:19:06] activities, isn't it, Mr. Scherer? It certainly is. So why would that not be equally protected under [1:19:14] the Fourth Amendment? Well, what am I missing? Well, uh, I, I think it is protected under, under the [1:19:21] Fourth Amendment. I think the reason for excluding, um, metadata searches in the, in the last version [1:19:27] of the reform bill was just that searching mere made metadata is less intrusive, less dangerous [1:19:34] than searching the communications themselves. Uh, but I, but I think they both are protected [1:19:39] by the Fourth Amendment. But there are records of my communications, even if it's not a verbatim [1:19:44] transcript of them. And then is that not used to get a warrant to review a, uh, a transcript? [1:19:50] Yes, it could be used. So basically a general warrant could be used, uh, what is an effective general [1:19:56] warrant could be used in order to get a specific warrant, correct? You could view it that way. And so there's [1:20:02] no protection left if we're going to go down that road, it seems to me. You know, one, one ultimately [1:20:09] has to lead to the other. Yeah, I, I guess I would still say that the communication itself is more [1:20:15] sensitive and more, you know, should, should be subject to higher protection. Um, but you're right, [1:20:21] there is a bit of a slippery, slippery slope there. And as, as the chairman said, the last version was [1:20:27] quite generous. You, you, you, uh, dealt with the FISA court quite a bit. And, you know, I've been [1:20:33] concerned, uh, about the secret and centralized nature of that special court. Um, you know, [1:20:40] I remember looking at statistics from like 10 years ago and there were like 35, 34,000 warrants [1:20:45] that had been requested by the government at that point. Only 11 had been rejected by the FISA court. [1:20:51] Right. Uh, and of course the approval of warrants of individuals like Carter Page, uh, were, were backed [1:20:56] by false statements. Not only were those claims not seriously questioned to begin with, as they should have [1:21:01] been, but when it came to light that the FBI had lied in its applications, I'm aware of very few [1:21:08] disciplinary actions taken by the, the FISA court. Uh, there was one prosecution that, uh, uh, ended with [1:21:14] a slap on the wrist. Uh, what are we to make of this? Well, I think you've, you've just made the case [1:21:20] once again for, for adopting a robust amicus process in the FISC. Obviously the individuals who were subject to, [1:21:27] uh, who were being investigated can't be told that they're being investigated. And, and, and so there's [1:21:34] a need to have an independent, uh, privacy expert, somebody with a security clearance who can, who [1:21:40] can be present in especially sensitive FISA investigations. But before the FISC, we, we, we disperse [1:21:45] that responsibility across the entire court system, did we not? Um, in order to get a, a, a warrant, [1:21:53] you had to go to a district court judge. That, that, that's typically true, uh, in, in the, [1:22:01] in the FISA title one context. So of course you go to the, you go to the FISA court. Right. But my, [1:22:05] my question is, why don't we go back to the dispersed system where you at least have some [1:22:10] decentralization of this, this awesome power? Well, there's an argument for that. I think what would, [1:22:16] what would be more important is to be sure that, uh, that in those decentralized proceedings, [1:22:21] if they're, if, if they don't actually give notice to the person who's the subject of the investigation, [1:22:26] that, that the amicus process should, uh, should be included there as well. Uh, it may be more [1:22:32] efficient to centralize it in FISC though. Uh, gentlelady from, uh, uh, Washington is recognized. [1:22:40] Thank you, Mr. Chairman. Thank you for holding this hearing. And thank you, um, to the group of us on [1:22:45] both sides of the aisle that have been very consistent on this and have taken on our own, uh, party in power. [1:22:51] Um, it does seem like, uh, it gets very difficult. People change their views based on who's in power. [1:22:58] And so I appreciate the work we've done on a bipartisan basis to really protect the privacy [1:23:04] of Americans and make sure that we're upholding our constitutional obligations. Um, I want to go [1:23:09] back to this question of queries, Ms. Goytin, uh, because you talked about it quite a bit in your opening [1:23:14] statement. And I think that this, uh, these preliminary numbers are not really, we just have [1:23:22] no idea what they really, um, show. And so I want to talk a little bit more about why we need to [1:23:29] approach that current number that's been given to us with caution and also ask you, you know, [1:23:34] because this is a clear example of how the FBI just changed the rules, um, and they're not complying. [1:23:41] Um, how do we make sure that whatever we write into law, it appears now we have to define query. [1:23:47] Um, but what ideas do you have for when we approach this again, that we are actually ensuring compliance with our intent? [1:23:55] Well, Congress did define query and, and I'm, I have kind of racked my brain to try to figure out [1:24:01] why somebody at the FBI decided that these were not queries. This was a system that allowed FBI agents to retrieve communications [1:24:09] associated with a particular case file or facility, which is basically the communications of a particular [1:24:15] target, but it also allowed them to, uh, to search for particular participants and pull up those [1:24:23] participants' communications, and those could include U.S. persons. So, uh, it was basically a way to [1:24:29] run queries on a subset of Section 702 data, and, and the query could be for a U.S. person's communications [1:24:37] within that pool. Um, you know, this, it's hard for me to understand why this was, why they didn't [1:24:44] consider this to be a query. One possibility is that there was a drop-down menu involved, and the [1:24:49] definition is, uh, includes the use of one or more terms to retrieve the unminimized content. So maybe if [1:24:55] you're clicking on a U.S. person's account rather than typing it in, maybe that's not being counted as a [1:25:01] query. I don't know this for sure. I'm just trying to understand. Um, one of the things that also puzzles me [1:25:07] is that apparently the National Security Division just happened to find out about this in August of [1:25:13] 2024, and the practice wasn't suspended until early 2025. Why did it take that long to look at the [1:25:23] definition, look at what was happening? Well, that's right, and it seems to me, Mr. Chairman, [1:25:26] that we might be able to do, you know, some sort of our own inquiry into this right away, and at least [1:25:32] get the correct numbers and make sure that we are operating with full data. Um, I want to ask you, [1:25:38] Ms. Goitin, also about, um, uh, the, the question of, uh, 702 does not allow for the targeting of U.S. [1:25:47] persons, and yet millions of Americans have been targeted for surveillance under this statute. [1:25:53] Why is it important to protect everyone in the United States from warrantless surveillance? Does it [1:25:59] include persons, American citizens, and all persons in the United States? Yeah. I mean, [1:26:03] first of all, as a constitutional matter, the Fourth Amendment protects everybody, uh, in this country, [1:26:09] and so if you believe that a warrant requirement, uh, is cons- is a constitutional requirement, [1:26:15] as a district court, uh, held a year ago, uh, as the- as a unanimous panel, uh, of the Second Circuit, [1:26:22] uh, seemed to indicate in their earlier decision, um, then it- then it applies to everyone in this [1:26:27] country, but there are practical reasons as well. Um, just as collection of the communications of [1:26:33] non-U.S. persons incidentally pulls in, uh, U.S. person communications, queries, any query, [1:26:39] can incidentally, uh, retrieve the communications of Americans. Um, and that's because, you know, [1:26:46] even if you're querying a non-U.S. person inside this country and pulling up the communication they [1:26:50] have with a non-U.S. person target, um, those communications can have other people involved in them. [1:26:56] It can be a group email or- or a group text, um, that includes any number of the U.S. persons. [1:27:02] If the non-U.S. person being queried is in this country, that vastly increases the chances that [1:27:09] they are going to be in frequent communication with Americans in this country, and so these are [1:27:14] queries that pose particular risks to Americans. Uh, we have been hit with lots of opposition arguments, [1:27:21] and so I want to give you one and ask you to refute it. Uh, you know, some people view the apparent [1:27:26] decrease in backdoor searches with some alarm and, uh, ask whether the FBI is not making queries that [1:27:32] it should be making. Um, how would enacting a warrant requirement both protect Fourth Amendment rights [1:27:38] while providing a clear process for the FBI to do its work? This was just something raised all the time [1:27:43] to us. Yeah, well, if it is in fact the case that FBI agents are not performing legitimate queries [1:27:48] because they are, uh, you know, there's too many layers of oversight or they're worried that they [1:27:52] will be penalized if somebody later decides that they shouldn't have made the query. Uh, there's [1:27:57] really a simple answer to that. I mean, needless to say, the answer is not to get rid of the oversight [1:28:02] and go back to all of the queries of congresspersons and protesters and all of that. Um, the answer is [1:28:09] to have the government get a warrant to put the burden of gatekeeping these searches where it belongs, [1:28:16] which is with the courts. That would reduce the need for all of these layers of internal oversight [1:28:23] and whatever sort of administrative paperwork and burden is associated with those layers. Um, [1:28:27] and it would also remove any motive that might exist for, uh, FBI agents to be excessively cautious. [1:28:34] Uh, FBI agents would be free, uh, to do their job, uh, to vigorously pursue investigations within the law [1:28:41] and their professional obligations. And then the courts could do their job. The job that they do in pretty [1:28:46] much every context except 702, which is determined whether there is a lawful basis for this. Thank [1:28:51] you, Mr. Chairman. I hope we can work together on, on, uh, actually getting compliance with the real [1:28:56] numbers around the queries. Thank you. Yield Beck. The tried and true method going to a separate and [1:29:02] equal branch of government, getting a probable cause warrant with imminent threat exceptions [1:29:07] is the answer. It doesn't take a genius to figure this stuff out. The gentleman from Wisconsin [1:29:11] is recognized. First of all, Merry Christmas to all of you. Remember St. Nicholas is watching and [1:29:17] we're hoping that, um, he does not need a warrant, but we're hoping we can get the federal government [1:29:22] to make sure they get a warrant. Um, Mr. Chernowski, last time you were here, we discussed the concern [1:29:28] with RISA and the definitional expansion of electronic communication service provider. Is that concern [1:29:34] still there? And if it is, how are we going to fix it? Yeah, uh, that concern is still very much there, [1:29:40] unfortunately. Um, you know, as, as Ms. Goitin, uh, pointed out, it radically and drastically expanded [1:29:46] the definition of what would be captured underneath an electronic service, uh, communication service [1:29:50] provider. Um, and, and because that, that, that threat is still there, I think that there's an [1:29:55] opportunity with this upcoming reauthorization discussion to go and reign that back in. Now, [1:29:59] to their credit, uh, in the Senate, uh, Senator Mark Warner did try to go and get some fixes to that [1:30:05] definition, uh, but it was stripped out of the intelligence, uh, authorization act process. So that, [1:30:11] that problem is still there. And I hope that with this upcoming debate that we can get the fix that's so [1:30:15] desperately needed. Is there any one in particular that you would point to that you'd say we got to [1:30:20] have this in terms of a fix? Um, yeah, again, I think the, the, the most fundamental one is, [1:30:27] is getting the, the, getting a warrant, closing that backdoor search loophole is, is really, [1:30:31] really integral. Um, but this electronic communication service provider, I think, [1:30:34] kind of jumps right up there with it because again, it is just way too expansive. It goes and conscripts [1:30:40] a whole host of businesses into the surveillance apparatus that had no intention of ever being in there, [1:30:45] so much so that it was a rare instance where you even saw technology go, uh, industries go and [1:30:50] speak out against this particular definition of language. ITI had submitted a letter to Congress [1:30:56] going and asking to go and fix that definitional, uh, issue. So yes, very important. Mr. Tolman, [1:31:03] how can we limit this data broker loophole without hurting intelligence? You know, the, um, the fact that [1:31:12] it's so secret and it's contained exclusively within the, the, those that present to the FISC, [1:31:20] those powers and, and we're really talking about internal powers of the FBI, um, without being able [1:31:27] to shed light on what they're doing and who they're contracting with, it's very difficult to stop its use [1:31:33] and it will continue to be a challenge unless we are putting, for example, third parties capable of reviewing [1:31:40] what, what they're searching and who they're contracting with. If we prevent and put guard, [1:31:45] guardrails on the scope of that contracting, we might be able to make an impact on its abuse. [1:31:51] Uh, Mr. Chair, um, we've seen some political judges across the country really abusing their authority. [1:32:01] Are there guardrails against this with FISA? Well, the, the, the warrant requirement itself, [1:32:11] I think is going to, is going to help bring some accountability, uh, to the agencies. There's [1:32:17] all there, there's always a chance that a judge will grant a warrant the, uh, that he or she shouldn't [1:32:23] grant. And there's always a chance that a judge will deny a warrant that he or she, uh, shouldn't [1:32:28] grant, but at least in the judiciary, there's, there's an opportunity for appeal. You know, [1:32:33] my concern is, I mean, you see what Judge Boasberg has done and he's served on the FISC. I mean, [1:32:38] it's really of concern that, um, he's going to abuse that authority. Well, and, and no solution is [1:32:47] perfect. Um, but the, but the, uh, the mechanism that the framers of the constitution put in place, [1:32:53] uh, to deal with these kinds of issues is I think, uh, as, as perfect and as, and as good a system as [1:33:00] we've seen. There, there, there will be lapses, there will be mistakes, but, uh, but there will be [1:33:05] many fewer than we currently see, I think. I think it was talked about earlier, but [1:33:09] amicus briefs are allowed, correct, in the FISC? I, I suppose they are technically allowed, [1:33:18] but since the FISC operates in secret, nobody knows what, what the FISC is considering. So [1:33:24] nobody really knows, unless they're told, uh, nobody knows whether there's an opportunity to [1:33:29] submit an amicus brief. So part of the amicus system is that the FISC itself would appoint an [1:33:34] amicus and tell them we have this proceeding dealing with this particular target. Uh, can you give us your [1:33:40] thoughts on it? Um, so I'm going to take it that there's some limited ability. Should it be expanded? [1:33:48] The amicus program, I believe, should be expanded. There are a lot of politically sensitive, um, [1:33:54] investigations that, that currently, uh, are, are not subject to the amicus, uh, provisions at all. [1:34:01] And there, uh, and there are several politically sensitive kinds of investigations where the FISC [1:34:08] should be effectively required to appoint an amicus to give it independent advice when it's [1:34:13] considering a title one warrant. And once again, uh, with the amicus, um, uh, if that's allowed, [1:34:20] what will that, what will that engender that will be helpful in this process in your mind? [1:34:26] Well, two things. Uh, first of all, the amicus may, may actually, may actually find real problems [1:34:32] with the government's case and be able to prevent an investigation or prevent surveillance that should [1:34:37] not have gone for, gone forward. Uh, but at a minimum, the presence of an amicus is going to [1:34:43] have a big deterrent effect on the FBI and the DOJ. And the Carter Page situation, for example, [1:34:49] I'm convinced that if there had been an amicus in the room and in the proceeding, uh, that [1:34:55] Clinesmith would never have lied. Um, and, and that the other misdeeds that occurred in connection with [1:35:01] Carter Page would likely not have occurred because they would have been afraid that the amicus would [1:35:05] recognize them and point them out to the court. May I respond on that question, Mr. Chairman? [1:35:11] One other thing that it would prevent is what happens currently, which is where there's a [1:35:16] deficiency in a warrant, title one warrant, the Fisk judge will actually go back to DOJ [1:35:23] and ask them to fix or provide additional information on a deficient warrant. An amicus system [1:35:30] would prevent that. Thank you for letting me exceed my time, Mr. Chairman. You bet. [1:35:34] The general lady from Pennsylvania is recognized. Thank you. I want to thank the chairman for [1:35:39] calling this hearing. Uh, FISA reform is a key area of bipartisan agreement in this committee, [1:35:44] one where our shared interests in limited government and protecting civil rights and liberties, uh, [1:35:49] overlap substantially. And the abuse of FISA by the FBI and the intelligence community is pretty well [1:35:56] documented. Our, our witnesses have detailed, uh, some of those abuses and, and made some really good [1:36:02] suggestions for reform to address that, that abuse. Um, one cause of the abuse of surveillance authority [1:36:10] happens because there are few enforceable limits to, uh, collection of data and the use of that data. [1:36:17] As long as we have to put, um, as long as we have to rely on the good faith of the FBI or the intelligence [1:36:25] committee, community, regardless of who's in charge, uh, surveillance can be ripe for abuse. [1:36:30] And when we don't put clear enforceable limits in law, like a warrant requirement, [1:36:35] it means that Americans most essential rights and liberties are at risk, including the right to speak [1:36:39] their minds, to be free from unreasonable search and seizure, and even their essential privacy rights. [1:36:45] And the importance of protecting Americans, uh, essential rights and privacies has never been more [1:36:51] clear than in the past year when we've seen the current administration with re with respect to its allies [1:36:56] at Doge and the Department of Justice mobilize the government to invade and collect Americans' private [1:37:03] data, whether social security, tax, student loans, health care, voter registration, or snap data. [1:37:10] And when you add that to the growing purchase of online and social media data by the government, [1:37:17] um, we see that data being used in illegal law enforcement activities and even prosecutions of [1:37:23] this administration's political enemies. So, um, one example is, uh, where we've seen the White House [1:37:32] weaponize government surveillance and law enforcement to target political opposition and stifle political [1:37:38] speech with the National Security Presidential Memorandum 7 or NSPM 7, which directs the intelligence community [1:37:46] and law enforcement to target organizations and individuals on the basis of their political beliefs [1:37:51] or political speech, actions that are unambiguously protected by the First Amendment. And on the basis of [1:37:59] that memo, we've seen Attorney General Bondi direct the FBI to compile a list of groups allegedly engaged in [1:38:06] domestic terrorism using examples of protected political speech as key criteria for inclusion on the list. [1:38:14] So if you strip away the pretext, then the purpose of these actions becomes clear. [1:38:19] This administration is already using the federal government to target political opponents. [1:38:24] So given the known abuses of FISA by governments past and present and the willingness of this [1:38:31] administration to run roughshod over existing guardrails, um, it seems pretty clear that we've got to act [1:38:39] to limit those abuses, um, or else we're going to see FISA being used illegally to spy on Americans who [1:38:47] don't align with this administration's agenda. Um, Ms. Godian, in your testimony, you raise the very good [1:38:55] point, I think, that Americans should expect and be able to trust that Congress will protect their [1:39:01] privacy and their freedoms. When Congress last considered FISA reauthorization last year, [1:39:07] we were told repeatedly by the intelligence community that our Fourth Amendment concerns were best [1:39:12] addressed by better stewardship of, uh, FISA authorities by the government. Um, do you think that that has [1:39:20] played out in practice, um, given the known abuse of surveillance authorities that we've seen [1:39:26] and the failure to collect and report accurate data about the use of those authorities? [1:39:32] Yeah, I think one important point to bring up is that the failure to count these queries as queries [1:39:39] and to follow the procedures required for U.S. person queries, like getting attorney approval, [1:39:43] uh, or providing a written justification, those are themselves violations of the law that Congress [1:39:49] passed last year. So while we don't know, uh, whether or there were violations of the, uh, substantive [1:39:57] standard for queries or how many violations there were, uh, we know at least that there was a fairly [1:40:04] systemic violation of several requirements of the law that have happened so far. Um, in terms of whether [1:40:11] the particular queries met the standards, I'll point out that the government credits, uh, some of these [1:40:17] procedural requirements, attorney approval, uh, written justification, audits, uh, for improved [1:40:23] compliance. And those were not happening with these particular queries. So I think it would be [1:40:27] reasonable to expect that you would see a higher rate of non-compliance with these queries. I don't [1:40:31] know if we'll ever know that, uh, for sure. Uh, so, no, I, I mean, I don't think the record has, has, has [1:40:38] borne out this notion that, you know, internal oversight, uh, was the best way to go about protecting the [1:40:43] Fourth Amendment. And you can tell that by looking at the Fourth Amendment, which does not talk about [1:40:49] internal oversight. It does not say if the government has a reasonable, reasonable basis to believe [1:40:54] that its search will yield important information, um, it can either go to a court and get a warrant [1:40:59] or just do the search, right? That's not what the Fourth Amendment says. So that's not the, uh, [1:41:05] that's not the way to protect Fourth Amendment rights. Sure. I mean, the Constitution famously said [1:41:09] you have to get approval from a different branch of government in order to avoid the kind of self-dealing [1:41:15] or, you know, pay no attention to that query behind the curtain, um, kind of, uh, kind of an approach [1:41:22] to this. Um, can you just address again, um, how the warrant requirement protects people from [1:41:28] potential targeting on the basis of their political beliefs? Quickly. I'm sorry. I did not realize my [1:41:34] time is ahead as quickly has expired. Okay. Well, well, well, I'm going to, uh, the gentlelady yields back and [1:41:41] we'll recognize the gentleman from Kentucky. Thank you, Mr. Chairman. Thanks for having the hearing on this. [1:41:46] Um, you know, I've been working on this for over a decade with my colleague, Mrs. Zoe Lofgren, and [1:41:53] I was ecstatic a decade ago when we got an amendment passed to require a warrant, but somehow that got [1:41:59] stripped out and it's kind of like Lucy and the football and Charlie Brown. We get so close or we [1:42:04] think we've won and then it gets pulled away. Um, and I, I'll talk a little bit about the elephant in [1:42:10] the room. One of our colleagues here, you, who used to be for FISA reform is now the Speaker of the House [1:42:16] and cast the deciding vote, uh, against FISA reform last Congress. Uh, we don't want to [1:42:22] talk about that too much, but I'm going to bring it up because when he was asked, why did he change [1:42:27] his position? He said he learned some stuff in a skiff. Well, the skiff is like the magic room where [1:42:32] they go change your mind. The problem with his story is I spent three hours in the skiff with him. [1:42:37] And when we pressed the CIA director and the director of national intelligence and the head of the FBI, [1:42:42] all of them were in the skiff, give us one example where you couldn't have solved the crime or you [1:42:47] couldn't have prevented some mass casualty event because of a warrant requirement. They could not [1:42:53] give us a single example. The only person in that room who had a decent argument about anything was [1:43:00] a FISA judge who said, ah, you're going to need more skiffs somewhere. If we're going to review these, [1:43:06] if you're, we're going to have to review warrants. And so it became a cost issue, but I thought [1:43:11] that was kind of lame. You know, it's going to cost some money to follow the constitution. [1:43:15] Okay. What's it going to cost? One of the things that Zoe Lofkin reminded me of is there's all these [1:43:23] sort of loopholes where we're afraid if we do get our FISA reform, the intelligence agencies are going [1:43:30] to use these loopholes to spy on Americans. And the one I want to ask you all about today, well, [1:43:35] there's actually three of them, but one of them is Executive Order 12333. And I see Ms. Goytin [1:43:43] shaking her head. So I'll ask her what, should we be concerned about 12333 and what could we do about [1:43:48] that executive order? Absolutely. Yeah. So let me explain a little bit. As a general matter, [1:43:56] FISA applies when the government is collecting information inside the United States or from U.S. [1:44:00] companies. If the government is collecting information overseas, it usually is relying on [1:44:06] a claim of inherent authority as governed by Executive Order 12333 and various other executive [1:44:13] policies. And this is a critical distinction because there are almost no legislative protections or [1:44:24] guardrails for Executive Order 12333, and there is no judicial oversight. Now, this distinction between [1:44:30] collecting here and collecting there might have made sense in 1978 because, you know, [1:44:35] collection inside the U.S. usually meant collecting on Americans and collecting overseas usually meant [1:44:40] collecting on foreigners overseas. As we all know, with the changes in technology, that has completely [1:44:46] changed. Communications, other sensitive information is routed and stored all over the world. And in fact, [1:44:54] the fact that foreigners' communications were being stored by U.S. service providers in this country and [1:44:59] therefore the government would have needed to get a warrant for those before 702 is one of the reasons [1:45:05] the government pushed to modernize FISA with 702. They just didn't address the other half of the problem, [1:45:11] which is that Americans' communications are routed and stored overseas in ways that can, [1:45:17] in some circumstances, remove them from the protections of FISA. For example, when the government [1:45:22] collects information in bulk overseas, it's inevitably pulling in Americans' communications. So Americans' [1:45:30] communications are acquired incidentally. They are acquired as part of bulk collection under EO 12333, [1:45:36] and the only safeguards in place are those that the Executive Branch has chosen to put in place. It will [1:45:42] not shock you that those rules and procedures are much more lax. This isn't the answer I wanted. I wanted you to [1:45:47] tell me we shouldn't be concerned about Executive Order 12333. Sorry, you called on the wrong witness. [1:45:54] Another loophole that we've identified in the Weaponization Committee was the Financial Privacy [1:46:00] Act of 1978, which is one of those bills that did the opposite of what it was supposed, what the name of [1:46:06] it was. It created a loophole that allows the government to get bank records without any warrants or [1:46:13] anything. Or is anybody familiar with this? Yes, I am. And I would say there's the concern, [1:46:20] overarching concern I have is you have 1978, you have 1981 on 12333. We didn't have the ability to [1:46:27] collect the data that we do today, nor the access to it. It was very different government that we were [1:46:33] talking about back then when those executive orders came out. So that may need updated as well, you think? [1:46:41] Absolutely, it does. Because we've we identified where they've been using it recently. And a lot of this stuff [1:46:46] actually comes through whistleblowers. This just in closing, I'm disappointed that our committee didn't [1:46:54] find the Arctic Frost, the spying on the senators. And it wasn't a we're responsible for oversight. We [1:47:00] couldn't even find them spying on us. It was a whistleblower. And so I think we need to tighten up our [1:47:08] oversight over these committees that well, we did we did find that they were spying on the Speaker to [1:47:13] House and members of this as well, at least one member we know. But this is and just one more [1:47:19] thing for close. I know we got some I would prefer to fix the law for everybody, not for members of [1:47:26] Congress. I totally agree. But one of our colleagues was very vocal about making sure it was fixed for [1:47:31] members of Congress. But the fix was to report the spying to the Speaker of the House and maybe a couple [1:47:38] chairmen of committees. Why not report it to the person that was spied on the member of Congress? [1:47:43] That's my concern. I yield back. That's why we that's why we did the non-disclosure order on [1:47:49] Indio Fairness Act that we pass out of this committee to help with that in that regard. The [1:47:53] gentleman from Colorado is recognized. Thank you, Mr. Chairman. I see my colleague, Mr. Massey. I don't [1:47:59] know if you wanted to finish that thought. Mr. Massey, I'm happy to yield a moment. He gave me an extra [1:48:02] minute. Okay. All right. Well, thank you, Chairman, for holding this hearing. And certainly thank you to all the [1:48:07] witnesses. I share the concerns of my colleagues on both sides of the aisle with respect to FISA abuses [1:48:13] in the past and the necessity for reforms. Mr. Scheer, I want to ask you a couple of questions. So [1:48:20] you've testified today about your representation of Mr. Carter Page, former Trump campaign advisor, [1:48:27] in his ongoing lawsuit against the United States based on the 2019 finding by the Department of [1:48:33] Justice that the FBI had used invalid warrants to monitor Mr. Dr. Page under Section 702 under. So [1:48:41] in 2020, five years ago, the special counsel, the Department of Justice, John Durham, secured a guilty [1:48:48] plea from an FBI attorney who doctored an email that was used in that warrant application. Is that a fair [1:48:53] characterization of the event so far? I think he actually went to trial. You're talking about Kevin [1:49:00] Clinesmith? Correct. Yeah. He went to trial. Got it. So and ultimately was convicted. He was convicted, [1:49:07] but didn't get any jail time. Correct. So my understanding is that to address at least in part [1:49:14] some of these 702 abuses, Attorney General Bill Barr in 2020 directed the creation of an Office of [1:49:22] Internal Auditing. You're familiar with that? Yes. All right. And that Office of Internal Auditing, [1:49:27] this is created by former president or not former President Trump's former Attorney General in the [1:49:32] first term was designed to scrutinize the 702 process to prevent these kinds of abuses from happening [1:49:40] in the future. I think it was designed to scrutinize Title One processes that the other provision of [1:49:49] Correct. Of FISA. Right. Correct. Yep. I assume that you agree that that's a worthy goal. [1:49:55] Certainly a worthy goal and one that would be advanced even further by adopting the amicus [1:50:02] mechanisms that we've discussed here and that passed the Senate with 77 votes a couple of years ago. [1:50:08] And I also assume you're aware that the Office of Internal Auditing no longer exists. [1:50:13] I wasn't aware of that. No. So the director of the FBI, Cash Patel, earlier this year, eliminated [1:50:20] the Office of Internal Auditing at the FBI. This was an office that the Republican Attorney General, [1:50:27] Bill Barr, created five years ago in response to the work done by Chairman Jordan and Republicans [1:50:36] and Democrats on this committee. Doesn't seem like that accomplishes a whole lot. I have yet to [1:50:44] understand the rationale as to why the FBI director, who, by the way, at least prior to his appointment as [1:50:49] FBI director had expressed all kinds of misgivings about 702 and FISA and the like, has now decided [1:50:55] to eliminate the Office of Internal Auditing at the FBI. I wonder why that is. I don't know if you care to [1:51:00] to perhaps make a educated guess. Well, I think I think that's all the more reason why Congress needs [1:51:07] to act. Congress and Congress is the representative. The people needs to be the entity that's protecting [1:51:14] the rights of Americans. Yeah, I don't disagree with you. Clearly, there's an impetus for Congress to do [1:51:18] something. And I think that that's the, you know, obviously the rationale for this particular hearing. [1:51:24] But it would be nice to perhaps hear from our chairman and my colleagues on the other side of [1:51:29] the aisle, who I know have direct relationships with the Attorney General of the United States and [1:51:34] the director of the FBI. It'd be nice to hear them defend the Office of Internal Auditing that that I [1:51:41] presume they supported a mere five years ago. Doesn't really quite make much sense to me why that would be [1:51:46] eliminated. I see I know I'm getting near the end of my time. As I said, I think that there is a [1:51:53] a bipartisan consensus in the Congress. It's emerging that this is an area ripe for reform. [1:51:57] Again, it's something I'm supportive of. And I look forward to working with my colleagues on both [1:52:02] sides of the aisle to try to make some progress in that regard. I will yield back balance my time. [1:52:09] Yields back the gentleman from Texas is recognized. I thank the chairman. I thank the witnesses. [1:52:18] Appreciate y'all being here. Let me just ask this question among the four of you. And I think I know [1:52:23] the answer. And I'll start with you, Mr. Tolman. I'll move across the panel. Is there any legitimate [1:52:29] reason why we should not have the warrant protection included in a reform to FISA? Mr. Tolman. [1:52:41] No. And in fact, the reasons stated are illegitimate. You take the argument that the FBI can do it [1:52:47] themselves. That's that I've never believed in the fox being able to analyze and control what the fox [1:52:53] does in the hen house. Sure. Absolutely. There's no reason not to not to include it. It should be [1:53:00] included. I think that it is a must have thing if we're going to go and reauthorize FISA. Ms. Coting. [1:53:05] No reason not to include it. Okay. And with all due respect to I think we had one of our colleagues [1:53:10] on the other side of the aisle who was expressing some concerns about not having somebody from the intel [1:53:15] community here. Like the intel community is the one are the ones running the show, including by the [1:53:21] way, with all due respect, a lot of our colleagues on the intel committee here who are a part of the [1:53:26] show and judiciary exists to focus on the constitution and the rights of citizens to not have this occur. [1:53:36] And that's why the chairman is absolutely correct to have this witness panel. And I would just note that [1:53:41] all four witnesses, including the Democrat witness, just said there is no legitimate basis. [1:53:46] for us not to include a warrant protection requirement in FISA reform. And I want that [1:53:53] to ring through the halls of Congress between now and April so that when we are forced with the vote [1:54:00] that is inevitably going to occur on this issue, that we not have what happened almost two years ago, [1:54:06] where we left the American people without the protection the constitution affords them [1:54:12] from a tool that is being used on a bipartisan basis to target the American people and collect [1:54:19] their data, which is offensive and it is wrong. And there cannot be this cloak of secrecy surrounding [1:54:25] intel. And to that point, I wonder if Ms. Coteen, you might be able to help me out here a little bit. I [1:54:31] offered a couple of amendments to FISA last time. And one of which was to demand that we get all of the [1:54:40] reports of the queries. And in that amendment, we and I think we we settled on quarterly, [1:54:46] I wanted it to be monthly or whatever, you know, regular reporting. And we gave them a year at their, [1:54:51] you know, wailing and gnashing of teeth that they wouldn't be able to get this done and figured out within [1:54:56] a year. Okay, so that year expired last, I'll call it, you know, spring. Well, do you know, [1:55:03] and are you aware, have we gotten any kind of data and reporting information out of the System 1 [1:55:09] efforts so that we can look and look at the data specifically with respect to these queries? [1:55:15] Can you illuminate us? I actually don't know the answer to that question in terms of what you have [1:55:21] received from the FBI. It looks like Congresswoman Ross might. Okay, yeah, I'm not sure if you're not, [1:55:31] if you're not getting the data that you're supposed to be getting under the law, needless to say, [1:55:35] that's a very serious problem. Well, what we're advised of is that we are is that the System 1 [1:55:41] is not even really recording these queries and set up in a way. Yeah, I didn't. Sorry, [1:55:45] the System 1 exactly. I mean, that that data. So what happened was that in I think it was March of 2025, [1:55:52] the National Security Division told the FISA court that it was currently cooperating or [1:55:58] coordinating with the FBI to determine whether any records of this functionality had been generated. [1:56:04] So I think absolutely this committee should be following up on that to determine whether any [1:56:09] such records were located. If not, whether they can be forensically reconstructed. That is information [1:56:15] you should have. And then I have a limited amount of time. I just want to stipulate for this committee [1:56:20] that we need to see that data. We need to see the results of the queries. We need to be able to [1:56:27] identify that information. And I want to see more changes in FISA to force more information and compel [1:56:32] our ability to see it. And I would note also that we included provisions in there for the [1:56:37] chair and ranking member of judiciary as well as leadership to be able to go into FISC proceedings. [1:56:43] And that has been allowed pursuant to the law comma. However, the FBI has then stipulated at times that [1:56:52] individuals would have to be removed and that they would need to leave for certain sensitive conversations, [1:56:59] which, by the way, the statute never contemplated. And what we passed did not contemplate that members of [1:57:05] Congress who have full clearance that in the statute, they are supposed to be able to go in there in these FISC [1:57:12] proceedings and monitor them. The FBI has no basis, whether that was the FBI under the Biden [1:57:18] administration or the FBI under the Trump administration, to then say it's too sensitive. [1:57:25] Members of Congress need to leave these proceedings. So whatever we do in both carrying out our oversight [1:57:31] function of the executive branch or whatever we do in FISA reauthorization, unless we let it expire, [1:57:38] for Mr. Tolman's, I think, wise advice, that we need to make sure that if we're putting members [1:57:45] of Congress in there to oversee this stuff, the FBI doesn't walk in and say, sorry, you've seen enough, [1:57:50] you can't see the rest of this. That is just facially absurd. I yield back to the chairman. [1:57:55] The gentleman yields back. The general lady from North Carolina is recognized. [1:57:58] Thank you, Mr. Chairman and the ranking member for holding this really important [1:58:04] hearing. I'm so glad that we continue to have bipartisan support, particularly for the warrant [1:58:12] requirement. And thank you very much for for the amicus requirement, which is something that I've [1:58:19] worked on in the past. But as we're weighing this reauthorization of FISA and until we can get some of [1:58:27] these safeguards that we want, it's very important that we use the previously created internal safety [1:58:36] checks and guardrails. And I am concerned that this administration has weakened them. So maybe this [1:58:45] responds to Mr. Roy's initial point, but there was a requirement that the Office of Inspector General [1:58:51] review the querying practices and they did file a report this past October, which found that the FBI [1:59:01] has made progress in reducing the number of non-compliant hearings, though not enough, we agree. [1:59:08] But the inspector general was not able to conclude based on their limited time that the querying [1:59:14] compliance are entire, the problems are entirely in the past. So this really shows that we need [1:59:21] to continue to have this oversight with the tools that we have until we can get stronger protections [1:59:28] for the American public. So, Ms. Goyton, the Privacy and Civil Liberties Oversight Board serves as an [1:59:36] important oversight role, especially regarding FISA. The board has published numerous reports and [1:59:42] recommendations about the different surveillance programs and released a report in September of 2023 [1:59:50] about Section 702 that contained multiple recommendations to protect the rights of Americans. [1:59:56] But in January, almost immediately after he was sworn in as president, Trump fired the Democratic board [2:00:04] members. And the board now has one part-time member and lacks a quorum to begin new investigations or issue [2:00:13] reports signed by the board. Could you tell us why ensuring the independence of this board is so [2:00:21] important and why it's important for it to have a quarrel? [2:00:25] The Privacy and Civil Liberties Oversight Board is the only independent agency within the government [2:00:31] that is charged with ensuring the protection of Americans' civil liberties. It's a small board with [2:00:37] a fairly small staff and a huge and absolutely vital remit. If you don't have the Privacy and Civil [2:00:45] Liberties Oversight Board doing its job, then all of the oversight that's coming from the executive [2:00:51] branch will effectively be internal oversight that's sort of happening within these agencies. PCLOB, [2:00:56] as we call it, has been vital in bringing to light, first of all, how the Section 702 program worked. [2:01:03] If it weren't for the PCLOB's 2014 report, most of what we're saying today about how 702 works, [2:01:08] we wouldn't be able to say. But PCLOB managed to get that information declassified and put it out to [2:01:14] the American people. Because of the PCLOB's work, we found out in 2023 that the claim that warrantless [2:01:21] backdoor searches were important for national security, the claim we had heard from the government, [2:01:26] was not true. That the government had only been able to identify a handful of instances where these [2:01:31] U.S. person queries had been useful, and in pretty much every case, they could have either gotten a [2:01:35] warrant, consent, or invoke the exigent circumstances exception. It is because of the PCLOB that you had the [2:01:42] tools that you needed last year to enact RISA, and that you will have the tools that you need now [2:01:48] in reauthorizing Section 702 this year. Now, if people on the PCLOB can simply be removed at will, [2:01:56] that will chill. First of all, there's no quorum, right? So there's no PCLOB right now, essentially. [2:02:01] That's a problem. But unless Congress—it's not enough to just appoint people to PCLOB. The independence [2:02:08] of PCLOB must be protected, because if members know that they can be removed if the president [2:02:15] doesn't like the investigation that they are conducting or the results that they came up with, [2:02:21] then that is going to chill their oversight, and we need them to be a robust oversight body. [2:02:26] There was a provision in the PCLOB authorizing statute saying they could be removed at will. Congress [2:02:31] removed that. So it seems clear that they can't be removed at will, and in fact, there are lawsuits [2:02:38] right now challenging their removal. But Congress should make that explicit, and Congress should [2:02:43] give—should make very clear that members of PCLOB can only be removed for cause. [2:02:48] Well, it's my great hope that, at least in this area, we use our power and we have a check [2:02:57] on the administration. And with that, I yield back. [2:03:00] The general lady yields back. The gentleman from Virginia is recognized. [2:03:02] I thank the chairman. I thank the committee for all their work on this important issue. [2:03:05] The Constitution is under the jurisdiction of this committee, and the Fourth Amendment is pretty [2:03:10] clear. The right of the people to be secure in their persons, houses, papers, and effects against [2:03:14] unreasonable searches and seizures shall not be violated, and no warrants shall issue, but upon [2:03:19] probable cause, supported by oath or affirmation, and particularly describing the place to be searched [2:03:24] and the persons or things to be seized. No asterisk, no footnote that says, except for this case, [2:03:31] or in cases of national security or otherwise. Let me just ask Ms. Griffin, under 702, the government [2:03:44] is prohibited from engaging in reverse targeting. Can you describe what reverse targeting is and why [2:03:48] it's problematic? Reverse targeting is when the government claims to be interested in the foreigner [2:03:56] overseas. But in fact, the reason the government is collecting those communications [2:04:01] is because they are interested in the communications of an American who may be communicating with a [2:04:06] foreign target. What penalties, if any, does Section 702 levy against government actors that engage in [2:04:12] reverse targeting or otherwise abuse the FISA framework? Well, right now, there are internal [2:04:18] accountability procedures that have been adopted by the FBI. I don't think that they are public. They were [2:04:24] required by RISA. I don't think that they have been made public, and there's no public information. I'm not [2:04:32] aware of anyone having been disciplined. Do we have an estimate of the volume of Americans' communications [2:04:38] that have been collected as part of Section 702 surveillance? The government has refused to provide [2:04:43] that estimate. Members of Congress have been asking for it since 2011. And has the FBI ever estimated the [2:04:49] volume, to your knowledge? Not to my knowledge. I'm not sure that they are particularly interested in [2:05:00] that number. Now, as you've discussed, according to the ODNI report, queries by FBI were up to 2.9 million [2:05:08] in 2021, declining to 119,000 in 2022, 57,000 in 2023, between April 2024 and April 2025, down to 9,000. [2:05:22] Can you estimate as to why there was such a large number of queries in 2021 and why that number has [2:05:27] come down dramatically in recent years? Yeah. What we've been told by the FBI is that there were [2:05:34] a lot of batch queries or perhaps even just one particularly large batch query. That's when [2:05:40] a bunch of a large number of individuals are sort of queried at the same time under the same rationale [2:05:46] relating to a potential cybersecurity threat. It's still hard to quite figure out the math and how they [2:05:55] got to 2.9 million with that. The argument for why the the queries have come down is because there has [2:06:03] been an effort to put more oversight in place and I think that that is and there's been a lot more [2:06:11] attention. More sunlight. Exactly. There's been a lot more attention paid and certainly the reauthorization [2:06:18] was coming up and so we we saw a decrease but I would just want to remind you that that last number 9,000 [2:06:25] that's the number of known and counted queries. We don't know the actual total number. All right, let me [2:06:31] go to Mr. Scherer and talk about RISA. When we passed RISA, what would you say were the most important [2:06:39] reforms that RISA implemented? Certainly one of the most important I think was the provision allowing [2:06:48] the the chairs of relevant committees on in this body and in the Senate to to be present in FISC [2:06:53] proceedings and and to be able to understand what's happening in that body. I don't know how you provide [2:07:00] oversight to an institution like that unless you could at least attend its proceedings once in a [2:07:04] while. We're all cleared so right would it be problematic to say or the designee of the chairman on the [2:07:11] committee? That that would be a wonderful addition. I'd help us spread the burden wouldn't you say? Yes. [2:07:18] All right. I think the accountability and the accountability. It's a small room but I think there are many of us on this [2:07:23] committee who would be willing to go down there and spend some time in there. And and let me just say [2:07:31] as a reporting requirement of RISA, the DOJ OIG released the report which found that the reforms [2:07:37] implemented have quote significantly reduced the number of non-compliant queries identified [2:07:43] end quote. Now what for the further reforms I mean to reduce this number of non-compliant queries down to zero is a warrant requirement necessary. [2:07:54] I think so. And and even even with a warrant there will there will still be some mistakes made made by [2:08:02] the courts but the number is going to the number is going to go down very substantially if you have an [2:08:07] independent judge looking at these requests. Thank you. Yield back. Gentleman yields back. I believe the law says [2:08:15] we can designate a staff person to go. Yeah but I know we should we should frankly work on making sure [2:08:23] it can be a member and Mr. Klein would be great because he sits on this committee and also the intel committee and that [2:08:28] would be I think ideal. If I could real quick before I recognize the general lady from Vermont. What do we think the [2:08:34] number is? It's not 9000 and we think they got this other route that they're taking. What do we think the number is? [2:08:40] Anyone hazard a guess? I think the number is very close to what it has been historically. [2:08:45] I think they eliminated the girlfriend searches and things like that but they I believe it's a product [2:08:51] of identification so and and way higher I think it's way way up there and they've changed the way [2:08:58] that because the impression is given is it was 200 and some thousand or 120 I get there's some hundreds [2:09:04] of thousands and now they're like they're pounding their chest like oh we got it down to 9 000. I mean [2:09:08] 9 000 is still a concern but we think it's we think it's much higher is that that fair to say? [2:09:12] Probably. Yes. And is Mr. Tolman right that it's probably where it was? Yes. I would I would hesitate [2:09:19] to say simply because I mean if it turns out that that's not the case it doesn't change my opinion [2:09:24] in terms of whether or not we should have a warrant and so I don't want to set some bar that if they go [2:09:29] below it suddenly everything's okay but I but I do want to mention that you know this system system one [2:09:35] or the the advanced filter function that is one instance we know where the FBI basically decided that [2:09:40] something wasn't a query and that it was instead I guess a filter. Yeah. I think an important question [2:09:45] for you all to ask is whether there are other such ways of that they're obtaining U.S. personal [2:09:50] information that they consider to be a filter or a sorting rather than a query because if that were [2:09:55] two the number could be even higher. I apologize. Mr. Chairman when when the FBI was being criticized [2:10:00] that violent crime was on the rise they changed the way they collected violent crime data. Fair point, [2:10:07] very fair point, good point. I'm sorry and I recognize you from Vermont. Thank you Mr. Chair and [2:10:11] thank you to all the witnesses for your time. Ms. Goitin thank you so much for being here. I want to [2:10:17] break this down in simple terms for the millions and millions of Americans who have never heard of FISA [2:10:22] who who have no idea when we talk about the Foreign Intelligence Surveillance Act what we're talking about. [2:10:27] So if you'll indulge me I'd like to walk through it piece by piece. When we talk about communications data [2:10:34] we're talking about texts, we're talking about emails, phone numbers, DMs, that kind of thing. Is that right? [2:10:40] Sort of any, it's actually any information that can be acquired under Section 702, any Foreign [2:10:46] Intelligence information of any kind. So it could include other types of data. I think the focus tends [2:10:53] to be on communications because communications are some of the most private sort of information [2:11:02] that we have in exchange. And Section 702 allows the government to take huge sets of data from [2:11:10] companies like Verizon or T-Mobile as part of its stated mission of trying to track down terrorists [2:11:17] and other security threats. Is that it's no that's actually there's sort of two separate issues there. [2:11:21] One is sort of this data broker loophole by which the government buys data under no statutory authority [2:11:27] whatsoever. Right. So that's not under FISA. It's not under Section 702. It's just they do it because [2:11:32] they think they can because they've decided they can. And so, and I think that's trying to change, [2:11:37] right? I think that's a really important distinction. Yes. Yes. 702, there is a target. [2:11:41] And they are collecting information of or concerning that target. And so they're collecting the targets, [2:11:48] communications data on the target. The issue, of course, is that foreign, the foreign target doesn't [2:11:55] have to be suspected of any wrongdoing. And all of that foreign targets, communications with it, [2:11:59] with Americans would be swept up as well. And so that data may also include Americans' personal, [2:12:06] private information, right? There is a large amount. And the P. Claude used that word. We don't have an [2:12:13] estimate. The government refuses to give us one. There is a large amount of Americans' personal data, [2:12:18] information, communications. And I know this is something that Vermonters care deeply about, [2:12:24] is who's protecting their personal, private information. I'm sure that's true for many of us [2:12:28] on this committee. So, okay, now, here's the rub, right? So essentially, there's this huge secret [2:12:36] database containing all kinds of information on Americans and non-Americans, as you said. And the [2:12:42] government says it can search that database without a warrant. That's what they're claiming. Is that right? [2:12:47] Yes. Okay. So let's say my emails were caught up in one of these data sets. [2:12:54] Landed in the database. Could the FBI search the database for Becca Ballant and access those emails [2:13:02] without a warrant? Yes. And this is what we've been referring to today as a kind of a backdoor search. [2:13:09] Exactly. Is that correct? So has Section 702 ever been used to spy on a member of Congress? In other words, [2:13:16] has the government used a backdoor search to find data on elected officials? The government has run [2:13:22] backdoor searches on members of Congress. We don't know whether any data was returned, [2:13:27] whether they used that data, but they have attempted to find and use data of members of Congress. [2:13:36] So obviously, deeply concerning, these backdoor searches, deeply concerning. Who is vulnerable? [2:13:45] You know, are regular people vulnerable? This is the thing that I want Americans outside of this [2:13:50] committee, outside of Congress to understand. Is anyone vulnerable to this? [2:13:54] If you communicate with foreigners overseas, you are vulnerable. If you communicate with foreigners [2:14:00] overseas, you are vulnerable to this backdoor search. Yes. I mean, the government has to have [2:14:05] a foreign intelligence purpose for the Section 702 program, but foreign intelligence is defined so [2:14:12] broadly that it can include information that simply relates to the U.S. conduct of foreign affairs. [2:14:17] So essentially, any person with an email account or a cell phone could potentially be a target of [2:14:26] government surveillance by our government. And there's no requirement that the government get an [2:14:33] actual warrant to spy on our personal communications. Is that is that what we're trying to get at here? [2:14:40] Yeah. So the government would say that you're not a target because the target was a foreigner overseas. [2:14:44] But of course, if they are then looking for and using your information, [2:14:47] that kind of feels like targeting to me. So it becomes a bit of a semantic sleight of hand. [2:14:51] I agree. And what would happen if we just let Section 702 expire? [2:14:58] I'd be concerned about that for a couple of reasons. I'd be concerned, first of all, [2:15:03] that the government would go ahead and obtain the same information in other ways [2:15:09] that actually come with less oversight, whether it's buying up data from data brokers, [2:15:17] whether it's other forms of surveillance under Executive Order 12333. And there are even fewer [2:15:23] protections for Americans' privacy and civil liberties in those contexts than under Section 702. [2:15:31] Also, I would point out that the government actually has made a case that Section 702 [2:15:38] is valuable for national security insofar as it permits the collection of foreigners' communications. [2:15:47] And so the foreigners' communications that have been obtained have been shown to have national [2:15:54] security value. What the government hasn't shown is evidence that warrantless searches for Americans' [2:16:00] communications has had any significant national security value. [2:16:03] I appreciate it. I see that my time has expired. I just want to say, you know, one of the things [2:16:07] that I try to do in this committee is really try to break it down for people outside of these halls, [2:16:14] these powerful halls of Congress, to explain why it is that we do the work that we do. Again, [2:16:19] I appreciate all of your time, and I yield back. [2:16:21] It generally yields back, and you did break it down. Everyone is in there. They can't police themselves, [2:16:28] so much so that they actually search members of Congress, individuals in the body responsible for [2:16:33] setting their budget. If that's not a problem, I don't know what is. The gentleman from Alabama is [2:16:38] recognized. Thank you, Mr. Chairman. Mr. Chair, what is the purpose of Wood's procedures? [2:16:44] As I understand it, the Wood's procedures are an internal mechanism in the Justice [2:16:52] Department and the FBI to try to be sure that there's adequate vetting before a warrant application [2:17:00] is filed in the FISA court. You think the Wood's procedures should be codified, given that the FBI [2:17:06] is failing to follow their own procedures? I'm not sure codifying them would be that useful. I think [2:17:14] much more useful would be to adopt the kind of amicus participation position mechanism that we've [2:17:21] discussed earlier. So what other kind of procedures are in place to protect against malign use of the [2:17:26] FISA? What would you recommend? You mentioned the amicus, but are there other procedures in place [2:17:32] that should be protecting the American citizens? With respect to the Title I process, I think the [2:17:39] amicus provision that we've discussed is the most useful. If we look at FISA more broadly and include [2:17:44] Section 702, then I think the other three reforms that we've discussed here today would be extremely [2:17:52] important. A general warrant requirement before before the FBI can search the communications of [2:17:59] Americans, for one thing, tightening up the the electronic communication service provider definition [2:18:08] that was unfortunately broadened in the last version of the of the reauthorization, tightening that up [2:18:14] so that it excludes really so that excludes any entities other than data centers, which apparently [2:18:22] is what the the FBI was trying to ensure that they could that they could get at there. There's just no [2:18:29] reason to to basically dragoon churches and small businesses into conducting surveillance on behalf of the [2:18:37] NSA and the FBI. And then closing the data broker loophole so that so that if the government wants to buy [2:18:45] data from data brokers that that contains lots of personal data about individuals, before they can [2:18:52] search that data, they have to get a warrant to do that, just like we're proposing that they have to get [2:18:57] a get a warrant in order to search the 702 database. I'm gonna change gears on you a minute, Mr. Scheer. [2:19:04] You represented Carter Page and his lawsuits against the FBI, correct? Correct. During Crossfire Hurricane [2:19:11] investigation, Mr. Page actually reached out to the FBI and offered to be interviewed. Is that correct? [2:19:16] And offered to help them. Yes. Yes. Why did why did he reach out to the FBI? I guess would be the first [2:19:23] question. Well, he he was already helping the CIA with concerns that they had about things going on in [2:19:31] Russia. And and when he learned that there was some FBI interest, I think he he felt like, you know, [2:19:37] maybe I can be helpful to the FBI as well. Why do you think they turned down the opportunity to [2:19:42] interview Mr. Page? Well, I think I think the independent investigation of that of that [2:19:50] investigation showed that the FBI was or elements in the Justice Department where we're trying to [2:19:58] investigate the incoming administration and they were trying to create the appearance of a tie between [2:20:04] the incoming administration and Russia. And Carter Page was, you know, was the one staffer who had [2:20:11] some well established contacts in Russia. And so they chose to focus on him. Was that part of the [2:20:16] reason they went after General Flynn to you think the whole Russian collusion narrative was part of [2:20:20] that? Or was that a separate investigation? I think it was closely related. Thank you. Thank you. [2:20:27] Mr. Holman, I mean, Mr. Tolman, I'm gonna hit real quick with you. What type of information do law [2:20:33] enforcement agencies? What are they purchasing from data brokers? And what are they using it for? [2:20:38] Well, as as you know, there's so much data that is collected that from outside the government, [2:20:47] that there's really no limit to what they can purchase that can be obtained through online use, [2:20:54] through emails, through through other data points, financial institutions. They're really if if you think [2:20:59] about it, it could be in its in its worst form, the ability to collect everything that they can't [2:21:07] collect under a warrant without a warrant. Very dangerous, I would assume, for personal privacy, [2:21:13] and certainly for our amendments to protect those privacies. You know, in 2023, the FBI admitted to [2:21:19] buying precise geolocation data derived from mobile phone advertising. What should Congress do about this? [2:21:27] You know, I became aware of individuals, for example, that traveled to Washington, D.C., [2:21:37] were not traveling on January 6th to the rally, were not entering the the Capitol. They simply were [2:21:42] traveling. All of their location was obtained. No warrant. So Congress has to recognize that any thought [2:21:52] that internal regulation is going to control the use of power by the FBI is going to fail. [2:21:59] Does that get back to the Fox Guard and the Hent House? That's correct. [2:22:02] Earlier. Thank you. Mr. Chairman, I'm running out of time, so I'll yield back. Thank you. Thank you. [2:22:05] Not only their location, they got their bank records. They got what they bought. They overlaid [2:22:11] that if they if they banked at the Bank of America, they overlaid that if they ever purchased a firearm. [2:22:15] So well, well said. A gentleman from Illinois is recognized. Thank you, Chairman Jordan. This hearing- [2:22:22] I apologize. You guys have been going two and a half hours. If any of you need a break, make sure [2:22:29] you- we'll give you a break and we'll keep rolling. But I just thought of that because I just took a [2:22:33] break. So but the gentlemen recognize you get your full time. Thank you, Chairman Jordan. This hearing, [2:22:39] of course, marks the start of negotiations over the reauthorization of FISA Section 702 at a time when [2:22:48] our civil liberties are under assault and the public lacks trust in government, the stakes could not be [2:22:55] higher. As my colleagues and witnesses have pointed out, Section 702 has been repeatedly abused under both [2:23:03] Republican and Democratic administrations. It's become a tool of mass domestic surveillance and an end run [2:23:10] around the Fourth Amendment as well. It should be clear by now that we cannot trust the executive branch to [2:23:17] regulate itself. This is a crucial moment for Congress to assert itself and its constitutional authority to [2:23:24] protect our constituents from warrantless spying. It's clear to me- it is not clear to me- that Section 702 [2:23:33] can ever be reformed to the point where it doesn't threaten our constitutional rights. But if Congress is [2:23:41] going to reauthorize it, then we must insist on major changes. That means requiring a warrant for U.S. [2:23:49] person searches, closing the data broker loophole, reforming the FISA court, and narrowing the EC-SP [2:24:00] definition, and requiring more transparency and oversight. It also means getting rid of the immigrant [2:24:07] vetting provision that was included in RISA. This over-broad law requires Section 702 querying procedures [2:24:17] to, quote, enable the vetting of all non-U.S. citizen persons who are being processed for travel to the [2:24:25] United States, end of quote. This is a major separation- expansion, rather, of government surveillance powers [2:24:32] instead of targeted surveillance aimed at specific national security risks. The intelligence agencies [2:24:40] will now surveil over 10 million people, non-U.S. citizens entering the country each year without [2:24:49] suspicion. This will also affect the privacy of Americans whose communications will be accessed at [2:24:56] much higher rates and subject to further abuse by agencies that have shown complete disregard for [2:25:03] our civil liberties. It's not just progressive Democrats who oppose this provision. Chairman Jordan [2:25:08] opposed it and spoke against it on the House floor, highlighting that it would, quote, [2:25:14] authorize the surveillance of a whole new category of individuals, end quote. Ultimately, [2:25:21] 80 Republicans voted against it. Ms. Gautian, thank you for being here today. Can you speak to the [2:25:28] potential harms of the immigrant vetting provision and the significance of the bipartisan opposition to [2:25:34] it? Sure. So ordinarily, in order to conduct a query, the rules for the agencies require them to [2:25:41] have to reasonably believe that the query will yield foreign intelligence. That's a very low bar, [2:25:47] given how broad the definition of foreign intelligence is. And yet, despite how low the bar is, [2:25:53] unfortunately, a provision that was adopted last year in RISA. And again, as you mentioned, [2:25:58] the chairman opposed it. Most people in this room, I think, opposed it. But it was still adopted. [2:26:05] That allows, in some ways, it basically requires agencies to have procedures in place that permit [2:26:11] suspicion-less queries for people who are seeking to travel to the United States, whether it's as a [2:26:18] tourist or whether it's on a work visa or a student visa or whatever the case may be, even if none of the [2:26:26] many vetting mechanisms that the government already uses has turned up any reason to worry about these [2:26:33] individuals. This is, you know, completely unnecessary. People should be able to travel to this country to [2:26:40] study and work in this country without turning over their personal communications to be read by the [2:26:47] government. There are plenty of vetting mechanisms in place to ensure that they don't pose a threat to [2:26:52] national security. And there is an impact on Americans' privacy, on U.S. persons' privacy as well, [2:26:59] partly because these are totally suspicion-less searches. So to the extent that these queries [2:27:05] return communications that include Americans as participants, these are very likely to be completely [2:27:12] innocuous conversations with no foreign intelligence in them, and that is an intrusion [2:27:17] on these Americans' privacy. Also, as we've already seen, there have been significant compliance problems [2:27:22] with this travel vetting provision and including multiple queries of U.S. persons under this authority. [2:27:29] Thank you so much. You're underscoring that this is not a partisan issue. And of course, [2:27:34] I look forward to working with Chair Jordan and other members and other parties to ensure [2:27:40] that this provision is not included in the reauthorization of Section 702. I thank you, [2:27:46] and I yield back, Mr. Chairman. Chairman yields back. The gentleman from New Jersey is recognized. [2:27:51] Thank you, Chairman. So it's good to see, because especially in a committee where we debate a lot, [2:27:58] we argue a lot, we have different viewpoints on, quite frankly, just about everything that we are on, [2:28:04] by and large, all of us on the same page with this. It is heartening, and it is good. [2:28:10] FISA, the misuse of FISA, was truly, I believe, one of the low points of our republic. What happened, [2:28:18] invading people's personal lives. If there's anything, and you all know this, you're smarter than [2:28:23] me, historically, that this country, that this republic was supposed to stand for, was that individual [2:28:29] freedom and individual rights, and not to have the government, because of political reasons, [2:28:35] or social reasons, or religious reasons, for any reason, invade our privacy, invade our family, invade [2:28:43] our lives. So we had hearings, as you all know. We were all here. Most of us were here at the time. [2:28:51] Really dug deep. I want to thank the Chairman as well. He never gives up. We are going to get this done. [2:28:57] We had hearings, and there was some disagreement, not so much within this, [2:29:03] among us, but more the disagreement was with other committees and other individuals in Congress. [2:29:09] So here's my question. This is what I want to get down to. We did legislation. It was an improvement. [2:29:14] It was a compromise. That's all wonderful. We want to still do better. So if you could, and we'll start [2:29:22] with Mr. Tolman, just go down the line relatively briefly. What has worked well? Where have we done [2:29:27] a good job? And by the way, if you think we haven't done a good job anywhere, you can say that. Nobody's [2:29:31] going to get mad. And where are we vulnerable? Where do we still have problems? Where do you worry at [2:29:37] night that we are going to lose our precious freedom? Mr. Tolman. The first thing that comes to mind that you [2:29:44] did well is you won the public debate on this issue. It used to be very siloed, limited voices that [2:29:56] were shouting, this is a concern, and it's going to violate citizens' rights, and they're going to [2:30:02] abuse it. And it was not believed, and the public was not aware. This body, and I give this House the [2:30:08] credit, not the Senate, I give this body, this chairman, and others that turned the tide in the [2:30:16] public debate on this and the awareness. And that, to me, is the battle. I would say the thing that [2:30:21] keeps me up at night is this. I would like our FBI to get back to finding bank robbers and less [2:30:30] intelligence gathering. And until that happens, we will always need robust guidelines to rein them in. [2:30:36] Well, thank you for the question. We've discussed earlier four specific reforms that I think all of [2:30:46] us agree on that need to be made. One of those is fixing something that happened with RISA, which is [2:30:55] the over-expansion of the definition of electronic service provider, which was expanded so much that [2:31:02] it now includes many small businesses and even churches and other institutions. And that needs to be [2:31:09] pared back and limited to its original purpose, which is to allow the FBI to reach data centers. [2:31:16] So that's one important reform. We've also talked about closing the backdoor search loophole in FISA [2:31:24] that allows the government to search Americans' information. They're some of their most private [2:31:31] information without a warrant. We've also talked about closing the so-called data broker loophole, [2:31:36] which allows government agencies to essentially buy their way around the Fourth Amendment just by [2:31:42] buying data from data brokers. And then there's a real need still. There were some useful reforms made [2:31:52] in RISA to oversight of the Foreign Intelligence Surveillance Court. But there's an additional important [2:31:59] reform that we believe needs to be made, which is to expand the amicus program within that court so that [2:32:07] independent privacy experts are brought in, in sensitive cases, to advise the court and act as kind [2:32:16] of a counterweight to the FBI and the DOJ who, when they try to seek warrants, to have somebody else in [2:32:22] the room who has a responsibility for protecting Americans' privacy generally to ensure that the [2:32:28] FISA court does that. So thank you. I only, you know, between the two of you have 17 seconds if you can [2:32:35] really just. Sure. I'll be real brief. Second everything that's been said. I think that this is [2:32:40] critical to continue the conversation because, as I mentioned in my opening statement, this is a crisis in [2:32:45] faith in the government, in a key agency and agencies that are responsible for protecting us. And that's [2:32:50] why, if we get these reforms done, that can go a long way towards fixing that problem. Thank you. [2:32:54] I think there were some helpful reforms in RISA. I think the main problem is it just didn't go far [2:32:58] enough. It didn't go far enough because there wasn't a warrant requirement. There are a couple of [2:33:01] places where RISA took some steps backwards. That includes the ECSP provision. It also includes a couple [2:33:07] of provisions that actually weaken amici that we haven't talked about yet. And maybe we can talk about [2:33:11] them later. But that's, yeah, that's nice. In plain vernacular, though, the FBI still needs a makeover. [2:33:18] We still need we can't give up on this. Chairman, I know I'm over just for a second. I love old mystery [2:33:24] shows, old mystery. I was watching an old mystery. It dates back to the 1940s. And they're talking to [2:33:29] the FBI and how they overreached and were punishing somebody because they disagreed with something they [2:33:34] did. And I was sitting with a friend of mine. He said, God, that would never happen. I said, boy, [2:33:39] are you wrong. That show is right. Thank you. I yield back to the gentleman's point. I said this earlier. [2:33:44] I do believe it's accurate to say of the 12 billion dollar budget that the FBI has, [2:33:48] over half that budget is spent on surveillance or surveillance like activities. And I believe [2:33:53] over half the personnel, to Mr. Tolman's point, you want them going after the bank robbers and [2:33:59] those kind of folks versus what seems to be the focus of the last several years. The gentleman from [2:34:06] Florida, the new ranking members recognize. Thank you, Mr. Chairman. Will the gentleman yield? [2:34:12] For a second. Sure. I was kidding. Go ahead. I was really interested in what was about to happen. [2:34:21] You fooled me too, Brad. Well, I was going to say, Mr. Chairman, thank you. And, you know, [2:34:26] I sit at the end of the dais. I'm the last Democrat here. And so, you know, many questions [2:34:31] and comments have already been made on this important topic, which is FISA. And I am absolutely for FISA reform. [2:34:39] But, you know, Mr. Chairman, when I think about FISA, you know what I really think about? [2:34:44] I think about affordability and the hoax of affordability. OK, because, you know, and perhaps [2:34:51] someone should tell the president that every time he says affordability is a hoax, like another Democrat, [2:35:01] like sprouts out of the ground and like lands in the House of Representatives and eventually will get a [2:35:07] gavel. And if he doesn't like saying affordability, that's fine. We can come up with another word. [2:35:14] If he doesn't want to say that things are unaffordable, we could just say things are expensive. [2:35:19] We could agree to just say that instead. We could just say things are expensive instead of unaffordable. [2:35:28] I really want to talk to the person who puts the words into the teleprompter, because this is like [2:35:32] a Ron Burgundy situation. Like every time he says affordability is a hoax, he is a gentleman yield in a second. [2:35:41] Let me do this and then I will yield. But like every time he says affordability is a hoax. [2:35:46] I mean, it's like saying go F yourself San Diego. OK, or or is it San Diego? [2:35:51] You know, scholars say the translation was lost long ago. [2:35:54] I don't like there's just no there's no partisanship on the grocery store bill. [2:36:01] I know what you're saying, Jared, be honest. Tell the other side of the coin. [2:36:07] OK, gasoline prices are down. Right. See, I'm being fair. Gasoline prices are down and that's great. [2:36:13] Getting energy prices down is important. But, you know, they're not as down as much as he's projecting. [2:36:21] But the problem is you can't eat gasoline. Right. Can't eat gasoline unless, of course, [2:36:26] Kennedy proposed that as some sort of way to get rid of Covid. OK. [2:36:31] And what I would say is, is that even though we all subscribe to our own set of facts these days, [2:36:37] we do. The only thing is that still is a constant is that two plus two still equals four for now. [2:36:43] OK. And so, you know, when you go to the grocery store and you get the bill, there's no partisanship on [2:36:51] the bill. There's no partisanship on that bill. There's just prices. And so you can go to all the [2:36:55] stadiums you want. You can fill all the stadiums you want and you can talk about, you know, this [2:37:00] being a hoax all you want. But as long as people are paying double and triple for groceries and rent [2:37:06] and health insurance and home insurance and transportation and car payments, it won't work. [2:37:11] OK. And you're going to say, Jared, how do you know it won't work? [2:37:14] We tried it. We tried it for a whole year during the election. The economy is great. [2:37:22] The stock market is great. We try to tell people how to feel. And it didn't work. [2:37:26] In the weirdest plot twist ever, I can't believe Trump is copying your favorite president, Joe Biden. [2:37:34] I feel like any moment Trump's just going to be like, and Trumponomics is great. I mean, it's just [2:37:40] wild. Like, I feel like Howard Lutnick is about to come on television and talk about how crude [2:37:44] today prices are coming down. Right. And so look, you know, let me just say, [2:37:51] this is why I believe in FISA reform. OK. And now I will yield to your question. [2:37:58] Well, you almost started to answer for me. So I love you, man. You're a great guy. [2:38:02] Great Congressman. But that doesn't have a damn thing to do with what we are talking about today. [2:38:08] I know. But 50 people already spoke and asked all the questions and comments. [2:38:13] The subject matter today is really, really important. I get it. I get the politics. [2:38:17] I get the affordability. No, well, affordability is probably slightly more important. [2:38:21] But but this is people's personal freedom. Let me tell you, people died multiple times in many wars, [2:38:29] right back to the Revolutionary War. So people could believe what they want to believe, [2:38:33] say what they want to say, believe in a God. Reclaiming my time quickly and then I'll yield back. [2:38:38] Listen, don't get me wrong. The Revolutionary War, very important. But I think most Americans care about [2:38:42] what they're paying for goods today rather than what happened during the Revolutionary War. [2:38:47] The gentleman would yield again. Yes, I will yield back. [2:38:49] They do. They also care about their personal freedom. They care if their daughter or son or [2:38:53] brother or sister is being surveilled, if they're losing their freedom, if the judicial system is [2:38:58] going out to hurt them because they believe something different. Reclaiming my time quickly. [2:39:01] It's a big deal. And that matters. That's what we should be doing today. [2:39:04] Reclaiming my time. I know they do care about that. But if they can't pay their rent and they can't feed [2:39:08] their family, the rest of it is less important. And so that's why I brought up affordability, [2:39:13] because quite frankly, it's not a hoax. It's a real thing, just like FISA is. And, you know, [2:39:18] we're just not having hearings on that. And, you know, and I'm still waiting for Pam Bondi to come [2:39:22] back. So look, you know, we got like a week left. Oh, the chairman's got something on it. [2:39:26] No, I'm just I didn't know if you had an announcement. I yield back, Mr. Chairman. [2:39:29] No, I was I was going to cut you off, but not till you had your full five minutes. [2:39:34] And I appreciate my placing on the committee. Yeah. And Miss Bondi is coming. She was scheduled. [2:39:40] And then we had this 43 day month and a half shut down by the Democrats. So she wasn't able to be [2:39:46] here. So we'll. And then the speaker furloughed us for 45 days. I had never been furloughed before, [2:39:52] by the way. We will. OK, we will. We will have her. The gentle lady from Wyoming is recognized. [2:39:59] Classic Democrat ploy deflect attention from every single thing that he described [2:40:05] about affordability being caused by their policies and then turning around and attempting to blame us [2:40:11] for the problems that they created with the housing, the increase in housing costs, [2:40:17] the increasing in food costs. We're fixing those things, the policies that they implemented. And I [2:40:23] have every expectation that we will see a decline in some of those prices next year. But I actually want [2:40:28] to talk about why we're here today, because it is a very important hearing. I have long been a proponent [2:40:34] for including sunsets in government programs and authorities. And I believe we commit legislative [2:40:39] malpractice in a lot of the things that we do when we don't include sunsets. I hold this principle to be [2:40:45] especially true when dealing with technology and technological advances, which always seem to move much [2:40:52] more faster, much faster than government. And we can evolve when we're drafting our bills. FISA is a perfect [2:40:59] example of this issue since its creation in 1978. The scope of FISA authorities has continually grown, [2:41:06] as has its abuses. As the intelligence agencies we oversee push their surveillance abilities beyond [2:41:13] these statutory allowances, that issue today is compounded by new technologies and the commercial [2:41:19] availability of data. Today, we as legislators face two unique challenges. First, reforming Section 702 to [2:41:26] correct past abuses, which for some appears to be a controversial exercise in and of itself, although I don't [2:41:33] see that as to why it should be controversial. But second, we also need to update federal laws and protections to [2:41:40] account for the pace of technological advancement. And here we are, we're actually talking about and working on reforms, [2:41:47] reforms with the chance to vote on those reforms in 2026 for the second time in my true terms in Congress, [2:41:53] which I think is, is, is a really good deal. Why? Because Congress was wise enough to sunset these [2:42:00] important authorities to aid in our ability to consistently review them. Mr. Chernysky, technological [2:42:09] advancement and the private sector always seem to move faster than the government. Does maintaining these [2:42:14] two-year reauthorizations of Section 702 provide a better chance for us to keep up with the pace of [2:42:20] those changes and, and also to address any new violations that we may see? Thank you for the [2:42:26] question, Representative. And I think that sunsets on a shorter time frame are an amazing tool for you [2:42:31] and this committee, more broadly speaking, to assert its authority and its oversight function over these [2:42:35] critical agencies. We want them to be able to go and do their national security mission to keep this [2:42:39] country safe. But at the same time, as you documented it, as these witnesses have, you know, documented, [2:42:44] there is a litany of abuses that FISA has enabled. And what better way to make sure that that is on the [2:42:49] decline, if not hopefully ideally eliminated, than by having, you know, these, these shorter reauthorization [2:42:54] periods. And I've been an advocate for the warrant requirement and some of the other changes that we [2:42:59] have made, some of the other modernization and, and the, the safeguards that we've put in place. [2:43:05] You've been asked an awful lot of questions today. What I'd like each of you briefly to do [2:43:09] is to describe for me, for us, if you see any other reforms that we should be making when we re, [2:43:16] when we revisit this in April of next year. Mr. Tolman, starting with you, have we touched on all of [2:43:22] your proposed changes or do you have additional ideas that you would like us to consider? With respect [2:43:28] to 702, we've, we have addressed them. But with the FBI, I think we have work to do. I think [2:43:35] shifting their mission back to interdiction of drug and violent crime should be their central [2:43:42] focus and not the gathering of intelligence. And until then, we will see abuses that we have to [2:43:47] rein in. Just very quickly, I don't know if you were aware, but at the beginning of the 118th [2:43:52] Congress, when we were doing the Select Committee on Weaponization of the Federal Government, we had a [2:43:57] former FBI agent who came and testified and he talked about how the mission had been shifted [2:44:02] after 9-11. And I think you've touched on that briefly today as well. And I agree with you, [2:44:07] we need to get back to a pre-9-11 mentality with regard to the FBI. I think it's important and I [2:44:13] appreciate your advice in that regard. Mr. Scherer. Thank you for the question. If I could add one [2:44:20] thing to the four specific reforms that I mentioned earlier, I would add the NGO Fairness Act, which I [2:44:26] know that this committee has already passed and reported out, but perhaps that could be attached [2:44:32] as part of the 702 reauthorization bill, because it's certainly closely related to the items in that [2:44:38] bill. So I would suggest adding that. Thank you. Mr. Chanarski? Yes, I would second Mr. Scherer's point [2:44:45] of adding in the NGO Fairness Act into that and everything else, the four core ones that we mentioned, too. [2:44:50] Thank you. And Ms. Grotin? If there was one thing I would add to those four things, which I agree with, [2:44:55] it would be closing the backdoor search loophole for Executive Order 12333 collection. [2:45:01] Okay. Thank you. I appreciate it. And with that, I yield back. [2:45:04] The gentleman yields back. If the gentleman from South Carolina, we're going to just flip. If we could, [2:45:07] Mr. Grothman has to go. We'll go Mr. Grothman and then we'll come right to you on Mr. Frye. So Mr. Grothman is [2:45:11] recognized. Thank you. Mr. Scherer, when the FBI asked the FISA court for a Title I warrant to surveil [2:45:19] someone in a politically sensitive case, let's say a member of Congress, an employee of a presidential [2:45:26] campaign has actually happened to President Trump. This all takes place in a secret proceeding. [2:45:32] Right. Generally speaking, is there anyone in the proceeding advocating for privacy rights in the [2:45:42] Constitution? No, currently there is not. And that's a big problem. And I think that was a process, [2:45:50] which if it had been in place during the Carter Page investigation, likely would have prevented [2:45:56] the shenanigans that happened there. In fact, it could well have deterred the FBI and the Justice [2:46:00] Department from even seeking that warrant at all. Can you give us a suggestion what to do about it? [2:46:05] Yes. I think the best solution is to adopt something along the lines of the Lee Leahy [2:46:13] reform that was adopted by the Senate about four years ago by a vote of 77 to 20 or something like [2:46:21] that. And what that reform would do is ensure that there is, in particularly sensitive investigations, [2:46:28] that there is an amicus in the room and as part of the process when the FISC considers granting a warrant [2:46:35] in those kinds of cases. And so it would be somebody who's trained in privacy, somebody who has a full [2:46:42] security clearance and can serve as a check, a counterweight, if you will, to the Justice Department [2:46:49] lawyers who, of course, will be seeking the warrant, but somebody who can be there and knows enough about [2:46:54] the process to be able to help the FISC judges ask the right kinds of questions to be sure that there aren't any [2:47:00] shenanigans going on. Okay. You've spoken about the data broker loophole where federal agencies [2:47:07] ranging from FBI, the IRS, by geolocation, internet search and purchase history and other sensitive [2:47:15] information about Americans, all without a warrant or any reason to believe most of these people have [2:47:21] done anything wrong. As we consider Section 702 a surveillance authority that has been repeatedly [2:47:28] abused by the FBI, why is it important to also look at other government practices like data purchases [2:47:35] that violate Americans' constitutional privacy rights? Well, thank you. Thank you for that question. [2:47:41] And I think you're absolutely right that purchasing data can be an effective way currently for agencies to [2:47:51] do an end run around the Fourth Amendment, and they shouldn't be allowed to do that. Whether or not they're [2:47:57] allowed to purchase the data, they shouldn't be allowed to use it to surveil Americans without [2:48:04] going through the same warrant process that we've been talking about with respect to the Section 702 [2:48:09] database. Are there any procedures in place now to protect against the malignant use of FISA? [2:48:15] From the malignant use of FISA? Malignant use of FISA, yeah. Well, there are some procedures in [2:48:21] place and some that were enacted by this body a couple of years ago that are useful and important, [2:48:28] but there are a number of others that need to be added, like the warrant requirement for backdoor [2:48:32] searches. Are there any consequences for FBI agents that conduct improper searches? I understand [2:48:41] there are potentially some administrative consequences that they can lose their security [2:48:46] clearances if they're found to have violated the department's own rules. Have they ever been used? [2:48:52] Not that I know of. Okay. How did the FBI allow such a profound breakdown in internal communication [2:48:59] and verification processes that investigators failed to properly report Carter Page's status as an [2:49:07] operational contact, information they already possessed, ultimately enabling an attorney to alter [2:49:13] documentation and resulting in nearly a year of unlawful surveillance? Well, the independent counsels who [2:49:20] investigated that whole sordid history concluded that it was not just an innocent mistake. Okay. [2:49:29] Mr. Tolman, we'll try to give you a quick question at the end. There are reports indicating that some [2:49:34] agencies are spending tens of millions of dollars on multi-year contracts to purchase sensitive data on [2:49:40] American citizens. Can you elaborate what problems this poses? Well, first and foremost, if the internal [2:49:50] guidelines to help prevent abuse become effective, the FBI's response is to not to not stop wanting [2:50:02] to get that information. Instead, they've pushed it out to purchasing that information and it's the tip of [2:50:08] the iceberg. If they expand that program, there's no end to what they can get without a warrant. Okay. Thank you very much. [2:50:16] The gentleman yields back. We have about 20 more minutes. If that's good, we'll just keep on moving. [2:50:23] Oh, does someone need a break? Ideally, two minutes. I understand. We will take a, you can take a break. [2:50:35] Okay. And if your questions are going to the gentlelady, we'll hold. If not, we'll let you, Mr. Frye, [2:50:41] continue with the three remaining witnesses. We'll move around. We've got a lot of questions. All right. All right. [2:50:45] Thank you, Mr. Chairman. Mr. Chair, would you agree that the Woods procedures serve as a good faith [2:50:53] oversight safeguard and that obstructing them in any way removes and undermines public trust in the FISA [2:51:00] process? I'm not proposing that they be removed or obstructed. If they work properly, then they serve [2:51:10] a useful function, but they're no substitute for Congress's playing its role in ensuring accountability. [2:51:16] But don't, but don't, but do you agree that they serve as a oversight safeguard? [2:51:23] Yes. And so violating them by some government official would, would undermine public trust in [2:51:27] what the, what the government. I'm sorry, I misunderstood your question. You're right. [2:51:30] Violating them would undermine public trust. I agree. Thank you for that. Mr. Tolman, [2:51:36] during Crossfire Hurricane, FBI attorney Kevin Clinesmith altered an official document [2:51:41] used in a FISA application, enabling the government to illegally surveil Carter Page for 11 months. [2:51:47] Clinesmith ultimately received 12 months, only 12 months of probation. Do you believe that that's [2:51:53] sufficient punishment for his, his violation? It serves us no, no deterrence. And, and deterrence [2:52:03] is the predictability of being held accountable. Well, that was my next question too, which was [2:52:08] to the extent that you, you didn't think that it was sufficient. Would that, would that be an actual [2:52:14] deterrent for other people seeking to violate, uh, seeking to violate FISA? Um, and would it, [2:52:23] are there additional avenues that exist to hold the FBI accountable in lieu of that? [2:52:27] There, there really are no, no avenues. In, in fact, the ethics investigations that would be conducted [2:52:34] are all handled in house. And subsequently in any solicitor general or office of inspector general that [2:52:42] would actually attempt to investigate it, they're limited in that they can't themselves bring any [2:52:48] criminal action. So I would say there's no current deterrence. How would we increase that deterrence? [2:52:56] Well, certainly not relying on the courts and a Washington DC jury to actually administer, [2:53:05] um, you know, accountability. Mr. Tolman, you, are you saying that Washington DC doesn't have all [2:53:10] the answers for the American people? I, I think that's exactly right. [2:53:15] And I think this is why Congress is so important right now. [2:53:18] Thank you for that. I, I wholeheartedly agree. Mr. Scherer, back to you. In 2019, [2:53:22] the U S court of appeals for the second circuit raised concerns about section 702's ability, [2:53:28] uh, to enable broad queries of Americans communication. Uh, the court essentially held, [2:53:33] uh, that law enforcement cannot search people's communications without any suspicion, [2:53:37] uh, just to see if something incriminating turns up, um, uh, which of course it would violate their [2:53:44] fourth amendment, uh, rights. Is this an example though of government fishing, uh, for criminal evidence [2:53:50] at the expense of the constitution and people's fourth amendment rights? [2:53:53] I think that's a fair characterization. [2:53:55] How, how widespread do you believe this practice is? [2:53:59] Well, just from the number of queries that are run, it, it seems like it's quite right, quite widespread. [2:54:08] And yet another reason why it's important to have a, um, to have a warrant requirement before the 702 [2:54:14] database can be searched. Oh, I, I agree with you there too. Um, and I think the number of queries [2:54:19] and the, the amount of people that had access to this, um, is, is very alarming, uh, as well. [2:54:25] What do you think this also reveals about the culture within the FBI, uh, that they do this with, [2:54:32] with impunity without regard to people's constitutional rights, uh, and without, you know, any, [2:54:37] any reasonable suspicion that any particular person is engaged in some criminal activity, [2:54:43] unless they just happen to dig it up? Yeah. Well, certainly the whole Carter Page fiasco and many [2:54:49] other, many of the other examples that we've discussed today are, are examples of a, of an [2:54:54] investigation culture that seems to have, seems to have run amok and yet another reason why, uh, [2:54:59] the article three branch should be, uh, should be brought into the mix to exercise some oversight. [2:55:05] Thank you for that. I'm gonna switch gears just a little bit too, just about, uh, government data [2:55:10] purchasing, uh, obviously government agencies are using this, uh, in what ways should Congress [2:55:19] look to close these loopholes that allow them to purchase, um, this data that evades people's [2:55:26] Fourth Amendment liberties? Is that to me? Yes, sir. Uh, well, whether or not Congress decides to allow [2:55:34] the agencies to purchase the data, uh, how they use it is the key question. And, and I think before [2:55:42] the government can search any database, whether it's the 702 database or a database consisting of, [2:55:48] uh, of data that has been purchased, there should be a requirement that if they're, if they're looking [2:55:53] at sensitive personal data, uh, including people's communications, uh, that they ought to have to get a [2:55:59] warrant, uh, to search it. Thank you for that. Uh, Mr. Chairman, I see my time has expired and I yield back. [2:56:06] Gentleman yields back. The gentleman from North Carolina is recognized. [2:56:09] Thank you, Mr. Chairman. Thank you for holding this hearing to the witnesses. [2:56:12] We certainly appreciate your duration, your, uh, endurance and the, the candid answers that you've [2:56:16] given. I've got to say that, that every time we bring this, this statement up, it stuns me. [2:56:22] We pass a law to surveil foreign threats to the country and we abuse it by spying on the United [2:56:30] States citizens that we are tasked to protect. It's when you, when you boil it down in that simple [2:56:35] term, it's stunning. It is stunning. You know, warrantless access allowed under a trust agreement [2:56:42] with those who are investigating. You know, this comes from someone myself who worked with agents. [2:56:48] I worked with the law enforcement professionals all over this country who are very proficient at [2:56:54] investigating. I was proud to do it. I was honored to do it, but I must say that this particular sect of [2:57:01] the law is entirely too secretive. It's entirely too bureaucratic. There is absolutely no disinfectant of [2:57:09] the bright lights of a courtroom that people have access to. And when you look at, uh, kind of the [2:57:15] construct, plainly speaking with this power, it enables the investigators to target people, [2:57:22] not criminal behavior. And that is the inherent danger that I see here. And when you open up [2:57:29] just the documented abuses, again, even the documented abuses we receive in a report and we trust that [2:57:35] those are all the abuses, right? That's, that's to me again, a very problematic posture, but you know, [2:57:41] some of the abuses include intrusive searches for nefarious or creepy reasons, right? Personal [2:57:48] reasons from bureaucrats who are nameless and faceless, who have not been fired or punished. [2:57:54] Some of these intrusive searches, uh, are for political motivations. Again, see Carter Page, [2:58:00] right? And there's no disinfectant of the bright light. When I was doing these investigations, [2:58:05] we would observe criminal conduct. We would seek authority to get the information and then we would [2:58:12] get the warrant, right? Then once the information was in hand, we would go through it to determine [2:58:18] what charges, if any, would come forward. So with that as my basis, let me just ask, [2:58:23] is it a problem that the information is already in hand before any warrant is ever needed in the process? [2:58:30] Mr. Sher. It is a problem. It's probably inherent in the whole section 702 collection process and, [2:58:40] and in the, the legitimate need to engage in surveillance of foreigners. Um, but it's a, [2:58:47] it's a problem that is, I think, easily solved with a warrant requirement. Um, before, before the [2:58:53] information can be, can be queried on individual Americans, then there needs to be a warrant in place. [2:59:00] Well, that's getting to the root of my problem. Yeah. The query is a fancy word for search. [2:59:04] Correct. There's no way to prevent searches in the back channels of a deep government bureaucracy, [2:59:10] correct? Uh, there may be no way to prevent them, but there's certainly ways to deter them. Sure. [2:59:18] But we're not doing that. But again, you have a pot of information in the back channels of a [2:59:23] bureaucracy and we're trusting them not to abuse access. Is there, is there a way to preclude access [2:59:29] to that information without a warrant? Not that I'm aware of, which is why a requirement is so [2:59:36] important. Yes. That's my problem. Uh, is there a way to preclude or is there a way to gauge whether [2:59:42] or not there have been queries if they want to hide those queries? They being the FBI. Yeah. I, [2:59:48] I'm not sure there's a way to do it. Mr. Tolman. No, my, my concern is if, for example, [2:59:57] take the analogy that the searches are large boxes in an Amazon truck, right? And if the FBI knows that [3:00:05] each box has multiple individuals in it, my concern is they'll say we're only going to search this box [3:00:13] Right. Where the target actually is, but there's multiple individuals that deserve protection under [3:00:19] the Fourth Amendment and we don't get to when they're searching those. Right. You were raising your hand, [3:00:24] ma'am. Yeah. I mean, you raise an excellent point, which is if they collect pretty much everything, [3:00:29] any of these backend protections, including the requirement to get a warrant are going to be [3:00:34] imperfect necessarily. Right. That is a very good reason to limit the collection on the front end. [3:00:38] And one of the reforms. I mean, just so people know, we would have evidence that a criminal actor [3:00:43] was using his or her cell phone. We would ascertain the number through investigative means. [3:00:48] And then we would apply for a warrant to get location data, who they were calling. And then if need be, [3:00:54] the most intrusive search was a title three wiretap. We had to bend over backwards to demonstrate the [3:00:59] need to get the information that the government right now is collecting in mass with no warrant. [3:01:05] It's really astounding to me. And if there's no way to protect abuses against abuses, I wonder what [3:01:12] the solution is. And I'll turn it over. If you could go down in sequence, starting with you, ma'am, [3:01:16] what are ways that we can protect that information in addition to the warrant requirement? Well, [3:01:22] what I was going to say is that the initial scope of surveillance right now is too broad. [3:01:26] Any foreigner can be targeted overseas under this broad definition, extremely broad, of foreign [3:01:32] intelligence. And what that means is foreigners who there's no evidence or reason to believe that [3:01:36] they pose any threat to the United States or their interests, they are subject to surveillance. [3:01:41] What that means for Americans is that the pool of Americans' communications that can be incidentally [3:01:48] collected is enormous. And it's likely to be these innocuous conversations. So refining the foreign [3:01:55] targets at the front end would be an enormous protection for Americans. And that is something I [3:02:02] talk about in my written testimony. Thank you. Briefly. Yeah, I would just say what Liza said, [3:02:07] you know, refining down the scope of surveillance. And then I know Rice already did this with reducing the [3:02:13] number of FBI agents that had access to that database. I would say exploring how we can go [3:02:18] and further reduce that number. Chair Jordan mentioned 10,000 before, like- A shared custody of [3:02:22] it. Yeah, exactly. Something. Yeah. Sure. And I agree with those comments. I would say perhaps we [3:02:30] we establish something like the taint team. You recall how we utilize that where we would not allow those, [3:02:37] you know, access to documents and data that they, that might be violative. Perhaps there's a layer that [3:02:43] could be put in there that would prevent investigators from actually looking at the data until they've [3:02:49] satisfied those protocols. Mr. Chairman, I yield the balance of my time to the representative from [3:02:55] Texas. Thank you all. The gentleman from Texas is recognized for five minutes. Thank you, Mr. Chairman. [3:03:03] And thank you to the witnesses for taking the time to be here and for your expertise. I entirely associate [3:03:09] myself with the great line of questioning for my friend, Mr. Knott in North Carolina. But I want to [3:03:16] begin and just kind of break this down really quickly on a basic level. Ms. Gottine, what is the Section 702 [3:03:22] database? It's not a single database per se. Section 702 enables the government to collect the [3:03:30] communications of certain foreign targets, which is pretty much any foreigner, if the government has a [3:03:35] foreign intelligence purpose, and to collect any information on them, including all of their [3:03:41] communications. And that includes communications with Americans. All of that gets fed into various [3:03:46] different data systems that different agencies have. And how vast are these data systems? In other words, [3:03:52] what types of information is being collected and about whom? Right. So we have very little public [3:03:59] information about that. But in 2011, which I think is the last time this, this particular statistic was reported, [3:04:05] there were 250 million communications, internet communications obtained. And so, and that was when [3:04:11] there were far fewer targets. If you extrapolate with the number of targets we have today, it's about a [3:04:17] billion communications, internet communications collected every year. And because they reside in these systems [3:04:23] for at least five years, several billion communications right now in storage collected under 702. [3:04:29] And what are these communications? Are these calls, texts, emails, location data? [3:04:35] It can be anything. And it doesn't have to be communications. It can be any kind of foreign [3:04:39] intelligence information or information that is qualifies as foreign intelligence. Actually, [3:04:44] it doesn't have to be foreign intelligence. The government just has to have a foreign intelligence [3:04:48] purpose. So it can be any kind of information imaginable. But definitely it includes electronic surveillance, [3:04:57] which is communications. Got it. And who could be tied up in this database? In terms of American [3:05:03] citizens, members of Congress, everyday American citizens, who all could be caught up in this? [3:05:09] Right. So there are almost 300,000 foreign targets. And they do not, as I said before, [3:05:15] they don't have to be suspected of any wrongdoing. And so anybody who has the misfortune of being in [3:05:23] communication with someone who has been designated as one of these targets, their communications will be [3:05:29] swept up. So we have billions of data points from American citizens who have never been convicted of [3:05:34] a crime? Not all of the billions involve Americans. We don't know what proportion involves Americans [3:05:38] because they won't give us an estimate. But a large number. Presumably, because of the prevalence of [3:05:43] international communications. And where does all of this information sit? Different databases and [3:05:47] different agencies. And that's all within the federal government that various actors have access to? Yes. [3:05:54] Who has access to this information? Agents who are working on cases. I mean, I think it's a lot. [3:06:05] I mean, we heard earlier, it's basically 10,000 FBI agents. It's in the FBI. I mean, [3:06:12] leaving aside the NSA and the CIA, it's agents in field offices all around the country. And they don't [3:06:20] need a warrant to access any of it? No. Okay. And what types of protocols or procedures are in [3:06:25] place to help protect privacy of American citizens' data that sounds like all over the, within multiple [3:06:33] agencies of the federal government? Right. So there have been reforms that were put in place through [3:06:39] last year's reauthorization of Section 702 that required things like attorney approval of U.S. person [3:06:46] queries. It required people to keep a written justification of their queries, agents. It required [3:06:54] an audit every six months by the National Security Division of queries. It required supervisory approval [3:07:02] for certain sensitive queries. So there are sort of layers on layers of these sort of internal review [3:07:10] or oversight mechanisms. Many of these were in place well before RISA codified them. And even after [3:07:20] these internal mechanisms had been adopted, we were still seeing abuses. We were seeing searches for [3:07:26] the communications of a U.S. senator, a state senator, a state court judge who had contacted the FBI to [3:07:32] report civil rights violations by a police chief. That was after many of these reforms had been adopted. [3:07:38] So have they helped? Probably. Again, we don't have complete data from this past year, [3:07:44] but they're not enough. So there's millions of potentially more bits of communication information [3:07:51] of American citizens sitting in various government databases that FBI agents have access to without [3:07:58] obtaining a warrant. That seems like a pretty egregious violation of the Fourth Amendment, does it not? [3:08:03] To me, that is a violation right there, even if every single query complies with the internal standards and [3:08:10] procedures that have been adopted. It's not probable cause and a warrant. And therefore, it's a it's a Fourth [3:08:15] Amendment problem. Agreed. Thank you. The gentleman yields back. The gentleman from North Carolina is recognized. [3:08:24] Thank you, Mr. Chairman. And I thank all of you for your time and patience and apologize for being in and [3:08:30] out with three different committees, holding hearings and markups all today. But listen, as a freshman [3:08:36] member of Congress, as I've had the opportunity to listen today, I'm delighted to see that this committee [3:08:42] is united in defending Americans' Fourth Amendment rights. And as we approach [3:08:46] FISA reauthorization, I do think it's important to build upon the progress made last Congress [3:08:51] in protecting Americans from unconstitutional searches. And that starts with addressing some of [3:08:57] the shortfalls of last year's reauthorization and reforming Intelligence and Securing America Act, [3:09:03] also known as RISA. Obviously, my biggest concern is the failure to include a warrant requirement which [3:09:09] failed as an amendment on the House floor. However, I understand there were other provisions in the [3:09:15] bill that ought to be addressed. And one concern I have is the expansion of the definition of [3:09:20] electronic communication service providers. I've been a pastor for 36 years and I often worry about [3:09:27] the ways in which government can be weaponized against churches and other religious institutions. [3:09:32] So, Mr. Scheer, does the expanded electronic communication service provider provision in RISA mean that [3:09:39] even churches and other places of worship could be demanded to facilitate the warrantless surveillance [3:09:46] of their people? I believe so. I mean, if you look at the requirements [3:09:51] for being considered an ECSP, an electronic communication service provider, [3:09:59] most churches are providing Wi-Fi service to their parishioners when they come. My church does, [3:10:04] I suspect your church does. And they do that using communications equipment, right? A Wi-Fi router that [3:10:13] may be installed in the ceiling or somewhere else. So they really fit the definition of an ECSP. [3:10:21] And therefore, at any moment, somebody from the FBI could come along and say, [3:10:26] you know, you have somebody in your congregation that we're suspicious of and we want you to give us [3:10:33] access electronically to everything that they're doing on their phone when they use your Wi-Fi service [3:10:40] during the service. And they could force you as a pastor to do that. And they could also order you that [3:10:48] you can't tell the person about it, right? So they're really dragooning people [3:10:55] into secret surveillance of their parishioners or customers if they're a small business or whatever [3:11:01] it may be. Wow, that's pretty scary. Now, we don't know that it's actually happened. Right. But [3:11:06] but the way the law was drafted, that would be allowed. Exactly. Well, Mr. Chair, your group, [3:11:12] the Project for Privacy and Surveillance Accountability list on its website, quote, solutions to protect [3:11:18] privacy and restore appropriate legal protections. The first solution on this list is requiring annual [3:11:24] audits of surveillance programs. How does oversight of the use of FISA by government agencies currently [3:11:31] operate? Well, the most effective oversight right now is this process of having to have it reauthorized [3:11:39] every couple of years in the in the old days when it was every five years. You know, the agency would [3:11:45] basically do it. The agencies would basically do what they wanted until about a year before the [3:11:49] reauthorization. And then they would try to clean up their act. And then they can't do that anymore. So just [3:11:54] this annual process or this biannual process is useful. And are there specific additional steps [3:12:00] that you believe Congress can take to improve the oversight of the use of FISA by our government [3:12:05] agencies? I think demanding more information from the FBI and the Justice Department about about how [3:12:11] these programs are actually being used and then and then following up when they inevitably don't respond. [3:12:18] Oh, thank you very much for that. Mr. Chernowski, in your written testimony, you mentioned that the [3:12:23] intelligence community has used artificial intelligence to assist in conducting surveillance. [3:12:28] While we all want our intelligence community to be able to conduct proper surveillance of foreign [3:12:32] actors who seek to do us harm, we've got to ensure that developing technology is not used to further [3:12:38] violate our Fourth Amendment. In just the last few seconds we have left, what steps would you say that [3:12:45] Congress can take to ensure law enforcement uses AI in a way that respects Americans' Fourth Amendment [3:12:51] rights? Absolutely. Thank you for the question, Representative. I think that we don't want to [3:12:54] necessarily deter agencies from using new technologies to help them carry out their public mission. [3:12:59] But that being said, as that technology's capacity to go and help them potentially violate people's [3:13:04] rights gets that much greater, it makes it that much more important that we have these guardrails in [3:13:08] place. Having that warrant requirement, as Congressman Knott was talking about before, [3:13:12] the procedural elements of getting that warrant are very important, I think, to carrying out the [3:13:17] mission. But they don't even have to worry about that right now, right? So if we're going to be [3:13:20] leveraging these powerful technologies, let's make sure that we have those processes and procedures in [3:13:25] place to minimize and hopefully, ideally, eliminate the misuses that have been well documented for years. [3:13:30] Well, thank you so much. Thank you all again for your time and your persistence. Thank you, Mr. [3:13:35] Chairman. I yield back. Gentleman yields back. We're almost there. The gentlelady from Texas is [3:13:39] recognized. Thank you so much, Mr. Chairman. I share the concerns of all of my colleagues [3:13:45] that they've mentioned this morning as this hearing has been taking place. The most important part of [3:13:50] making reforms to government surveillance programs is ensuring that Americans' privacy rights are not [3:13:55] being violated. But that requires Congress to do its job and conduct oversight of these executive branch [3:14:03] programs. We all agree that significant reforms are needed for FISA. But over the past year, [3:14:09] Republicans in the House and Senate have allowed this president to be careless with Americans' private [3:14:16] data. This administration can't even prevent American citizens from being arrested in their mass [3:14:21] deportation machine. Why should we believe that they'll be able to prevent Americans' private data [3:14:28] from being unconstitutionally collected throughout government surveillance programs? For FISA to [3:14:34] actually work as intended, federal agencies need enough staff and resources. But most importantly, [3:14:42] they need competent leadership. Unfortunately, this president and his cabinet have shown themselves to [3:14:48] be incapable of understanding the seriousness of handling sensitive information or protecting Americans' [3:14:53] private data. When you have the defense secretary sending classified information to the vice president [3:15:00] through signal, or when extremist billionaires are allowed to have access to Americans' private data, [3:15:07] or when ICE signs contracts to use surveillance technologies against Americans who are critical of [3:15:12] their violent deportation tactics, all of this shows that this administration isn't serious about [3:15:17] following the rule of law or protecting Americans' privacy rights. So we can talk for hours about [3:15:23] legislative reforms needed for FISA. But none of it will matter if Republicans refuse to conduct actual [3:15:29] federal oversight, or if they continue to allow the administration to dismantle federal oversight [3:15:35] offices and positions. Under this administration, numerous federal agencies have fired internal agency [3:15:41] record officers, used auto-delete technology when communicating, and stopped requiring the preservation [3:15:48] of federal records. Ms. Goyton. Okay. We often learn about abuses in federal surveillance programs through [3:15:59] whistleblowers. So can you explain how the destruction of federal records can incentivize agencies to [3:16:05] violate Americans' privacy records? Ms. Goyton. I'm sorry, the destruction of federal records? [3:16:11] Ms. Goyton. Yes. Ms. Goyton. Okay. Ms. Goyton. So can you explain? Ms. Goyton. Oh, okay, okay, sorry. [3:16:16] Ms. Goyton. Yes, my apologies. Yes, I'm following you. Yes, I think there's reasons why there are records retention schedules [3:16:24] in the law, and it's because this is the official record of official action. It is needed for all kinds of [3:16:30] purposes. It's needed for continuity over time with other administrations. At times it can be needed for [3:16:38] litigation, but it certainly can be important to reveal misconducts, fraud, waste, abuse, whether through [3:16:49] internal oversight channels, whether through oversight by Congress or the courts, or through whistleblowers. [3:16:57] So, yes, it's important to preserve federal records in accordance with the preservation schedules. [3:17:05] Thank you so much. How have unchecked surveillance powers historically been used against marginalized [3:17:12] groups? Ms. Oh, I mean, it is such a long story, and it's not just in this country, right? It's around the [3:17:20] world. Surveillance is a tool by which governments have oppressed marginalized communities of all kinds. [3:17:33] In this country, during the Cold War, there was widespread spying by the FBI, the CIA, and NSA, [3:17:44] and their predecessor names for them. And that surveillance was targeted against anti-war protesters. [3:17:52] It was targeted against social justice movements. It was targeted against Martin Luther King Jr., [3:17:59] and it was targeted against political opponents, whether it was the president or people high up in the [3:18:06] military administrations. That is a feature of this country's history that actually led Congress to pass [3:18:16] FISA to get some kind of control over foreign intelligence surveillance. A lot of these abuses were [3:18:22] in the name of foreign intelligence. These were purported attempts to find if there was foreign influence [3:18:28] over certain movements. So, and it led to a number of other reforms by Congress. The problem is that [3:18:39] since then, and especially since 9-11, some of the protections that were built into the law, including FISA, [3:18:47] that were meant to deter this kind of spying on, based on politics, race, ideology, religion, [3:18:55] have been stripped out. And particularly after 9-11, they were stripped out sort of very, very quickly, [3:19:00] based on a sort of misguided sense that that was the way that we were going to stop a future terrorist [3:19:07] attack. Thank you so much. And as a result, we're vulnerable once again. I'm sorry, I took so much time. [3:19:11] No, no, no, that's okay. Thank you so much. I appreciate you. And with that, Mr. Chair, I will yield. [3:19:16] General Lee yields back one. Thank you all. Seems to me everyone is probably in this giant database, [3:19:25] wherever it may reside. We have tried reform after reform. And while helpful, it never seems to [3:19:33] fully correct the problem. The deterrence, the penalties probably aren't there for those who [3:19:39] continue to abuse it as evidenced by the one guy who actually, on the Title I side of things, [3:19:43] lied to the FISA court, changed the document, back practicing law, got his law license and never, [3:19:50] never really got any kind of real sentence. So the only answer seems to me is what we've been spending [3:19:55] three and a half hours talking about is to get the warrant requirement in there. So we will continue [3:20:00] to do that, continue to work on that, hopefully get it get it done. But you guys have been a tremendous [3:20:05] panel. We appreciate you appreciate you being here and the excellent testimony that you gave. [3:20:10] And that concludes today's hearing. We want to thank all our witnesses. Again, without objection, [3:20:15] all members will have five legislators of days to submit additional written questions for the [3:20:18] witnesses or additional materials for the record without objection. The hearing is adjourned.