▶ 0:21:00Committee will come to order. Without objection, the chair is recognized or excuse me, authorized to declare a recess at any time. We welcome everyone to today's hearing on the Foreign Intelligence Surveillance Act. Um the chair recognizes the gentleman from Texas, Mr. Nells, to lead us in the pledge of allegiance. Would all stand.
▶ 0:21:22Algiance to the flag of the United States of America and to the republic for it stands one nation indivisible with liberty and justice for
▶ 0:21:35Thank the gentleman for uh leading us and sorry to hear his recent announcement. He's not going to be running for re-election but glad to have him with us here today. Um, we'll start with opening statements and we'll get right to our witnesses and to uh today's uh hearing. February 2nd, 2021, the FBI was given, I believe, I think it was just then when we were in the minority, just the minority uh staff and members, a briefing on the 702 program.
▶ 0:22:00And I remember that in that briefing, I can't remember who asked the question, but one of us asked the question, how many agents, how many people at the FBI have access to the 702 data, the data that's collected in this database, surveilling foreigners, but all kinds of people get swept up. All kinds of Americans, US persons get swept up in this. How many agents, how many people at the FBI can query, which I always point out is a fancy name for search. how many people can search this data.
▶ 0:22:31Their answer was 10,000 people. I didn't know what we didn't know what answer to expect, but we didn't quite expect that that big of a number. Um I mean, if they'd have told us three people, I thought, well, that seems fairly small. If they'd have told us any number over a thousand, I would have said that's crazy. But they told us 10,000. We then said, how many queries? We found out, we had the IG do a do a study and investigation.
▶ 0:22:56How many queries are these 10,000 agent potentially 10,000 agents doing who have access to this information? How many are they doing on US persons? And that answer from the IG was 3 3 million in one calendar year 2021.
▶ 0:23:15The IG also told us that 278,000 of those searches on US persons were most definitely done in an improper way. And what that meant by improper is they didn't follow the rules Congress had set. They didn't follow the FBI rules. So they didn't follow our rules and they didn't even follow their own rules when they were doing these unbelievable millions of searches.
▶ 0:23:39278,000 definitely done improperly and um the potential of 10,000 people at the FBI to do those very searches. And who were they searching? What who are some of the people they searched? Well, the IG told us this as well. Journalists, people a part of Black Lives Matter, members of Congress, 19,000 political donors, exgirlfriends.
▶ 0:24:05I mean, you could it was as obnoxious as you could you can imagine. And again, we're just now we're just talking about the 702. We're not even getting into title one. We all know the problems with title one. Some of the things we learned a few years ago relative to surveilling a presidential campaign. We all know about that. We're just talking about 702. But all this is coming up, as everyone knows, for reauthorization, 702 program for reauthorization, but we can address the title one as well. All that's coming due here in just four months.
▶ 0:24:34And so we felt it was important to have this hearing where we begin to talk about some of the things that still need to be done. I want to back up a second and say this. Last Congress, I do think the good work of this committee um some of our members working closely with uh in a working group with members of the House Intelligence Committee. I do think we had some good reforms that got put into the bill last Congress and a lot of that's due to the work of our witnesses here and groups that they represent and we appreciate that. We codified procedures to reduce improper queries.
▶ 0:25:05Last year the number was down to 9,000 queries on US persons. Um so important changes that were made to the 702 program safeguards protecting Americans liberties and of course some changes also made to the title one section of the FISA law as well. Um I know our ranking member knows this. I know every member of this committee knows this.
▶ 0:25:28for the Judiciary Committee where we're supposed to be focused on protecting the uh the Bill of Rights, and the liberties that we enjoy as Americans. We think it's important as we move forward that we do just that. And part of that is if you're going to search this database and you're going to search using an American's name, phone number, email address, we believe you should go to a separate and equal branch of government and get a warrant to do so. We think that's fundamental.
▶ 0:25:58Uh, everyone knows that last Congress we were close to making that happen. Close as you can get without making it there across 212 to 212. I'll never forget that vote. But, uh, we want to, uh, hopefully get that included in the reforms that we put together as we move forward over this next four months. But to start that effort, we've got some great witnesses here who will look forward to hearing. But I want to yield back now and let the ranking member have his opening statement and then we'll get right to our great panel. With that, I yield to the gentleman from Maryland.
▶ 0:26:29Thank you very much, Mr. Chairman, and uh thanks to our witnesses for joining us today. Section 702 expires April 19th next year. This gives us four months to put together a bill that prioritizes uh protecting Americans fundamental constitutional rights while preserving a program that advances national security.
▶ 0:26:50Over the years, FISA has remained a subject of bipartisan collaboration on this committee, and I really want to thank Chairman Jordan and Chairman Biggs for working with all of the members of the committee to protect American civil liberties. When Congress reauthorized section 702 last Congress, we gave the executive branch two years to show that it could protect civil liberties without the need for greater judicial oversight.
▶ 0:27:14We said that we would rely on the FBI's promise that the modest changes like requiring approvals for US person queries in the Reforming Intelligence and Securing America Act or RHSA would be enough to prevent greater violations of civil liberties. And we promised in turn that we would keep a close eye on how surveillance authorities are used during that time. This 2-year experiment is nearly complete now and the results are alarming.
▶ 0:27:40We have witnessed an attack on the FBI's internal guardrails against abuse of section 702 authorities and an unprecedented increase in government surveillance and an alarming coziness between the government and big tech. All of which puts Americans data and civil liberties in jeopardy. We must strengthen federal law to protect American privacy and liberty. And Congress can start with FISA section 702.
▶ 0:28:06As everybody in the room knows, 702 was never meant to apply to American citizens. Under the law, the government can only com collect communications from targets who meet two criteria. One, they've got to be non US persons. And two, they've got to be located overseas. Americans and people on US soil are protected by the Fourth Amendment that prohibits unreasonable searches and seizures, guarantees the warrant requirement.
▶ 0:28:30Um, and if law enforcement wants to look at American citizens emails, they've got to get a warrant to do it. Despite all these protections, because section 702 enables the intelligence community to ingest an incredible amount of data, American citizens communications are often swept up in 702 collection. When that happens, those records end up in the FBI's massive database.
▶ 0:28:55And under current law, the FBI can search that database for US person identifiers like Americans names and street addresses for evidence of potential crimes or threats to national security. And as the chairman says, uh 10,000 people have access to that. Administrations of both parties have repeatedly abused this trove of US person data.
▶ 0:29:19Recent audits showed that FBI has searched the 702 database um for candidates for federal office, Black Lives Matter protesters and federal contractors among other Americans who ought to be protected. Two years since we enacted RESA, however you might have felt about the modest changes in that bill, the landscape has changed.
▶ 0:29:39For years, the leaders of this committee have warned of how executive branch surveillance powers could be abused by administrations that don't show sufficient care for the protection of civil liberties and who use cutting edge technology to spy on Americans and who ignore basic principles of due process and constitutional freedom to achieve their own ends. In 2025, we know that we were right to worry. Here's just one example.
▶ 0:30:05I've been concerned for years about the US government purchasing and compiling data about our own people. That problem has been compounded in this administration, which is actively building profiles on American citizens by combining data traditionally siloed in separate agencies, your tax returns, your health records, any interactions with uh police, with information purchased from tech companies.
▶ 0:30:30The administration is breaking down the very few guardrails that still exist on protecting our privacy, enabling the executive branch to track the movements of dissenters and supporters alike. So, um, we have a lot to be concerned about at this point. I'm glad we're proceeding in a bipartisan way for the legislative defense of essential constitutional civil liberties.
▶ 0:30:53I look forward to hearing from all of our witnesses today on how we can properly protect American civil freedom in uh this perilous era. And I yield back to you, Mr. Chairman. The balance of my time. I
▶ 0:31:04I thank the gentleman for a statement. Without objection, all of the opening statements will be included in the record. We will introduce today's witnesses. Mr. Brett Tolman is the executive director of Bright on Crime, a nonprofit organization that advocates on criminal justice issues. He's testified here many times. previously served as the US attorney for the district of Utah and is the chief counsel for the crime and terrorism uh for the uh judiciary senate judiciary committee. Uh Mr.
▶ 0:31:25Jean Sher is the general counsel for the project for privacy and surveillance accountability a nonprofit organization that advocates for greater protections for privacy civil liberties and government surveillance programs. He is also the managing partner of Sher Jaffy LLP where he focuses on civil appellet matters. Mr. Dr. James Chernowski is the head of uh emerging technology policy at the consumer choice center. He previously was a senior policy analyst at uh Americans for Prosperity. His research focuses on the issues surrounding technology and innovation.
▶ 0:31:56And Miss Elizabeth Guiton is the senior director of the Brennan Center's liberty and national security program. She previously served as senate staffer with the department and with the department of justice. Her work focuses on presidential emergency powers, government surveillance, and government secrecy. Uh I know many of you have been here before and we we appreciate your the work you've done for our country and and for you being with us today. We welcome all of you and we will begin by swearing you in. Would you please uh stand and raise your right hand?
▶ 0:32:25Do you swear affirm under penalty of perjury that the testimony you're about to give is true and correct to the best of your knowledge, information, and belief. So help you God. Let the record reflect that witnesses have answered in the affirmative. Uh thank you. You can be seated, of course. And please know, you've been through this before, that your written testimony will be entered into the record in its entirety. Um, we ask that you kind of summarize that in five minutes, and we'll just go right down the line like like you were introduced. Um, Mr. Tolman, you may
▶ 0:32:54Thank you, Chairman Jordan, Ranking Member Rascin, and distinguished members of the committee. Thank you for the opportunity to testify today. Oversight of the Foreign Intelligence Surveillance Act is a debate that goes to the heart of what it means to be an American. Commitment to the rule of law, the constitutional rights we hold dear, and the principle of limited government. FISA is in desperate need of reforms. Or rather, our country desperately needs to reform FISA.
▶ 0:33:22For decades and with increasing regularity, it has been the government's permission slip for warrantless spying on Americans. This is despite the fourth amendment. To be sure, FISA serves an important national security interest. I would know I helped write some of the FISA laws when I worked as chief counsel over crime and terrorism in the Senate Judiciary Committee. I and I later prosecuted national security cases as a federal prosecutor.
▶ 0:33:47These credentials, however, don't contradict the harsh truth that the FISA system is flawed. It enables the unconstitutional government surveillance and doesn't protect our civil liberties. Presently, nowhere is this more clear than with section 702. Section 702 was sold to Congress as a vital tool to target foreign adversaries.
▶ 0:34:08We were given highstake assurances from D by DOJ and FBI leaders, namely James Comey and Robert Mhler, that it would not be used improperly against honest Americans. I was in the room when they represented it would not be abused. That was a lie. FISA abuse is not speculative. There is clear record of systemic failure, constitutional betrayal, and the disregard for the rule of law, confirmed by the FISA court itself and government watchdogs.
▶ 0:34:37For instance, the Crossfire Hurricane investigation used flawed information and deceit to justify FISA surveillance of Carter Page proves that the the vulnerability the system is to political weaponization. Arctic Frost investigation, which targeted hundreds of American citizens, including sitting Republican lawmakers, highlights how domestic political matters, are swept up by FISA.
▶ 0:35:01The FBI has carried out warrantless searches of section 702 database involving American lawmakers, journalists, political donors, civil rights protesters. 1,600 searches were conducted for Americans who were at a specific airport on a particular day. 2,000 backdoor searches were done on athletes at a sporting NSA analysts searched for communications of prospective tenant and rental property that they owned personally and for people met through online dating sites.
▶ 0:35:31This is not national security intelligence gathering. It is domestic spying. With FISA set for reauthorization in April, Congress faces an important question. Will we limit government or will we license its continued Fourth Amendment violations? Internal policy changes by the offending agencies are not enough. FISA must be rebuilt and reformed. Section 702, for example, it is necessary that Congress rewrites the government.
▶ 0:35:57It is necessary that the Congress requires the government to obtain a probable cause warrant if a search is done on a US citizen in a domestic investigation. If this warrant requirement had been in place, the vast domestic surveillance of Americans under Arctic frost, for example, would have required judicial review and likely would not have occurred.
▶ 0:36:16Section 704, which lets the government surveil Americans abroad, believed to be a foreign asset, would benefit from heightened judicial review, such as declassified and released court opinions and the use of third-party experts who can review section 704 applications. Section 705B can easily bypass the requirement for comprehensive judicial review, allowing the government to move to a more intrusive form of surveillance with less scrutiny than a new probable cause application would require.
▶ 0:36:45Reforms should center on the consistent probable cause decisions. Lastly, FISA courts need structural reforms such as penalties for omissions or misrepresentations like those used to target Carter Page. The Fisk should also incorporate thirdparty advocates to balance the weighted government proceeding and declassified Fisk rulings. In conclusion, Congress must not be complicit in facilitating a surveillance state. It must either mandate reforms or allow authorities like section 702 to expire.
▶ 0:37:14I applaud this committee and its leadership for its thoughtful review, and I stand ready to work with you to craft reforms that are are conservative in principle, effective in practice, and constitutional in design. Thank you, Mr.
▶ 0:37:25Thank you. Mr. Chair, you're recognized for five minutes.
▶ 0:37:29Well, thank you, Chairman Gordon and Ranking Member Rascin and members of the committee. Thank you for the opportunity to testify at this hearing, which is particularly timely as we prepare to celebrate the Declaration of Independence next year.
▶ 0:37:45Um, in considering the reauthorization of FISA section 702, which my organization supports, the overriding question faced by this body is the extent to which it will allow the intelligence community to continue engaging in warrantless surveillance of Americans and without, as the declaration put it, the consent of the governed uh through its representatives in this body or otherwise.
▶ 0:38:11And as you know, absent consent or truly exigent circumstances, the Fourth Amendment generally condemns warrantless searches. And while last year's reauthorization was in many respects a good first step toward needed reform, at least four important issues remain unresolved. Number one, section 02 still 702 still allows the government to search Americans communications without a warrant through so-called backdoor searches.
▶ 0:38:41Number two, federal agencies routinely purchase and review our geoloccation, internet search history, and other sensitive personal information from data brokers, all without a warrant and without allowing providers even to inform us of those searches.
▶ 0:38:58Three, a newly expanded definition of electronic communication service provider under last year's reauthorization allows the NSA to force countless small businesses and other organizations to assist in warrantless surveillance. It even includes house houses of worship, thus ensuring that even atheists will now have to agree that someone is listening when we pray.
▶ 0:39:27Um there's still no uh provision number four there's still no provision requiring the FISA court to include a Miki experts who represent the privacy interests of all Americans in title one surveillance proceedings involving members of Congress uh political campaigns and other sensitive targets. So how then should Congress approach the the upcoming reauthorization?
▶ 0:39:52First, we believe Congress should institute a warrant requirement with appropriate exceptions before the FBI or other agencies can search and review Americans communications collected under 702. Just last year, as the chairman mentioned, in a near this committee in a near unanimous bipartisan show of strength, uh this committee voted to close that loophole and it should do so again and this time insisting on closing that loophole as a condition of reauthor reauthorizing 702.
▶ 0:40:22Second, uh it is critical for Congress to rein in the federal government's ever growing purchase and warrantless uh searches of Americans geoloccation and other sensitive personal data um purchased from data brokers. I applaud the committee for its impressive bipartisan work over the last several years to address this issue. But this next reauthorization is the time to insist that this data broker loophole also be closed.
▶ 0:40:49Third, the definition of electronic communication service provider under FISA should be narrowed to exclude houses of worship and countless small businesses and other organizations that were unfortunately included in last year's uh reauthorization. Uh there's no justification for secretly coercing these entities to assist the NSA and the FBI in conducting surveillance.
▶ 0:41:13Fourth, Congress should require AMA's participation in politically sensitive FISA cases by finally enacting a robust AMAS provision uh of the sort that passed the Senate uh in 2020 with 77 votes. Uh nearly a decade after the Trump campaign and transition were illegally surveiled, this key reform which would have prevented many of the abuses the that occurred in 2016 is still not in place.
▶ 0:41:40And I have seen the impact of that outrageous abuse in my separate work representing Carter Page uh in challenging that abuse in court. And once again, I applaud this committee for including a robust amas process in the reform legislation last year. And I urge you to do so again also as a condition of the new 702 reauthorization.
▶ 0:42:02In short, with every passing year, it's harder to square our emerging surveillance state with the consent of the governed articulated in the Declaration of Independence and embodied in your article of the Constitution, Article One. But with bipartisan cooperation that has come to define this committee's work in this important area, uh, I'm confident that you can write the ship.
▶ 0:42:27Thank you, Mr. Chair. Um, Mr. Chernowski, you are recognized for five
▶ 0:42:31Thank you, Mr. Chairman, Ranking Member Rascin, and members of the Judiciary Committee for holding this critical hearing on the Foreign Intelligence Surveillance Act. Our founding fathers enshrined individual liberty and privacy as bedrock ideals of our Constitution. Yet over the years, we've seen a surveillance state that only continues to expand, operating with limited accountability, all under the guise of national security. And national security is vital. And few would deny the many dangers facing our great nation today.
▶ 0:42:58I would know firsthand growing up in Queens, New York, and experiencing the terrible events and aftermath of 9/11. A tragic day that showed us the cost of being unprepared, but also demonstrated just how quickly extraordinary powers, once granted, can become normalized. And history warns us of the dangers of unchecked government power.
▶ 0:43:16Time and time again, we have caught the intelligence community raiding the civil liberties fridge, taking liberties that were supposed to be off limits, apologizing barely when they're caught, if we're lucky, promising to never do it again, and then returning to business as usual. It would be humorous if the consequences to Americans rights were not so serious. Too often, agencies appear more concerned with managing bad headlines than safeguarding the privacy and rights of the people they were created to serve and protect.
▶ 0:43:44This repeated cycle of violations has resulted in an erosion of public trust in the very institutions charged with keeping Americans safe. In December of 2024, CNN's Harry Enon cited cited Gallup polling showing that support for the FBI in particular was at an all-time low with just 41% of respondents saying that the agency was doing either an excellent or great job. That represented an 18% drop in just 10 years. That is a damning indictment against the key agency responsible for keeping Americans safe.
▶ 0:44:15An intelligence apparatus that lacks the public trust becomes less effective, not more. Americans are less likely to cooperate with, have support for, or believe in institutions that they fear. And that is precisely why reforms are not optional. They are urgently needed. Congress has the responsibility to restore the balance. And when it comes to addressing the litany of issues under FISA, there are many out there uh in terms of solutions, but here are four key reforms that Congress should prioritize.
▶ 0:44:45First, close the backdoor search loophole that allows for warrantless searches of Americans communications. Second, close the data broker loophole, which lets agencies buy their way out of constitutional constraint. Third, strengthen third-party oversight at the FISA court, improving due process and casting sunlight on decisions too often made in darkness and secrecy. And lastly, fix the overly expansive definition of an electronic communication service provider.
▶ 0:45:13A definition that dangerously brought in the kinds of entities that can be deputized into the surveillance apparatus, a recent issue stemming from FISA's reauthorization under the Reforming Intelligence and Securing America Act, also known as RHS. These reforms that I highlighted here today will not end surveillance, nor will they prevent legitimate national security operations. The country will not go dark, nor will it find itself defenseless against foreign threats.
▶ 0:45:38But what they will do is ensure that Americans rights are not flagrantly disregarded in the process of carrying out those duties. The Constitution is not simply a piece of parchment to be admired. This is a moment to prove that America's strength lies not only in its defenses, but in its devotion to liberty. Let us stand firm so that freedom is not just promised but practiced. As the committee with primary jurisdiction, you have the power to shape policies that balance security and freedom.
▶ 0:46:06And by advancing meaningful reforms, you can restore public trust, safeguard rights, and ensure that our intelligence agencies serve the American people, not surveil them. I thank you for the opportunity to share our thoughts with you today. I look forward to the conversation and to answering your questions. Uh, thank you Mr. Chowski, Miss Guyine, you are recognized for five minutes.
▶ 0:46:29Chairman Jordan, Ranking Member Rascin, and members of the committee, thank you for this opportunity to testify. Congress conceived and enacted section 702 as a foreign terrorist surveillance program. But over the last 17 years, it's become something very different. Today, section 702 is a rich source of warrantless access to Americans communications. It is long past time for Congress to put an end to this betrayal of Americans trust.
▶ 0:46:56Section 702 authorizes the government to target any foreigner overseas for foreign intelligence purposes and to collect all of their communications without an individualized court order. This surveillance inevitably sweeps in Americans communications in large amounts because Americans communicate with foreigners and because those foreigners need not be suspected of any wrongdoing.
▶ 0:47:19These communications can and do include purely innocent conversations between Americans and their friends, family members, and colleagues overseas, a point that was emphasized by the Privacy and Civil Liberties Oversight Board in its 2023 report. Now, if the government's intent were to spy on those Americans, it would have to get a probable cause order, a warrant in a criminal investigation or a FISA title one order in a foreign intelligence investigation.
▶ 0:47:50The government gets around this requirement by certifying to the FISA court that it is not using section 702 as a way to access the communications of particular known Americans. And yet once the data is in their hands, all of the agencies that receive section 702 data routinely run warrantless electronic searches for the communications of particular known Americans.
▶ 0:48:17This is a bait and switch that drives a massive hole through the Fourth Amendment and FISA. In 2023, the last year for which we have complete data, the FBI conducted more than 57,000 of these backdoor searches. Congress and the FISA court have attempted to put some limits on this practice, but the FBI has engaged in persistent and widespread violations of those limits.
▶ 0:48:43According to the FISA court, those violations have included searches for the communications of members of Congress and congressional staffers, protesters from across the political spectrum, multiple US government officials, journalists, and political commentators, and more than 19,000 donors to a congressional campaign.
▶ 0:49:03In April of last year, Congress passed the Reforming Intelligence and Securing America Act, uh, which sought to rein in the FBI's backdoor searches, largely by bolstering internal oversight and reporting mechanisms. We don't know what the impact of these reforms has been, however, because the FBI failed to track all of its queries as required by law.
▶ 0:49:28Specifically, last August, the Justice Department discovered that the FBI was using a tool to search for the communications of specific individuals, including US persons, from among a particular target's communications. The FBI did not count these as queries, and so it didn't follow any of the procedures required by law, such as obtaining attorney approval or providing a written justification for US person queries.
▶ 0:49:55The government told the FISA court that it lacked the information to determine whether there was a sufficient legal basis for these queries. As a result, we have no idea how many queries the FBI conducted in 2024. The number that appears in the annual statistical report is 5,518. That's the number of known queries, the queries that the FBI actually counted.
▶ 0:50:20The total number of queries remains unknown, as does the FBI's compliance rate. This is important information, and Congress should have it before it reauthorizes section 702. But let me be clear, even if the FBI conducted only 5,000 warrantless searches for Americans emails, text messages, and phone calls last year, that would be 5,000 too many.
▶ 0:50:47Warrantless access to Americans private communications is an invitation to government overreach and abuse under any All of the internal oversight in the world cannot substitute for the balance that the framer struck in the Fourth Amendment. As Justice Roberts said in a 2014 case about the privacy of our cell phones, the founders did not fight a revolution to gain the right to government agency protocols.
▶ 0:51:16Congress must do now what it should have done years ago. Require the government to get a warrant or a FISA title one order before accessing Americans communications obtained under section 702. Thank you and I look forward to your questions.
▶ 0:51:31Uh thank you Miss Guine. All of you well done. Um without objection the following documents will be included in the record. A letter from the reform government surveillance about the need to reform the Foreign Intelligence Surveillance Act. a letter from a coalition of 25 organizations about the need to reform Foreign Intelligence Surveillance Act and a statement for the record on the topic of today's hearing from the Electronic Frontier Foundation. Uh we will start with the gentle lady uh from Florida who was part of our working group uh last year on this issue. Uh the the gentle lady, Miss Lee, is recognized from uh from Florida.
▶ 0:52:02Thank you, Mr. Chairman, for holding this hearing and to our witnesses for appearing with us here this morning. Last Congress, I was proud to sponsor the Reforming Intelligence and Securing America Act, or RISA, which was signed into law. RISA included sweeping reforms designed to bring meaningful changes to surveillance operations and prevent the past abuses of FISA from occurring again.
▶ 0:52:29As section 702 is now up for reauthorization, I'm committed to working with this committee to pass a bill that equips our intelligence community with the tools that they need to protect our national security against threats while continuing to protect the civil liberties of Americans. There are two facts that should be evident from today's hearing. First, serious failures occurred under prior FISA and section 702 authorities, particularly in the FBI's queries of US person data.
▶ 0:52:58Second, Congress acted, reforms were imposed, and those reforms are now demonstrably working. The Department of Justice Inspector General has now completed the statutoily required postreform review under RISA. That report confirms that the FBI did for years run non-compliant US person queries, that the Foreign Intelligence Surveillance Court found those practices inconsistent with both statutory law and the Constitution, and that this problem persisted well into the 2020s.
▶ 0:53:27Those facts are gravely serious, demanded correction, and did not resolve themselves. But the IG also found that reforms from RISA have been implemented, including mandatory pre-approval by supervisors or attorneys for US person queries, mandatory DOJ audits of every one of those queries, written factual justifications, escalating discipline for negligent, reckless, and intentional violations, and many others.
▶ 0:53:54Most importantly, the data now shows a dramatic reduction in non-compliant queries. The IG found that widespread non-compliant querying no longer appears to be occurring and that the remaining errors are overwhelmingly administrative, typographical, as opposed to structural or abusive. None of this means that oversight is finished. The IG explicitly noted that its postreform review covers only one year and that continued monitoring is essential.
▶ 0:54:21Today, we must continue to assess what further action is needed while recognizing the purpose of FISA, the FISK, and 702. Holding the FBI accountable does not mean stripping the FBI of targeted vital tools that are needed to protect the American people. We did not respond to the past failures by abandoning national security. We responded by tightening the law, raising the standards, hardwiring accountability, and making violations visible and punishable. And that is what we must do.
▶ 0:54:51Again, Mr. Sher, as you know, Ryzen now requires the FBI to obtain supervisory or legal approval before conducting US person query of section 702 acquired information except when there's a reasonable belief that the query could help mitigate or prevent threat to life or serialist bodily harm. Why was that additional layer of oversight important?
▶ 0:55:21It it was a good change and it certainly reduces the number of of of abusive instances of surveillance and examining uh 702 data that we saw in the past as as we've all discussed there. There are several other things that need to be done but that was a very good and wise change in my view. And to what extent has the increased auditing and mandatory reporting uh in your perspective changed personnel behavior? Are there measurable improvements with this compliance?
▶ 0:55:50And tell us specifically what additional requirements you believe we need to
▶ 0:55:56Well, there there do appear to be uh improvements. However, as Miss Goyitine mentioned, uh because the FBI has apparently changed what it considers to be a query, it's not entirely clear the extent to which the number of queries has actually been reduced. Um and in in terms of additional reforms, I I would just uh I would just reiterate the four that I mentioned in my um in my testimony, closing the data broker loophole entirely.
▶ 0:56:25uh it's re you know especially if the number of queries is relatively small there's no longer any argument that it would be a huge administrative burden uh to get a warrant uh before before the database is searched on Americans right um and and and that's something that prosecutors do all the time they have they have wellestablished mechanisms whereby they go to a they go to a magistrate in this case it would be the fisk but they they send them an email they outline why they think a warrant is warranted
▶ 0:56:56and they get and they typically get a a warrant very quickly in response. It's it it's not it's not a huge burden of the sort that would be suggested if you looked at the Carter Page warrant applications for example that the the Carter Page warrant applications were very extensive but they are not typical of warrant applications in general. Um typically getting a warrant is a very a very simple and quick process when a prosecutor has a good reason for getting
▶ 0:57:23Thank you, Mr. Chairman. and I yield
▶ 0:57:24Gentle lady yields back. Gentleman from Maryland is recognized.
▶ 0:57:28Thank you, Mr. Chairman. Um, thanks to all the witnesses for your testimony. Miss Gotin, let me start with you. Um, the Lord Actton famously said that power corrupts. Absolute power corrupts. Absolutely.
▶ 0:57:43There was a Supreme Court decision called Smith versus Maryland 50 years ago where about the pen register where Marshall and Brennan said that unregulated government monitoring of people's private communications is most for people who have nothing to hide, people who've not done anything illicit. And I wonder if you would maybe reflect for a moment on those two thoughts in the policy choice that confronts us
▶ 0:58:10Yeah, absolutely. I think that's true. there there is a sense um and and we hear it sometimes from those who actually oppose getting a warrant requirement um that if people haven't done anything wrong then they don't need uh they shouldn't have any need for the protection of a warrant by this view warrants protect the guilty not the innocent that makes no sense right I mean warrants are there to make sure that people who are in fact innocent are not subject to these searches and that the government has to have probable cause that someone has engaged in wrongdoing in order to
▶ 0:58:40access their private communications. There are all kinds of ways that uh access to private communications can be used against a person uh even if they show no evidence of crime. Uh and we see this in countries that don't have fourth amendment protections or the constitutional protections we have in this country.
▶ 0:58:59Uh, you know, one of the primary features of authoritarian regimes is that people are tracked um and that their communications are monitored and this is used to keep them in line and prevent political disscent. That is not America. That should not be America. And the Fourth Amendment is an absolutely critical safeguard against that kind of overreach.
▶ 0:59:19that I'm troubled by the government's contracts with Palunteer to create software that allows the government to assemble and combine previously siloed information in particular departments with data purchased from data brokers. Could you explain to the committee how purchased data can be used to compile comprehensive profiles of American
▶ 0:59:43Sure. The word silo sounds very negative. Uh but in fact there's a good reason why data that is collected for certain purposes isn't necessarily widely shared. Often if there's a major privacy intrusion involved in collecting the data, what justifies that privacy intrusion is the specific use to which the data is being put. Uh that same balance of factors doesn't apply in every situation and so it doesn't make sense to distribute the data more widely where the privacy intrusion is greater and the justification might be lesser.
▶ 1:00:13So you have different parts of the government that are obtaining very sensitive data. Um sometimes from data often from from data brokers. This is often data that is so sensitive that it would need a warrant or a subpoena or a court order to acquire if the government wasn't able to purchase it from a data broker. And this sensitive information may be used initially um for very specific purposes.
▶ 1:00:35If they are all all these pieces of data are shared across the government and put together, it is possible, it could be possible to build uh dossas on Americans that would give uh a startlingly complete picture of their private lives, their associations, their habits, their beliefs. This is information that our government in a free society should not have access to unless there is a specific justification for a specific purpose. And that's what the warrant requirement is all about. Exactly.
▶ 1:01:06So, um, like a lot of members of this committee on both sides of the aisle, I'm a former prosecutor and I perhaps Mr. Tolman, you could address this because you were the US attorney in Utah as I understand it. Um, uh, when I first heard about this stuff, I confessed that my reaction was, um, well, prosecutors often times come into possession of information um, without a search warrant.
▶ 1:01:32For example, the the Kimmel search, a search incident to arrest will produce evidence of another crime, the Belton search with automobile stops. In some sense, that becomes the bread and butter of what a lot of prosecutors do. And so, I thought to myself, well, if this information just accidentally, inadvertently comes into the possession of the government, then what's the big deal of letting the government use it?
▶ 1:01:55And I wonder why as a former prosecutor you would say this really is a completely different matter and that's comparing apples and oranges.
▶ 1:02:05Yeah, I I appreciate the question because I think we think of it wrong when we assess um the use of extraordinary tools to gather intelligence in this country. We're not looking at it through the criminal justice system lens. We're looking at it through national security and there's the mentality of national security review is that the fourth amendment does not apply.
▶ 1:02:31So once you once you cross that that line, you no longer are concerned about whether or not you're following certain constitutional protections and that should scare American citizens that we have people that will exercise that power who have crossed that line and are no longer thinking of it in terms of what they traditionally would as a prosecutor. That's great.
▶ 1:02:53Thank you, Mr. Chairman.
▶ 1:02:54You bet. Gentleman from Arizona is recognized, Mr. Bigs.
▶ 1:02:56Thank you, Mr. Chairman. It's good to see all of you again, and hopefully we have an even better outcome this this coming year than we had last time. So, let's just talk about this for a second. Is is the idea that an executive agency is going to have a manager, a supervisor review to determine whether you you should actually have access to sensitive data?
▶ 1:03:25Is that's is that the same thing as a an independent judicial body requiring you to produce probable cause in order to get a warrant to search for that same sensitive data? Just each one of you. What is that the same thing?
▶ 1:03:42Not at all. Yeah, it it it may be it may be useful, but but the process the Constitution puts in place for dealing with those kinds of controversies is that the article 3 branch serves as an independent check on the on on the executive branch in order to ensure that Americans privacy is protected and we shouldn't we we shouldn't abandon that
▶ 1:04:05Others quickly
▶ 1:04:06I I would quickly say where you stand on an issue depends on where you sit. I rarely had any supervisor that pushed back against any request I had to approach either the grand jury or a judge for a warrant.
▶ 1:04:21Yeah. I I agree with what's been said. I think that simply having a manager in place doesn't go and and have the same kind of protection as a as a judge
▶ 1:04:28is a great thing.
▶ 1:04:28I I couldn't agree more. And also, it's a different standard. Probable cause is a very different standard from reasonably likely to produce foreign
▶ 1:04:35Yeah. It's not only a different standard, it's a different entity that the Constitution has established to protect the rights of all people guilty and innocent. It protects everybody's rights. But when we say, "Okay, we're going to allow the FBI supervisor. We're going to trust the FBI Hey, have they been approved by either the voter or by the House of No.
▶ 1:05:03they they've been hired by somebody, they're working in the same agency ostensively with the same objective rather than the objective of protecting rights. So that's an interesting dichotomy there. Uh the next thing is when we get to uh this notion of the fourth amendment not for sale, have you seen instances where the federal government or state or local government has attempted to go around constitutional protections by buying data
▶ 1:05:33from private entities and then circumventing the fourth amendment requirement. Miss Gothin,
▶ 1:05:39it happens constantly. The Supreme Court has held that cell phone location information, historical cell phone location information uh in sign in sufficient amounts, a week's worth of historical data is uh protected by the fourth amendment and that the government actually needs a warrant uh to compel production of it.
▶ 1:05:56Uh and yet multiple federal agencies uh the FBI, DA, DEA, Secret Service, different components of DHS, Department of Defense, IRS, I I think mostly all of them are buying access to vast databases of Americans cell phone location information.
▶ 1:06:17So um we also know that the definition of query is now under um dispute apparently. Um can you expand on that Mr. Chair? You touched on that. Can you expand on that just for a sec?
▶ 1:06:42Apparently what the FBI did recently is they they started treating a mechanism by which they sort data in the database which of course requires them to uh to look at the names and information identifying information about specific people. But apparently they have some kind of a sorting process that they go through in looking at the data and they don't count the sorting as a query. uh they only actually count as a query when they when they drill down on a on a specific individual.
▶ 1:07:12And
▶ 1:07:13so so there is no way to determine how many actual what used to be called queries are taking place under the new system. You we don't know but they reported the IG just reported a couple months ago that it was 9,000 9,000. So if that's if let's just let's just assume arguindo that that is the correct number well then that is a manageable number to require a judicial warrant before you conduct that query. Is it not Mr. Tolman?
▶ 1:07:44it absolutely is. and and in fact um my conversation with a former chief justice of the Fisk was his greatest concern was the fact that there was so much pressure to grant everything that was presented to them that they didn't have the ability to review it thoughtfully. Now they do.
▶ 1:08:03Uh my my time has expired. There's so much more I would like to ask, but Mr. Chairman, I have uh some articles I'd like to include into the record if I
▶ 1:08:10Sure. Uh this is a uh this is a truth uh from April 10th, 2024 from President Trump saying kill FISA. It was illegally used against me and many others. They spied on my campaign. Um this is one is entitled warrantless FISA searches are unconstitutional. Judge says in landmark
▶ 1:08:29Government surveillance erodess trust between citizens and government.
▶ 1:08:32Without objection. more than 30 bipartisan organizations urged Congress against reauthorizing spy powers in the spending bill
▶ 1:08:40without objection.
▶ 1:08:40Um and then uh and one entitled curbing the power of surveillance state section 702 reform and
▶ 1:08:47Thank you Mr. Chairman.
▶ 1:08:48Yeah I would just add before recognizing the gentle from California to the gentleman's first point. Not only is permission from a manager supervisor in an agency different than probable cause they didn't even follow the rules they had set up within the agency with the manager. So that they didn't even follow those rules. That is that is why we need the triedand-true standard. The gentle lady from California is recognizing it.
▶ 1:09:10Uh thank you, Mr. Chairman. I as I listened to uh the witnesses, I was thinking back, it was I think a little more than 10 years ago that Mr. Massie and I offered an amendment with the help of then Congressman Justin Amash uh that would have prevented all of this. uh it did pass the house and never uh went uh into effect.
▶ 1:09:33Uh and we have been uh over the years uh striving to do this and somehow no matter which party is in the majority uh the intelligence committee always manages to thwart our efforts for reform and I am hoping that that could change this year. We certainly failed last year uh in fixing the core problems.
▶ 1:09:58Uh we have a chance to change this and in fact I'm working uh to reintroduce an updated bipartisan biccameroll government surveillance reform act which will finally require warrants to read America's messages, ban draget surveillance, stop the government from buying personal data. uh and I'm hoping that many on this uh committee will join in that effort as we have in the past.
▶ 1:10:26This is one of those uh issues where uh we do work together on a bipartisan basis and I'm hoping that we can finally succeed this time. You know, the FISA court itself has called out the FBI for repeated unlawful searches, snooping on political donors, journalists, members of Congress, even protesters. Um, and I think it's it's past time for us to fix this.
▶ 1:10:52If the government wants to read an American's email or texts caught up in foreign surveillance, they should need a warrant. Uh, the FISA court found that the FBI misused the loophole hundreds of thousands of times. Uh, the NSA can resume collecting communications that merely mention a foreign target. That's permitted by law. um they can still buy private data like location, web browsing messages.
▶ 1:11:22Um and we're seeing as we've mentioned a growing trend of federal agencies including defense and intelligence contracting with companies like Palader uh to uh compile uh data. So I'm I'm hopeful that we can move forward, but I have a couple of quick questions. Um, Miss Gitan, the there is an expanded scope of who counts as an electronic communication service provider.
▶ 1:11:51You referenced that in your testimony, although the practical effects I think are classified. Could you briefly explain what kind of businesses could now be required to assist government surveillance such as data centers, cloud storage providers, or even companies that simply manage equipment that carry communications?
▶ 1:12:10Sure. So, in the past, the way that the surveillance has worked is that the government has uh served directives on electronic communication service providers. We're talking about Verizon and Google um companies that actually have direct access to our communications because they f facilitate our communications. That's the service that they provide. Uh and they would turn over the communications of targets.
▶ 1:12:32Um there was a FISA court uh opinion a few years ago um which found that data centers for cloud computing at least it was reported that that was the type of provider at issue did not qualify under that definition. Um the Biden administration wanted to make sure that that they were included, but they didn't want to reveal that that was the type of provider at issue because that information was and remains classified.
▶ 1:12:56Uh and so uh they deliberately solicited an over broad amendment, one that was written in vague and very broad terms so that no one could figure out who what kind of provider it was. And so what it now allows is the government can compel the assistance of any provider of any service as long as that provider has access to equipment on which communications are rooted or stored.
▶ 1:13:22Well, pretty much every American business and a lot of organizations provide some kind of service and they all have access to communications equipment. That's a phone or a computer. So, and there are some exceptions, hotels, restaurants, uh, libraries, but the vast majority of ordinary businesses that Americans frequent and for example, the commercial landlords of the buildings where tens of millions of of Americans go to work every day can be forced to assist the government with surveillance.
▶ 1:13:52And this part is really important because these businesses don't have the ability that Verizon or Google have to isolate and turn over specific communications. They may have to give NSA personnel direct access
▶ 1:14:06to their communications equipment and all the communications that run through that equipment in including purely domestic communications and then the NSA will basically be on the honor system to extract the communications of foreign
▶ 1:14:19Thank you, Mr. Chair. I just note that we also need to pass the uh privacy uh bill that Congresswoman Esshu and I introduced a while ago and I'm reintroducing because we need to get it at FISA but we also need to get it at the source so that people cannot sell our private data and with that I yield
▶ 1:14:39Uh I think the gentle lady uh the gentleman from the gentleman from California is recognized.
▶ 1:14:43Thank you. Uh, does anyone on this panel believe that Senator Blackburn, Senator Graham, Senator Haggedy, Senator Howley, Senator Johnson, Senator Lewis, Senator Sullivan, Senator Tupp Tupperville, or Congressman Mike Kelly uh are uh a risk to national security or would be reasonably believed to be a risk or should have been surveiled.
▶ 1:15:14uh under a program targeting them. Seeing none, I will move on. Uh they're my friends. They were targeted because they were Republicans. That is unforgivable. And the FBI cannot expect anything other than a consent and criminal punishment if they ever do it again. Anything less, and I'll go to Mr. Tolman.
▶ 1:15:42If you were prosecuting a case, would you accept anything less from somebody who committed that crime, assuming you're not locking him up for years for doing it in the beginning?
▶ 1:15:51No, absolutely not. But our history shows, for example, in the attorney Kevin Kleinmith that he was prosecuted for his misrepresentation to the Fisk, but received no jail time. So, is there meaningful deterrence? And presently, there is not. Well, it is it is true that no one is above the law, but there's a caveat unless you are the law. And unfortunately, the FBI and Department of Justice are the law.
▶ 1:16:19And although I I trust the current inhabitants, I trusted the Bush people and I was wrong. I trusted each of the successors and I was wrong. Let me just go through a couple of things sort of to put it in perspective maybe for the record and maybe for people who are truly lay people.
▶ 1:16:38Um if uh if I wanted to uh find out if you were growing pot illegally in your house and I flew over with a heat sensor uh and then determined that you had hot spots and then raided your house without a warrant, what would I be doing? Would that be okay?
▶ 1:17:04No, it would not be okay.
▶ 1:17:05And isn't it true that uh the uh the Kylo uh decision by the court was right on that point? But in that in that if I understand correctly what they did was they they they said that the reason it was unacceptable versus let's say just flying over in an airplane and seeing plants growing in your backyard was because of the tools used. Correct.
▶ 1:17:34Now as we're talking about this data is that kind of data available to uh Mr. Bigs or Mr. Jordan. So by definition, the first pillar of the Kylo decision, which is that the tools are not readily available to the public, this massive amounts of data and the ability to gather it, they wouldn't pay $100 million if it was available any other way, right? If they could just get it themselves.
▶ 1:18:05So they've met the first What is any second requirement that you can see that would allow them having met the first requirement that what they're getting is material, a tool if you will, not available to the public. It's not ordinary eyesight. It's not just walking up and sniffing something at the door.
▶ 1:18:27If this tool is by definition special, then the use of the tool follows directly underneath this historic question of fourth amendment without anything else. Does anyone see a way that they can carve their way out of
▶ 1:18:44Yes. Well, they will try to say that a lot of this information just isn't protected by the Fourth Amendment at all because because we are voluntarily sharing it with
▶ 1:18:53But the Fourth Amendment Oh, you're absolutely right. And I agree with you. Except the Fourth Amendment I personally don't think that you're not agreeing with me.
▶ 1:19:00I person No, I agree with you that that's what they'll try to do.
▶ 1:19:04I personally have seen this tool that can pick up heat and water damage above your ceiling. My son has one. It's fabulous. It it lets you find where you got a leaky pipe. It lets you find where there's a leak in your heating system. Every H uh you know uh heating and air conditioning company either has one or should have one. But the fact that a special tool exists doesn't change the fact that it's a special tool, does it?
▶ 1:19:35And by the way, heat coming out of your house was never considered to be protected until the court said the tool and the source of the tool is what determines that. It's not an ordinary eyesight. So I'm going to close, Mr. uh chairman, by saying shame on the court for not already having taken a case up and done this, but if they won't do it, this committee must do it in reauthorization. And I yield back. Gentleman yields back.
▶ 1:20:04The gentleman from Tennessee is recognized.
▶ 1:20:07Thank you, Mr. Chair. Miss Goten, we've been doing this, Miss Scotian, and we've doing this for a long time on different issues. Let me ask you a question. Uh we um the problem is is it the is it the law or is it the enforcement of the law?
▶ 1:20:23It's both. Um but those two things are related. I mean, one of the things that I've wondered when I look at these um massive compliance failures over the years, I don't think all of those compliance failures were intentional. I don't think all of them were negligent.
▶ 1:20:36I think that the they have built a system that is so massive and so complex and the rules are just so um sort of arcane and intricate um that it might actually be impossible to completely enforce um the rules as they would need to be enforced to protect Americans privacy. That is one major advantage to the warrant requirement is that it's so much simpler.
▶ 1:21:00you reduce the need for all of these uh massive layers of oversight for different rules for different tools you might use for different queries figuring out is this a query is this not a query it's very very simple if the government wants to access an Americans communications they submit a warrant application they go to the court or a title one application um it it simplifies the process uh and that will itself even leaving aside the fact that you now have an independent branch of government per government performing
▶ 1:21:31this review um will uh make compliance
▶ 1:21:39With AI, are we going to have more and more problems because there'll be more and more data?
▶ 1:21:43Absolutely. And I think with AI, we're going to have to really reexamine um how US person query is even defined because uh if AI is used in a way that can select US person communications without actually using what we think of as US person identifiers um then we are sort of right back where we were before um with really no limits on governmental access to US person communications. So, um, yes, that is an issue we will have
▶ 1:22:14Has the FISA court been fairly consistent in how they've dealt with these issues?
▶ 1:22:20I mean, what I would say is that the FISA court has been remarkably tolerant um of just this long history of abuses. It's, you know, we focus on the FBI's quering abuses in in recent years. Um, this program has been plagued uh with violations and non-compliance since its exception, since its inception. And I'm not just talking about the FBI. I'm talking about the NSA in particular, the CIA.
▶ 1:22:45The NSA was violating its query restrictions um systemically for almost a decade after the program was put in place. Um, and yet every year the FISA court has reauthorized this program. a couple of times they've waited a a few months for new layers of oversight to be put in in place. But to me, it's an example of fool me once, shame on you, fool me twice, shame on me.
▶ 1:23:10Because it's been a 17-year pattern of violations, um, extensive systemic violations, and yet the FISA court, you know, points out the violations, is upset about them, says they're unacceptable, and reauthorizes the program. Let me go to another issue, I guess. Mr. Ice, I asked you about those seven or eight, nine senators and reps and whether anybody thought that they should be subject to any reviews.
▶ 1:23:37Well, as I understand it, the the idea was not that they because they were Republicans. It was because they had Mr. Smith had reason to believe that and and a court agreed in issuing a warrant that they had con possible connections with the Trump White House and the overthrow of our government. Uh, did that not would that not give any of y'all cons the belief that they should have been queried or looked at their records or their phone calls?
▶ 1:24:06Oh, I'm so sorry. I thought you were ask Can you just repeat that? I I was
▶ 1:24:09that the idea that that Jack Smith got a
▶ 1:24:12Because and apparently because he thought that these people might have some contact with the president and the committee to overthrow the government, whatever it was.
▶ 1:24:20Right. So, I mean, I think what we're dealing with here is the fact that um subpoenas for communications records are extremely easy to obtain. Um, you actually don't have to show that the person in question is themselves um involved in any sort of criminal activity. The standard is one of relevance. Um, that's a very low standard.
▶ 1:24:42Um, and I think when we're talking about communications metadata, um, which is incredibly revealing information, this is the information that the NSA was collecting in bulk.
▶ 1:24:51Let me just go quick. My time's about to run out.
▶ 1:24:53I'm sorry.
▶ 1:24:54Million dollar question. Do you think those nine people because they were had their metadata looked at should get a half million to a million dollars simply by going to federal court? I I think if we're going to do that, then I think that should be open to everybody who's had their metadata um acquired based on this very very low standard. Um and that's that'll be a little tricky.
▶ 1:25:14Thank you. I yield back.
▶ 1:25:15Gentleman yields back. Mr. Tolman, are we all in the database? Every single person, every single
▶ 1:25:22Yeah. This this database is huge, right? They're getting information on foreigners, but we're all getting swept up in this. So, this is one giant, I call it the giant hay stack of information, and you got 10,000 people at the FBI who can just I'm going to search on Mr. Tolman, on Miss Giton, I'm going to I'm going to search on whoever I darn well. And they've demonstrated that they can't police themselves.
▶ 1:25:51Whatever the agency is, whatever rules they have, they can't police themselves. So, this is why Congress has to do it. And why not use the triedand-true rule? Uh that to me is like this is how big this is. I want to go down through a couple things here that have been been raised. First of all too um gentleman from Tennessee's uh questions the uh and getting people's toll records. Um I do have a concern with this because some of this was done for a long period of time. You you they Mr.
▶ 1:26:19Smith went and got the the toll records subpoenaed from the carriers the toll records of the speaker of the house of representatives. And frankly, he waited until Mr. McCarthy became speaker of the house to go get his toll records from three years prior. And the real concern I had with that is they did it for a two-month time span. So, Miss to Miss Goiton Goin's u statement, you can pattern someone's life. You can figure out all kinds of things because they knew who Mr.
▶ 1:26:50McCarthy called, who called him, when the call took place, how long it lasted, and if Kevin initiated the call, they knew where he was at when he did so. Well, Shazam, you can follow, you can figure all kinds of things out. So, that's the concern when they do this and we need to I think frankly look at it's why this committee passed the non uh disclosure um the gag war. So, that's the other thing.
▶ 1:27:12They get that information and then they tell the judge, uh, they go to the judge, tell the carrier, tell AT&T that they can't tell the customer that the government just got their phone logs for two months, can pattern their life and know all that stuff I just talked about. That's a concern. And so, we've passed legislation out of this committee. We hope passes the House here soon, which puts limits and restrictions on that, not just for members of Congress, of course, but again, to everyone. Think that's a good piece of legislation we pass? Mr. Tolman, I'll come to you.
▶ 1:27:41It's it's essential.
▶ 1:27:43Yeah, it's essential. Everyone agree with that?
▶ 1:27:46Yeah. Um, so we got the Indo issue. Mr. Ras and I were talking about these these areas of concern with privacy. Uh, we have the third party data, you know, uh, purchasing data. This what we call the fourth amendment's not for sale because if you can buy stuff that would otherwise require a warrant, shouldn't be able to do that. So, we want we got to do some work on on that issue.
▶ 1:28:09Then there's the fundamental question we're asking for for FISA 702 go get a warrant before you you you get act the ability to search people's and then there's this compilation of data and so I'm just interested any thoughts you have on I mean should we we're trying to strategize um the ranking member and I and the committee how much do we try to put in 702 do we do separate legislation we're trying to figure that out too but I'm just I'm just curious any thoughts that that you would have maybe we'll just go down the line so let's start with the Democrat or the Skoy and then we'll move move across Yeah, I I
▶ 1:28:39think you really can't address section 702 in isolation because section 702 is part of a vast ecosystem of often overlapping surveillance authorities and if you cut off one avenue of surveillance, the government uh might be able to turn to another or to exploit gaps in this network of laws to conduct surveillance without any statutory authorization.
▶ 1:28:59You think we should try it all together?
▶ 1:29:00Well, it's not that. I mean, frankly, there's a lot you could address and we're not really talking about everything here. I think the four reforms that have been specified here today are are certainly a good place to start, right? And that is a warrant for or a title one order for backdoor searches. That's closing the data broker loophole, fixing the electronic communication service provider definition and uh shoring up uh the role of Amiki in the FISA court.
▶ 1:29:26Thank you. I I agree with Miss Guyin that at least for the purposes of of FISA that we want to focus on those four key reforms because I think that those are the most promising things that we can get addressed and then for the other kinds of things that you're highlighting there are other vehicles that we can go and explore um in terms of pushing
▶ 1:29:42and I would not limit you yourselves to to FISA reforms written narrowly as as as you all are much more aware than we are there only limited windows when legislation can actually get passed by both chambers and signed by the president and and those don't come along all that often and I think it's important to take advantage of them when they do.
▶ 1:30:04Thank you.
▶ 1:30:04I would I would just lastly say why aren't they capable of of of self-governing in this area? And we have to remember post 911 we shifted the FBI and the Department of Justice's overarching mandate to intelligence gathering for national security purposes. So once you do that, their mentality is not to self-govern.
▶ 1:30:2512 billion dollars we give to the FBI, that's their budget. Over half of it is used on the surveillance stuff
▶ 1:30:32versus I mean, you go talk to average American, they would say like, "What? I thought the FBI was supposed to be going after traditional bad guys, not not spying on on Americans." So you're you're exactly right. That is that is a problem. One last thing, I know I'm a little over time. I'll give it a little more time to the next next Democrat witness. Someone said, "Let it expire." I I forget which of you said that in your opening, Mr. the guy who helped put it together. Uh the uh well give me your thoughts on that.
▶ 1:30:59Well, you know, without wisdom and in my youth, I bought everything that was, you know, argued by the Department of Justice as to why they needed it.
▶ 1:31:08Then you see their in their incapability of actually governing themselves with such power. It would be like 215. We let that expire and here we are still stopping national security threats.
▶ 1:31:23We didn't think that was possible when 215 expired.
▶ 1:31:25Yep. Yep. Okay. All right. Uh the gentleman from Georgia is recognized.
▶ 1:31:31Thank you, Mr. Chairman. I don't view this uh committee meeting as the most serious effort when it comes to FISA reform because if it was we would have someone from the intelligence community uh sitting on this panel to give that Now it's clear that um this committee also is not interested in protecting the security the personal private security and the data of uh American citizens
▶ 1:32:02and uh that's because it was complicit when this president set up Doge the Department of uh government efficiency and put it in the hands of Elon Musk and then unleash Ed Elon Musk to collect the private data of uh citizens uh through capturing the data of the Social Security Administration, the Treasury Department, the
▶ 1:32:32Office of Personnel Management, Health and Human Services, the VA, the Consumer Financial Protection Bureau, the Department of Commerce, the Department of Education, the Department of Energy, the Department of Labor, the Department of Transportation, and others collecting this data. And the goal was to create a single centralized government database.
▶ 1:33:01And uh this effort was unprecedented and unauthorized by Congress. And while it was happening, this committee, as it does today, stood silent and complicit and let it happen and is not concerned about it. I'm concerned about that data. I'm wondering, um, Miss Goten, if you are, as it relates to section 702.
▶ 1:33:25I'm very concerned about what you're talking about and in fact, I think I was speaking about it earlier when we were talking about sort of removing the quote unquote silos. Um, I I think that the the access to data, private sensitive data of Americans that is collected by the government on occasion for legitimate reasons and then maybe sometimes for less legitimate reasons when the government is simply buying up massive databases. Um, making that data widely available to anyone in government is a major privacy and civil liberties
▶ 1:33:54and this commu this committee has not been interested in that. Let me ask a The fourth amendment, which requires probable cause to conduct a search, also has uh exceptions to it, such as stop and frisk, such as uh evidence in plain view, such as uh search incident to a lawful arrest, such as exagent circumstances. Am I right?
▶ 1:34:25That's for people on the street though, regular people. But people in the suits, before I say that, I'll note that on February 20th of this year, Trump issued an executive order forbidding the federal government, the DOJ, the SEC, and others from applying or investigating the Foreign Corrupt Practices Act. And you all know that that's true. They're not enforcing that.
▶ 1:34:55And at this point, international crime perpetrated by American citizens. Trump in the lead with the acceptance of a $400 million jet. He just the other day uh accepted a peace f prize from uh FIFA. And then the next day they announced that an indictment of FIFA is uh is withdrawn, is being dismissed.
▶ 1:35:23corruption, pay-to-play is what's happening under this administration. Let let me ask this question. Why shouldn't there be an exception to the warrant requirement in a situation where an FBI agent has a reasonable suspicion that a US person should be queried?
▶ 1:35:51uh because that FBI agent has evidence that that US person is engaged in an international conspiracy uh to commit a mass murder of Americans and that FBI agent wants to query the uh 702 database.
▶ 1:36:14Why shouldn't there be uh a an exception to the warrant requirement that allows that FB agent FBI agent to do that? And by the way, I should say that the FBI under Cash Patel and the DOJ under Pam Bondi, I don't have any confidence that they would uh apply the law uh justly, that they would act in a legal fashion. I'm afraid of what they will do.
▶ 1:36:43it implicates how I'm going to vote uh this time when it comes to uh uh this reauthorization of FISA. I'll if someone could answer that question. Why shouldn't there be a uh a a exception to the warrant requirement?
▶ 1:37:00Well, certainly if there's an immediate threat and a risk of life or safety, there would be an exception. That's for exigent circumstances. If not, if there's time for the FBI to enga use its usual investigative techniques, the ones that are less intrusive that don't uh infringe on a reasonable expectation of privacy under the Fourth Amendment, they would have time. You said they have had evidence, maybe they have enough evidence already to get a warrant. If not, they have other investigative techniques at their disposal that are less intrusive.
▶ 1:37:26Well, they're going to have a whole bunch more uh material to work with. also after this Doge uh uh situation has unfolded. I'll yield back.
▶ 1:37:36Gentleman yields back. I would just point out that we had those exceptions in the language. In fact, I would think many of us thought we almost had too broad of an exception language in there for for imminent threat uh for a cyber security situation if the person gave permission. So, we had that in the language. It was as we we were being as
▶ 1:37:55generous as you could possibly be, I thought. So,
▶ 1:37:57well, I I tell you, I'm going to be looking at at it through a different set of eyes now that this Trump administration is in uh is in place.
▶ 1:38:06As long as you're long as you're yes vote, we don't care how you get there.
▶ 1:38:10Let's let's not stand up here and act
▶ 1:38:13Democrats are the need Biden is the need. Carter Page and all of that. Let's not stand up here and act like the reason why we
▶ 1:38:21I would just remind Jim I have not done that. And that's all that we have up here among these witnesses among the three Republican witnesses. The gentleman has and we will recognize the gentleman from California for 5
▶ 1:38:34Well, thank you, Mr. Chairman. First of all, I'm I'm not sure the data provided by an individual to the government and say an application or a tax return shouldn't be reviewed by the government. Uh that's very different than the government searching for and seizing data that's held by an individual. Uh, and I think that's the distinction my friend from Georgia misses.
▶ 1:38:56Um, other than those missing, other than those remarks, uh, I am very heartened by the fact that there is a broad bipartisan concern on this issue reflected by all of the panelists and almost all of the members. Um, as you know, the history of this goes back to 1761, the trial of James Otis of uh challenging the the rits of assistance, the general warrants of the crown.
▶ 1:39:22Um, there was a 25-year-old attorney in the audience in that trial who uh uh was named John Adams. Uh, many years later, he reflected uh uh on the trial and said this. He said, "Every man of a crowded audience appeared to me to go away as I did, ready to take arms against rits of assistance." Then and there the child independence was born.
▶ 1:39:48In Adam's view, that was the birth of the American Revolution was the abuse of searches by the crown. And of course, it was also the the birth of of the fourth amendment. um you know uh uh you know FISA is is is abused under Democratic and Republican administrations because it's human nature to acquire power and once acquired to use it.
▶ 1:40:11Uh that's why we divide the powers of government and that's the reason we have a fourth amendment that divides the power of searches between the executive and the judicial branches. And the the fourth amendment to me is very clear. If you want to look through my stuff, you've got to convince a judge that there's evidence I've committed a crime and list the stuff you want to search for. But we're told that doesn't include metadata like phone records. It seems to me that meta data is a record of my electronic activities, isn't it, Mr.
▶ 1:40:42It certainly is.
▶ 1:40:44So why wouldn't that not be equally protected under the Fourth Amendment? What am I missing? Well, I I think it is protected under under the fourth amendment. I think the reason for excluding metadata searches in the in the last version of the reform bill was just that searching mere ma metadata is less intrusive, less dangerous than searching the communications themselves. Uh but I but I think they both are protected by the for
▶ 1:41:12but they're records of my communications even if it's not a verbatim transcript of them. And then is that not used to get a warrant to review a a transcript?
▶ 1:41:22Yes, it could be used.
▶ 1:41:24So basically a general warrant could be used, but is in effect a general warrant could be used in order to get a specific warrant. Correct.
▶ 1:41:32You could view it that way.
▶ 1:41:33And so there's no protection left if we're going to go down that road. It seems to me one one ultimately has to lead to the
▶ 1:41:43Yeah. I I guess I would still say that the communication itself is more sensitive and more you know should should be subject to higher protection. Um but you're right there is a bit of a slippy slippery slope there and as as the chairman said the last version was quite generous.
▶ 1:42:00You you you dealt with the the FISA court quite a bit and you know I've been concerned uh about the secret and centralized nature of that special court. Um, you know, I remember looking statistics from like 10 years ago and there were like 35 34,000 warrants that had been requested by the government at that point. Only 11 had been rejected by the FISA court, right?
▶ 1:42:23Uh, and of course the approval of warrants of individuals like Carter Page uh were were backed by false statements. Not only were those claims not seriously questioned to begin with as they should have been, but when it came to light that the FBI had lied in its applications, I'm aware of very few disciplinary actions taken by the the FISA court. Uh there was one prosecution that uh uh ended with a slap on the wrist. Uh what are we to make of this?
▶ 1:42:50Well, I think you've you've just made the case once again for for adopting a robust amas process in the Fisk. Obviously, the individuals who were subject to uh who were being investigated can't be told that they're being investigated and and and so there's a need to have an independent uh privacy expert, somebody with a security clearance who can who can be present in especially sensitive FISA investig we we we dispersed that responsibility across the entire court
▶ 1:43:20system. Did we not?
▶ 1:43:23in order to get a a warrant, you had to go to a district court judge.
▶ 1:43:30That that that's typically true. Uh, in in the in the FISA title one context, though, of course, you go to the you go to the FISA court,
▶ 1:43:37right? But my my question is why don't we go back to the disperse system where you at least have some decentralization of this this awesome power.
▶ 1:43:46Well, there's an argument for that. I think what would what would be more important is to be sure that uh that in those decentralized proceedings if they're if if they don't actually give notice to the person who's the subject of the investigation that that the amas process should uh should be included there as well. Uh it may be more efficient to centralize it in Fisk Gent gentle lady from uh Washington is
▶ 1:44:12Thank you Mr. Chairman. Thank you for holding this hearing and thank you um to the group of us on both sides of the aisle that have been very consistent on this and have taken on our own uh party in power. Um it does seem like uh it gets very difficult. People change their views based on who's in power and so I appreciate the work we've done on a bipartisan basis to really protect the privacy of Americans and make sure that we're upholding our constitutional obligations.
▶ 1:44:40Um I want to go back to this question of queries. is Miss Guuine. Uh because you talked about it quite a bit in your opening statement and I think that this uh these preliminary numbers are not really we just have no idea what they really um show. And so I want to talk a little bit more about why we need to approach that current number that's been given to us with caution and also ask you, you know, because this is a clear example of how the FBI just changed the rules.
▶ 1:45:11Um, and they're not complying. Um, how do we make sure that whatever we write into law, it appears now we have to define query. Um, but what ideas do you have for when we approach this again that we are actually ensuring compliance with our intent?
▶ 1:45:28Well, Congress did define query and and I'm I have kind of racked my brain to try to figure out why somebody at the FBI decided that these were not queries. This was a system that allowed FBI agents to retrieve communications associated with a particular case file or facility, which is basically the communications of a particular target.
▶ 1:45:48But it also allowed them to uh to search for particular participants and pull up those participants communications and those could include US persons. So uh it was basically a way to run queries on a subset of section 702 data and and the query could be for a US person's communications within that pool. um you know this it's hard for me to understand why this was why they didn't consider this to be a query.
▶ 1:46:18One possibility is that there was a drop- down menu involved and the definition is uh includes the use of one or more terms to retrieve the unminimized content. So maybe if you're clicking on a US person's account rather than typing it in, maybe that's not being counted as a query. I don't know this for sure. I'm just trying to understand.
▶ 1:46:36Um, one of the things that also puzzles me is that apparently the National Security Division just happened to find out about this in August of 2024 and the practice wasn't suspended until early 2025. Why did it take that long to look at the definition, look at what was happening?
▶ 1:46:57Well, that's right. And it seems to me, Mr. chairman that we might be able to do you know some sort of our own inquiry into this right away and at least get the correct numbers and make sure that we are operating with full data. Um I want to ask you Miss Guine also about um uh the the question of uh 702 does not allow for the targeting of US persons and yet millions of Americans have been targeted for surveillance under this statute.
▶ 1:47:26Why is it important to protect everyone in the United States from warrantless surveillance? Does include persons, American citizens and all persons in the United States?
▶ 1:47:35Yeah, I mean first of all as a constitutional matter the fourth amendment protects everybody uh in this country. And so if you believe that a warrant requirement uh is const is a constitutional requirement as a district court uh held a year ago uh as the as a unanimous panel uh of the second circuit seemed to indicate in their earlier decision um then it then it applies to everyone in this country but there are practical reasons as well.
▶ 1:48:02Um just as collection of the communications of non- US persons incidentally pulls in uh US person communications queries any query can incidentally uh retrieve the communications of Americans. Um and that's because you know even if you're quering a non US person inside this country and pulling up the communication they have with a non US person target um those communications can have other people involved in them.
▶ 1:48:28It can be a group email or or a group text um that includes any number of US persons. If the non- US person being queried is in this country, that vastly increases the chances that they are going to be in frequent communication with Americans in this country. And so these are queries that pose particular risks to Americans.
▶ 1:48:50We have been hit with lots of opposition arguments. And so I want to give you one and ask you to refute it. uh you know some people view the apparent decrease in backdoor searches with some alarm and uh ask whether the FBI is not making queries that it should be making. Um how would enacting a warrant requirement both protect Fourth Amendment rights while providing a clear process for the FBI to do its work? This was just something raised all the time to us.
▶ 1:49:16Yeah. Well, if it is in fact the case that FBI agents are not performing legitimate queries because they are uh you know there's too many layers of oversight or they're worried that they will be penalized if if somebody later decides that they shouldn't have made the query. Uh there's really a simple answer to that. I mean needless to say the answer is not to get rid of the oversight and go back to all of the queries of congresspersons and protesters and all of that.
▶ 1:49:39Um, the answer is to have the government get a warrant to put the burden of gatekeeping these searches where it belongs, which is with the courts. That would reduce the need for all of these layers of internal oversight and whatever sort of administrative paperwork and burden is associated with those layers. Um, and it would also remove any motive that might exist for uh FBI agents to be excessively cautious.
▶ 1:50:06uh FBI agents would be free uh to do their job uh to vigorously pursue investigations within the law and their professional obligations and then the courts could do their job the job that they do in pretty much every context except 702 which is determine whether there is a lawful basis for this.
▶ 1:50:23Thank you, Mr. Chairman. I hope we can work together on on uh actually getting compliance with the real numbers around the queries. Thank you. Yield back. The triedand-true method, going to a separate and equal branch of government, getting a probable cause warrant with imminent threat exceptions is the answer. Doesn't take a genius to figure this stuff out. The gentleman from Wisconsin is recognized.
▶ 1:50:45First of all, merry Christmas to all of you. Remember, St. Nicholas is watching and we're hoping that um he does not need a warrant, but we're hoping we can get the federal government to make sure they get a warrant. Uh Mr. Chernowski, last time you were here, we discussed the concern with Orisa and the definitional expansion of electronic communication service provider. Is that concern still there? And if it is, how are we going to fix it?
▶ 1:51:10Yeah. Uh that concern is still very much there unfortunately. Um you know, as as Miss Guyine, uh pointed out, it radically and drastically expanded the definition of what would be captured underneath an electronic service uh communication service provider. Um and and because that that that that threat is still there, I think that there's an opportunity with this upcoming reauthorization discussion to go and rein that back in.
▶ 1:51:31Now, to their credit, uh in the Senate, uh Senator Mark Warner did try to go and get some fixes to that definition, uh but it was stripped out of the Intelligence uh authorization act process. So, that that problem is still there, and I hope that with this upcoming debate that we can get the fix that's so desperately needed. Is there any one in particular that you would point to that you'd say we got to have this in terms of a fix?
▶ 1:51:55Um, yeah. Again, I think the the most fundamental one is is getting the the getting a warrant, closing that back door search loophole is is really really integral. Um, but this electronic communication service provider, I think, kind of jumps right up there with it because again, it is just way too expansive. It goes and conscripts a whole host of businesses into the surveillance apparatus that had no intention of ever being in there. So much so that it was a rare instance where you even saw the technology go uh industry go and speak out against this particular definition of language.
▶ 1:52:25ITI had sub submitted a letter to Congress going and asking to go and fix that definitional uh issue. So yes, very
▶ 1:52:33Uh Mr. Tolman, how can we limit this data broker loophole without it hurting you know, the um the fact that it's so secret and it's contained exclusively within the the those that present to the Fisk those powers and and we're really talking about internal powers of the FBI.
▶ 1:52:57Um without being able to shed light on what they're doing and who they're contracting with, it's very difficult to stop its use. And it will continue to be a challenge unless we are putting for example third parties capable of reviewing what what they're searching and who they're contracting with. If we prevent and put guard rails on the scope of that contracting, we might be able to make an impact on its abuse.
▶ 1:53:26Uh Mr. Chair, um we've seen some political judges across the country really abusing their authority. Are there guardrails against this with Well, the the warrant requirement itself, I think, is going to is going to help bring some accountability uh to the agencies. There's always there there's always a chance that a judge will grant a warrant that he or she shouldn't grant.
▶ 1:53:56And there's always a chance that a judge will deny a warrant that he or she shouldn't grant. But at least in the judiciary there's there's an opportunity for appeal.
▶ 1:54:05You know, my concern is I mean, you see what Judge Bowberg has done and he's served on the Fisk. I mean, it's really of concern that um he's going to abuse that authority.
▶ 1:54:16Well, and and no solution is perfect. Um but the sol but the uh the mechanism that the framers of the constitution put in place uh to deal with these kinds of issues is I think uh as as perfect and as a and as good a system as we've seen there there there will be lapses there will be mistakes but uh but there will be many fewer than we currently see. I
▶ 1:54:39I think it was talked about earlier but amikas briefs are allowed correct in the I I suppose they are technically allowed, but since the FISK operates in secret, nobody knows what what the FISK is considering. So, nobody really know unless they're told uh nobody knows whether there's an opportunity to submit an AMA brief.
▶ 1:55:02So, part of the AMA system is that the FISK itself would appoint an AMAS and tell them we have this proceeding dealing with this particular target. Uh can you give us your thoughts on it? Um, so I'm going to take it that there's some limited ability. Should it be expanded?
▶ 1:55:20The AMAS pro program I believe should be expanded. There are a lot of politically sensitive um investigations that that currently uh are are not subject to the Amika uh provisions at all. And there uh and there are several politically sensitive kinds of investigations where the fisk should be effectively required to appoint an amikas to give it independent advice when it's considering a a title one warrant.
▶ 1:55:48And and once again u with the amicus um uh if that's allowed what will that what will that engender that will be helpful in this process in your mind?
▶ 1:55:58Well two things. Uh first of all, the amikas may may actually may actually find real problems with the government's case and be able to prevent an investigation or prevent surveillance that should not have gone for gone forward. But at a minimum, the presence of an amicus is going to have a big deterrent effect on the FBI and the DOJ.
▶ 1:56:20Hey, in the Carter Page situation, for example, I'm convinced that if there had been an amicus in the room and in the proceeding, uh that Kleinmith would never have lied. Um and and that the other misdeeds that occurred in connection with Carter Page would likely not have occurred because they would have been afraid that the Amikas would recognize them and point them out to the
▶ 1:56:39May May I respond on that question, Mr. Chairman? One other thing that it would prevent is what happens currently, which is where there's a deficiency in a warrant, title one warrant, the Fisk judge will actually go back to DOJ and ask them to fix or provide additional information on a deficient warrant. An amikas system would prevent that.
▶ 1:57:04Thank you for letting me exceed my time, Mr. Chairman.
▶ 1:57:06You bet. The gentle lady from Pennsylvania is recognized.
▶ 1:57:09Thank you. I want to thank the chairman for calling this hearing. Uh FISA reform is a key area of bipartisan agreement in this committee. One where our shared interests in limited government and protecting civil rights and liberties uh overlap substantially and the abuse of FISA by the FBI and the intelligence community is pretty well documented. Our our witnesses have detailed uh some of those abuses and and made some really good suggestions for reform to address that that abuse.
▶ 1:57:38Um, one cause of the abuse of surveillance authority happens because there are few enforcable limits to uh, collection of data and the use of that data. 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 committee community, regardless of who's in charge, uh, surveillance can be ripe for abuse.
▶ 1:58:03And when we don't put clear enforceable limits in law, like a warrant requirement, it means that Americans most essential rights and liberties are at risk, including the right to speak their minds, to be free from unreasonable search and seizure, and even their essential privacy rights.
▶ 1:58:18And the importance of protecting Americans uh essential rights and privacies has never been more clear than in the past year when we've seen the current administration with re with respect to its allies at Doge and the Department of Justice mobilize the government to invade and collect Americans private data whether social security tax student loans health care voter registration or SNAP data.
▶ 1:58:42And when you add that to the growing purchase of online and social media data by the government, um we see that data being used in illegal law enforcement activities and even prosecutions of this administration's political en enemies.
▶ 1:58:58So, um, one example is, uh, where we've seen the White House weaponize government surveillance and law enforcement to target political opposition and stifle political speech with the National Security Presidential Memorandum 7 or NSPM7, which directs the intelligence community and law enforcement to target organizations and individuals on the basis of their political beliefs or political speech, actions that are unambiguous.
▶ 1:59:28ously protected by the First Amendment. And on the basis of that memo, we've seen Attorney General Bondi direct the FBI to compile a list of groups allegedly engaged in domestic terrorism using examples of protected political speech as key criteria for inclusion on the list. So if you strip away the pretext, then the purpose of these actions becomes clear. This administration is already using the federal government to target political opponents.
▶ 1:59:57So given the known abuses of FISA by governments past and presents and the willingness of this administration to run roughshod over existing guard rails, um it seems pretty clear that we've got to act to limit those abuses. Um or else we're going to see FISA um being used illegally to spy on Americans who don't align with this administration's agenda.
▶ 2:00:22Um, Miss Godian, in your testimony, you raised the very good point, I think, that Americans should expect and be able to trust that Congress will protect their privacy and their freedoms. When Congress last considered FISA reauthorization last year, we were told repeatedly by the intelligence community that our Fourth Amendment concerns were best addressed by better stewardship of uh FISA authorities by the government.
▶ 2:00:50Um do you think that that has played out in practice um given the known abuse of surveillance authorities that we've seen and the failure to collect and report accurate data about the use of those authorities?
▶ 2:01:04Yeah, I I think one important point to bring up is that the failure to count these queries as queries and to follow the procedures required for US person queries like getting attorney approval uh or providing a written justification, those are themselves violations of the law that Congress passed last year.
▶ 2:01:22So while we don't know uh whether or there were violations of the uh substantive standard for queries or how many violations there were, uh we know at least that there was a fairly systemic uh violation of several requirements of the law that have happened so far.
▶ 2:01:41Um, in terms of whether the particular queries met the standards, I'll point out that the government credits uh some of these procedural requirements, attorney approval, uh, written justification, audits, uh, for improved compliance, and those were not happening
▶ 2:01:57with these particular queries. So, I think it would be reasonable to expect that you would see a higher rate of non-compliance with these queries. I don't know if we'll ever know that uh, for sure. Uh so no I I mean I don't think the record has has borne out this notion that you know internal oversight uh was the best way to go about protecting the fourth amendment and you can tell that by looking at the fourth amendment which does not talk about internal oversight.
▶ 2:02:22It does not say if the government has a reasonable ba reasonable basis to believe that its search will yield important information um it can either go to a court and get a warrant or just do the search. Right? That's not what the fourth amendment says. So that's not the uh that's not the way to protect fourth amendment
▶ 2:02:39Sure. I mean the constitution famously said you have to get approval from a different branch of government in order to avoid the kind of self-deing or you know pay no attention to that query behind the curtain. Um kind of a kind of an approach to this. Um can you just address again um how the warrant requirement protects people from potential targeting on the basis of their political beliefs? quickly.
▶ 2:03:04I'm sorry. I did not realize my time is had is has expired.
▶ 2:03:09Okay. Well, we I'm gonna The gentle lady yields back and we we'll recognize the gentleman from Kentucky. Thank you, Mr. Chairman. Thanks for having the hearing on this. Um, you know, I've been working on this for over a decade with my colleague, Mrs. Zofrren, and I was ecstatic a decade ago when we got an amendment passed to require a warrant, but somehow that got stripped out. And it's kind of like Lucy and the football and Charlie Brown. We get so close or we think we've won and then it gets pulled away.
▶ 2:03:39Um, and I I'll talk a little bit about the elephant in the room. One of our colleagues here you who used to be for FISA reform is now the speaker of the house and cast the deciding vote uh against FISA reform last Congress. Uh, we don't want to talk about that too much, but I'm going to bring it up because when he was asked why did he change his position, he said he learned some stuff in a skiff. Well, the skiff is like the magic room where they go change your mind. The problem with his story is I spent three hours in the skiff with him.
▶ 2:04:09And when we pressed the CIA director and the director of national intelligence and the head of the FBI, all of them were in the skiff, give us one example where you couldn't have solved the crime or you couldn't have prevented some mass casualty event because of a warrant requirement. They could not give us a single example.
▶ 2:04:28The only person in that room who had a decent argument about anything was a FISA judge who said, "Ah, you're going to need more skiffs somewhere if we're going to review these if you're we're going to have to review warrants." And so it became a cost issue, but I thought that was kind of lame. You know, it's going to cost some money to follow the Constitution. Okay, what's it going to cost?
▶ 2:04:49Um, one of the things that Zo Lofkin reminded me of is there all these sort of loopholes where we're afraid if we do get our FISA reform. The the intelligence agencies are going to use these loopholes to spy on Americans. And the one I want to ask you all about today, well, there's actually three of them, but one of them is Executive Order 123. And I and I see Miss uh Guyine shaking her head.
▶ 2:05:16So I'll ask her what should we be concerned about 12 triple 3 and what could we do about that executive order?
▶ 2:05:22Yeah, absolutely.
▶ 2:05:24Yeah. So let me explain a little bit as a general matter. FISA applies when the government is collecting information inside the United States or from US companies. Um if the government is collecting information overseas, it usually is relying on a claim of inherent uh authority as governed by executive order 123 and various other uh executive policies.
▶ 2:05:47And this is a critical distinction uh because there are um almost no legislative protections or guard rails for executive order 123 and there is no judicial oversight. Now this distinction between collecting here and collecting there might have made sense in 1978. Uh because you know collection inside the US usually meant collecting on Americans and collecting overseas usually meant collecting on foreigners overseas.
▶ 2:06:15Um as we all know with the changes in technology that has completely changed. communications, other sensitive information is routed and stored all over the world. And in fact, the fact that foreigners communications were being stored by US service providers in this country and therefore the government would have needed to get a warrant for those before 702 is one of the reasons the government pushed to modernize FISA with 702.
▶ 2:06:41They just didn't address the other half of the problem which is that Americans communications are routed and stored overseas in ways that can in some circumstances remove them from the protections of FISA for example when the government collects collects information in bulk overseas and it's inevitably pulling in Americans communications. So Americans communications are uh acquired incidentally. They are acquired as part of bulk collection under EO123.
▶ 2:07:09And the only safeguards in place are those that the executive j branch has chosen to put in place. It will not shock you that those rules and procedures are much more lax.
▶ 2:07:18This isn't the answer I wanted. I wanted you to tell me we shouldn't be concerned about executive order 123.
▶ 2:07:24Sorry, you called in the wrong witness. Um, another loophole that we've identified in the Weaponization Committee was the Financial Privacy Act of 1978, which is one of those bills that did the opposite of what it was supposed what it the name of it was. It created a loophole that allows the government to get bank records without any warrants or anything. Is anybody familiar with this? Yeah. Yes, I am.
▶ 2:07:49I would say there's the concern overarching concern I have is you have 1978 you have 1981 on 123. We didn't have the ability to collect the data that we do today nor the access to it. Um it was very different government that we were talking about back then when those executive orders came out.
▶ 2:08:09So that may need updated as well. You think? Absolutely it does
▶ 2:08:15because we've we identified where they've been using it recently and a lot of this stuff actually comes through whistleblowers. This just in closing, I'm disappointed that our committee didn't find the Arctic frost the spying on the senators and it wasn't a we're responsible for oversight. We couldn't even find them spying on us. It was a And so, um, I think we need to tighten up our oversight over these committees
▶ 2:08:42well, we did we did find that they were spying on the speaker of the house and members of this, well, at least one member we know of, but this and just one more thing before close. I I know we got some I would prefer to fix the law for everybody, not for members of Congress. Totally agree.
▶ 2:08:59But one of our colleagues was very vocal about making sure it was fixed for members of Congress. But the fix was to report the spying to the speaker of the house um and maybe a couple chairmans of committees. Why not report it to the person that was spied on the member of Congress? That's my concern. I yield back. That's why we that's why we did the non-disclosure order non-op fairness act. But we pass out this committee to help with that in that regard. The gentleman from Calh Colorado is
▶ 2:09:28Thank you, Mr. Chairman. I see my colleague, Mr. Mass. I don't know if you wanted to finish that thought, Mr. Massie. I'm happy to yield a moment.
▶ 2:09:34They gave he gave me an extra minute.
▶ 2:09:35Okay. All right. Uh, well, thank you, chairman, for holding this hearing, and certainly thank you to all the witnesses. I share the concerns of my colleagues on both sides of the aisle with respect to FISA abuses in the past and the necessity for reforms. Uh, Mr. Sher, I want to ask you a couple of questions. So, you've testified today uh about your representation of uh Mr.
▶ 2:09:57Carter Page, former Trump campaign adviser, in his ongoing lawsuit against the United States based on the 2019 finding by the Department of Justice that the FBI had used invalid warrants to monitor Mr. uh Dr. page under section 702 under so in 2020, 5 years ago, the special counsel, the Department of Justice, John Durham, secured a guilty plea from an FBI attorney who doctorred an email that was used in that warrant application.
▶ 2:10:24Is that a fair characterization of the event so far?
▶ 2:10:29I think he actually went to trial. Uh, you're talking about Kevin Kleinmith,
▶ 2:10:33Yeah, I went to trial. Got it. So, and ultimately was convicted. He he was convicted but didn't get any jail time.
▶ 2:10:41Correct. So my understanding is that to address at least in part some of these 702 abuses
▶ 2:10:49Attorney General Bill Barr in 2020 directed the creation of an office of internal auditing.
▶ 2:10:56You're familiar with that?
▶ 2:10:57All right. And that office of internal auditing, this was created by former president or not former President Trump's former attorney general in the first term, was designed to scrutinize the 702 process to prevent these kinds of abuses from happening in the future.
▶ 2:11:13I I I think it was designed to scrutinize title one processes. Um the the the other provision of uh correct of FISA, right?
▶ 2:11:24I assume that you agree that that's a worthy goal. certainly a worthy goal and and one that would be advanced even further by by adopting the amicus uh mechanisms that we've we've discussed here and that passed the senate with 77 votes a couple of years ago
▶ 2:11:40and I also assume you're aware that the office of internal auditing no longer
▶ 2:11:45I wasn't aware of that.
▶ 2:11:46No. So the director of the FBI
▶ 2:11:49Cash Patel earlier this year eliminated
▶ 2:11:52the office of internal auditing at the FBI. This was an office that the Republican attorney general, Bill Barr, created five years ago in response to the work done by Chairman Jordan and Republicans and Democrats on this committee. Doesn't seem like that accomplishes a whole lot.
▶ 2:12:14I I I've I am I've yet to understand the rationale as to why the FBI director, who by the way, at least prior to his appointment as FBI director, had expressed all kinds of misgivings about 702 and FISA and the like, has now decided to eliminate the Office of Internal Auditing at the FBI. I wonder why that is. I don't know if you care to to perhaps make a educated guess.
▶ 2:12:36Well, I think I think that's all the more reason why Congress needs to act. Congress. Congress is the representative of the people needs to be the entity that's protecting uh the rights of
▶ 2:12:47Yeah. I I don't disagree with you. Clearly, there's an impetus for Congress to do something and and I think that that's the uh you know, obviously the rationale for this particular hearing, but it would be nice to perhaps hear from our chairman and my colleagues on the other side of the aisle, who I know have direct relationships with the attorney general of the United States and the director of the FBI. Uh it'd be nice to hear them defend the Office of Internal Auditing that uh that I presume they supported a mere five years ago.
▶ 2:13:16Doesn't really quite make much sense to me why that would be eliminated. Uh I see I know I'm getting near the end of my time. As I said, I think that there is a a bipartisan consensus in the Congress. It's emerging that this is an area ripe for reform. Again, it's something I'm supportive of. Uh and I look forward to working with my colleagues on both sides of the aisle to try to uh make some progress in that regard. And I will uh yield back the balance of my time.
▶ 2:13:41Yields back. The gentleman from Texas is
▶ 2:13:48I thank the chairman. I thank the witnesses. Appreciate you all being here. Um let me just ask this question among the four of you and I think I know the answer. And I'll start with you, Mr. Tolman. I'll move across the panel. Is there any legitimate reason why we should not have the warrant protection included in a reform to FISA?
▶ 2:14:11Mr. Tolman,
▶ 2:14:13no. And in fact, the the reasons stated are illegitimate. You take the argument that the FBI can do it themselves. That's that I've never believed in the fox being able to analyze and control what the fox does in the hen house.
▶ 2:14:27For sure. Absolutely. There's no reason not to not to include it. It should be
▶ 2:14:33I think that it is a must-have thing if we're going to go and reauthorize FISA,
▶ 2:14:37Miss Coin.
▶ 2:14:38No reason not to include it.
▶ 2:14:39Okay. And with all due respect to I think we had one of our colleagues on the other side of the aisle who uh was expressing some concerns um about not having somebody from the intel community here. Like the Intel community is the one are the ones running the show including by the way with all due respect a lot of our colleagues on the Intel committee here who are a part of the show and judiciary exists to focus on the constitution and the rights of citizens to not have this occur and that's why the chairman
▶ 2:15:09is absolutely correct to have this witness panel and I would just note that all four witnesses including the Democrat witness just said there is no legitimate basis for us not to include a warrant protection requirement in FISA reform.
▶ 2:15:25And I want that to ring through the halls of Congress between now and April so that when we are forced with the vote that is inevitably going to occur on this issue that we not have what happened almost two years ago where we left the American people without the protection the Constitution affords them from a tool that is being used on by on a bipartisan basis to target the American people and collect their data, which is offensive and it is wrong And there cannot
▶ 2:15:55be this cloak of secrecy surrounding intel. And to that point, I wonder if Miss Goten, you might be able to help me out here a little bit. I offered a couple of amendments uh to FISA last time. And one of which was to demand that we get all of the reports of the queries. And in that amendment, we and I think we we settled on quarterly. I wanted it to be monthly or whatever, you know, regular reporting.
▶ 2:16:22And we gave them a year at their, you know, uh, wailing and nashing of teeth that they wouldn't be able to get this done and figured out within a year. Okay. So, that year expired last, I'll call it, you know, spring. Well, do you know and are you aware have we gotten any kind of data and reporting information out of the system one uh efforts so that we can look and look at the data specifically with respect to these queries? Can you illuminate us?
▶ 2:16:50I I actually don't know the answer to that question in terms of what you have received um from the FBI. Uh it looks like Congresswoman Ross might
▶ 2:17:00Okay. Yeah.
▶ 2:17:02I I'm not sure if you're not if you're not getting the data that you're supposed to be getting under the law. Needless to say, that's a very serious
▶ 2:17:08Well, what we're uh advised of is that we are is that the system one is not even really recording these queries and set up in a way
▶ 2:17:17Yeah. I didn't sorry the system one Exactly. I mean that that data. So what happened was that in I think it was March of 2025, the National Security Division um told the FISA court that it was currently cooperating or coordinating with the FBI to determine whether any uh records of this functionality had been generated. So I think absolutely this committee should be following up on that to determine whether any such records were located. if not whether they can be forensically reconstructed.
▶ 2:17:46Um that is information you should have.
▶ 2:17:48And then I I have a limited amount of time. I I just want to stipulate for this committee that um we we need to see that data. We need to see the results of the queries. We need to be able to identify that information and I want to see more changes in FISA to force more information and compel our ability to see it.
▶ 2:18:06And I would note also that we included provisions in there for the chair and ranking member of judiciary as well as leadership to be able to go into uh fisk proceedings and that has been allowed pursuant to the law, however, the FBI has then stipulated at times that individuals would have to be removed and that they would need to leave for certain sensitive uh conversations which by the way the statute never contemplated.
▶ 2:18:34And what we passed did not contemplate that members of Congress who have full clearance that in the statute they are supposed to be able to go in there in these fisk proceedings and monitor them. The FBI has no basis whether that was the FBI under the Biden administration or the FBI FBI under the Trump administration to then say it's too sensitive. Members of Congress need to leave these proceedings.
▶ 2:19:00So whatever we do in both carrying out our oversight function of the of the executive branch or whatever we do in FISA reauthorization unless we let it expire for Mr. Tolman's I think wise uh advice that we need to uh make sure that if we're putting members of Congress in there to oversee this stuff the FBI doesn't walk in and say sorry you you you've seen enough you can't see the rest of this. That is just facially absurd. I yield back the chairman.
▶ 2:19:27Gentleman yields back. The gentle lady from North Carolina is recognized.
▶ 2:19:30Uh thank you, Mr. Chairman, and um and the ranking member for holding this really important hearing. Um I'm so glad that we continue to have bipartisan support particularly for the warrant requirement and thank you very much for uh for the amus requirement, which is something that I've worked on in the past.
▶ 2:19:53Um but as we're weighing this reauthorization of FISA and until we can get some of these safeguards that we want, it's very important that we use the previously created internal safety checks and guard rails and I am concerned that this administration has weakened them. So to maybe this responds to Mr.
▶ 2:20:18Royy's initial point, but um there was a requirement that the Office of Inspector General review the querying practices and they did file a report this past October which found that the FBI has made progress in reducing the number of non-compliant hearings, though not enough. We agree.
▶ 2:20:39Um but the inspector general was not able to conclude based on their limited time that the querying compliance are entire the problems are entirely in the past. So this really shows that we need to continue to have this oversight with the tools that we have until we can get stronger protections for the American public.
▶ 2:21:02So, Miss Guiton, the Privacy and Civil Liberties Oversight Board serves as an important oversight role, especially regarding FISA. The board has published numerous reports and recommendations about the different surveillance programs and released a report in September of 2023 about section 702 that contained multiple recommendations to protect the rights of Americans.
▶ 2:21:28But in January, almost immediately after he was sworn in as president, Trump fired the Democratic board members and the board now has one part-time member and lacks a quorum to begin new investigations or issue reports signed by the board. Could you tell us why ensuring the independence of this board is so important and why it's important for it to have a quorum?
▶ 2:21:57The Privacy and Civil Liberties Oversight Board is the only independent agency within the government that is charged with uh ensuring the protection of Americans civil liberties. It's a small board with a fairly small staff and a huge and absolutely vital remitt. Um, if you don't have the privacy and civil liberties oversight board doing its job, then all of the oversight that's coming from the executive branch will effectively be internal oversight that's sort of happening within these agencies.
▶ 2:22:28PLUB, as we call it, um, has been vital in bringing to light, first of all, how the section 702 program worked. If it weren't for the PCL's 2014 report, most of what we're saying today about how 702 works, we wouldn't be able to say. But PE Club managed to get that information declassified and put it out to the American people.
▶ 2:22:47Because of the PLUB's work, we found out in 2023 that the claim that warrantless backdoor searches were important for national security, the claim we had heard from the government was not true. That the government had only been able to identify a handful of instances where these US person queries had been useful. And in pretty much every case, they could have either gotten a warrant, consent, or invoked the exigent circumstances exception.
▶ 2:23:11It is because of the PE club that you uh had the tools that you needed uh last year to enact RISA and that you will have the tools that you need now um in reauthorizing section 702 this year. Now, if people on the PE club can simply be removed at will, um that will chill. First of all, there's no quorum, right? So, there's no PC club right now. Essentially, that's a problem. Um but unless Congress, it's not enough to just appoint people to PE club.
▶ 2:23:39the the independence of PC club must be protected because if members know that they can be removed if the president doesn't like the investigation that they are conducting or the results that they uh came up with then that is going to chill their oversight and we need them to be a robust oversight body. Um there was a provision in the PC club authorizing statute saying they could be removed at will. Congress removed that.
▶ 2:24:04So it seems clear um that they can't be removed at will and in fact there are lawsuits right now challenging their removal. But Congress should make that explicit and Congress should give uh should make very clear that members of PE club can only be removed for cause.
▶ 2:24:21Well, it's my great hope that at least in this area we um use our power and we have a check on the administration. And with that, I yield back. Gentle lady yields back. Gentleman from Virginia is
▶ 2:24:34I thank the chairman. I thank the committee for all their work on this important issue. Uh the constitution is under the jurisdiction of this committee and the fourth amendment is pretty clear. The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated and no warrants shall issue but upon probable cause supported by oath or affirmation and particularly describing the place to be searched and the persons or things to be seized.
▶ 2:24:58No ask to risk, no footnote that says but in except for this case or in in cases of you know national security or otherwise. Um let me just ask um our our Miss Griffin um under 702 the government is prohibited from engaging in reverse targeting. Can you describe what reverse targeting is and why it's problematic?
▶ 2:25:23Reverse targeting is when the government claims to be uh interested in the foreigner overseas, but in fact the reason the government is collecting those communication is because they are interested in the communications of an American who may be communicating with the foreign target.
▶ 2:25:40What penalties, if any, does section 702 levy against government actors that engage in reverse targeting or otherwise abuse the FISA framework? Well, right now there are internal accountability procedures that have been adopted by the FBI. Um, I don't think that they are public. They were required by RISA. Um, I don't think that they have been made public and uh there there's no public information. I I'm not aware of of anyone having been disciplined for
▶ 2:26:07Do we have an estimate of the volume of Americans communications that have been collected as part of section 702
▶ 2:26:13Um, the government has refused to provide that estimate. members of Congress have been asking for it since
▶ 2:26:19And has the FBI ever estimated the
▶ 2:26:24to your knowledge?
▶ 2:26:26Not to my knowledge. I I I'm not sure that they uh are particularly interested in in
▶ 2:26:32that number.
▶ 2:26:33As you've discussed, uh according to the ODNI report, queries uh by FBI were up to 2.9 million in 2021. 2.9 million uh declining to 119,000 in 2022, 57,000 in uh between April 2024 and April 2025, down to 9,000. Uh can you uh estimate as to why there were such a large number of queries in 2021 and why that number has come down dramatically in recent years?
▶ 2:27:02Yeah. Um what we've been told uh by the FBI is that there were uh a lot of batch queries or perhaps even just one particularly large batch query. That's when a bunch of uh a large number of individuals are sort of queried at the same time under the same rationale uh relating to a potential cyber security threat. Um that's it's still hard to quite figure out the math and and how they got to 2.9 million uh with that.
▶ 2:27:30Um the argument for why the the queries have come down is because there has been um an effort to put more oversight in place. Um and I think that that is and there's been a lot more attention,
▶ 2:27:44more sunlight.
▶ 2:27:45Exactly. There's been a lot more paid and and certainly the reauthorization was coming up and so we we saw a decrease. But I would just want to remind you that that last number 9,000 that's the number of known and counted queries. We don't know the actual total
▶ 2:28:02All right. Let me um go to Mr. Sher um and talk about RISA. Uh when we passed RISA, what would you say were the most important reforms that RISA implemented? Certainly one of the most important I think was the provision allowing uh the the chairs of relevant committees on in in this body and in the Senate to to be present in fisc proceedings and and to be able to understand what's happening in that body.
▶ 2:28:30Uh I I don't know how you provide oversight to an institution like that unless you could at least attend its proceedings once in a while. I we we're all um cleared. So would it be problematic to say or the designate of the chairman on the committee?
▶ 2:28:44Uh that that would be a wonderful addition I think
▶ 2:28:47help us spread spread the burden wouldn't you say?
▶ 2:28:50All right. I think
▶ 2:28:52and the accountability
▶ 2:28:53it's a small room but I think there are many of us uh on this committee who would be willing to go down there and spend some time in there. Um and and let me just say uh as reporting requirement of RISA the O DOJI released the report which found that the reforms implemented have quote significantly reduced the number of non-compliant identified um end quote.
▶ 2:29:16Now what for further reforms I mean to reduce this number of non-compliant queries down to zero is a warrant requirement necessary? I think so. And and even even with a warrant, there will there will still be some mistakes made made by the courts, but the numbers going to the numbers going to go down very substantially if you have an independent judge looking at these requests.
▶ 2:29:43Thank you.
▶ 2:29:44Yield back.
▶ 2:29:45Gentlemen yields back. I I I believe the law says we can designate a staff person to go u Yeah, but I know we should we should frankly work on making sure it can be a member and Mr. climb would be great because he sits on this committee and also the intel committee and that would be I think ideal. Um if if I could real quick before I recognize the gentle lady from Vermont,
▶ 2:30:06what do we think the number is? It's not 9,000 and we think they got this other route that they're taking. What do we think the number is? Anyone hazard a
▶ 2:30:14I think the number is very close to what it has been historically. I think they eliminated the girlfriend searches and things like that, but they I believe it's a product of
▶ 2:30:25identification. So, and still way high.
▶ 2:30:28I think it's way way up there and they've changed the way that they
▶ 2:30:31because the the impression is given is it was 200 and some thousand or I get there some hundreds of thousands and now they're like they're pounding their chest like oh we got it down to 9,000. I mean 9,000 is still a concern but we think it's we think it's much higher. Is that is that fair to say?
▶ 2:30:45Probably. Yes. And and is Mr. Tolman right? That is probably where it was.
▶ 2:30:50I I I would h I would hesitate to to say simply because I mean if if it turns out that that's not the case, it doesn't change my opinion 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 below it, suddenly everything's okay. But I but I do want to mention that, you know, this system, system one or the the advanced filter function, that is one instance we know where the FBI basically decided that something wasn't a query and that it was instead, I guess, a filter. Yeah.
▶ 2:31:16Um, I think an important question for you all to ask is whether there are other such ways of that they're obtaining US person information that they consider to be a a filter or a sorting rather than a query because if that were to, the number could be even
▶ 2:31:28Yeah, I I apologize,
▶ 2:31:29Mr. Chairman. When when the FBI was being criticized that violent crime was on the rise, they changed the way they collected violent crime data.
▶ 2:31:38Fair point. Very fair point. Good point. I'm sorry. And I recognize LA from
▶ 2:31:42Thank you, Mr. chair and thank you to all the witnesses for your time. Uh, Miss Goyin, thank you so much for being here. I want to break this down in simple terms for the millions and millions of Americans who have never heard of FISA, who who have no idea when we talk about the Foreign Intelligence Surveillance Act, what what we're talking about. So, if you'll indulge me, I'd like to walk through it piece by piece. When we talk about communications data, we're talking about texts, we're talking about emails, uh, phone numbers, DMs, that kind of thing. Is that right?
▶ 2:32:12Sort of any uh it's actually any information that can be acquired under section 702, any foreign intelligence information of any kind. Um so it could include other types of data. Um I think that the focus tends to be on communications because communications are some of the most uh private um sort of information, okay, that we have in exchange.
▶ 2:32:35Um and and section 702 allows the government to take huge sets of data from companies like Verizon or T-Mobile as part of its stated mission of trying to track down terrorists and other security threats. Is that it's no that's actually there's sort of two separate issues there. One is sort of this data broker loophole by which the government buys data under no statutory authority whatsoever. Right. So that's not under FISA. It's not under section 702.
▶ 2:33:03It's just they do it because they think they can because they've decided they can and so uh and trying to change, right?
▶ 2:33:09I think that's a really important
▶ 2:33:10Yes. Yes. 702 there is a target um and they are collecting information um of or concerning that target and so they're collecting the targets communications data on the target. Um the issue of course is that foreign the foreign target doesn't have to be suspected of any wrongdoing and all of that foreign targets communications within with Americans would be swept up as well and and so that data may also include Americans personal private information
▶ 2:33:40there there is a large amount and the the pecloud used that word we don't have an estimate the government refuses to give us one there is a large amount of Americans personal data information communications that
▶ 2:33:51I I know This is something that Vermonters care deeply about is is who's protecting their personal private information. I'm sure that's true for many of us on on this committee. So, okay, now here's the rub, right? So, there essentially there's this huge secret database containing all kinds of information on Americans and and non-Americans as you said and the government says it can search that database without a warrant. That's what they're claiming. Is that right? Yes.
▶ 2:34:21Okay, so let's say my emails were caught up in one of these data sets, um, landed in the database. Could the FBI search the database for Becca Balant and access those emails without a warrant?
▶ 2:34:35Yes. And this is what we have been referring to today as a kind of a backdoor search.
▶ 2:34:42Is that correct? So, has section 702 ever been used to spy on a member of Congress? In other words, has the government used a backdoor search to find data on elected officials?
▶ 2:34:53The the government has run backdoor searches on members of Congress. We don't know whether any data was returned, whether they use that data, but they have attempted to find and use uh data uh of members of Congress. So, obviously deeply concerning these backdoor searches, deeply concerning. um who is vulnerable, you know, are regular people vulnerable?
▶ 2:35:19This is the the thing that I want Americans outside of this committee, outside of Congress to understand. Is anyone vulnerable to this? If you communicate with foreigners overseas, you are vulnerable. If you communicate with foreigners overseas, you are vulnerable to this backdoor
▶ 2:35:36Yes. I mean the the government has to have a foreign intelligence purpose for the section 702 program but foreign intelligence is defined so broadly that it can include information that simply relates to the US conduct of foreign affairs. So essentially any person with an email account or a cell phone could be a target of government surveillance by our government.
▶ 2:36:02And there's no requirement that the government get an actual warrant to spy on our personal communications. Is that is that what we're trying to get at here? Yeah. So, the government would say that you're not a target because the target was a foreigner overseas. But, of course, if they are then looking for and using your information, that kind of feels like targeting to me. So, it becomes a bit of a semantic slight of hand.
▶ 2:36:24I agree. And what would happen if we just let section 702 expire? I'd be concerned about that for a couple of reasons. I'd be concerned first of all that the government the government would try go ahead and obtain the same information in other ways that actually come with less oversight.
▶ 2:36:45um whether it's you know buying up data from data brokers whether it's other forms of surveillance under executive order 123 and there are even fewer protections for Americans privacy and civil liberties you in those uh context than than under section 702.
▶ 2:37:03Um, also I would point out that the government actually has um made a a case that uh section 702 um is valuable for national security in so far as it permits the uh collection of foreigners communications. And so uh the the foreigners communications that have been obtained have been shown um to have national security value.
▶ 2:37:27Uh what the government hasn't shown is evidence that warrantless searches for Americans communications have has had any significant national security value.
▶ 2:37:36I appreciate it. I see that my time has expired. I just want to say, you know, one of the things that I try to do in this committee is really try to break it down for people outside of these halls, these powerful halls of Congress to explain why it is that we do the work that we do. Again, I appreciate all of your time and I yield back.
▶ 2:37:54Uh gentlemen yields back and you did break it down. Everyone is in there. They can't police themselves. So much so that they actually search members of Congress, the bo individuals in the body responsible for setting their budget. If that's not a problem, I don't know what is. The gentleman from Alabama is
▶ 2:38:12Thank you, Mr. Chairman. Mr. Chair, what what is the purpose of woods procedures? As I understand it, the Woods procedure procedures are are they're an internal mechanism in the Justice Department and the FBI to try to be sure that that there's adequate vetting before a warrant application is filed in the in the FISA court.
▶ 2:38:35You think the which procedures should be codified given that the FBI is failing to follow their own procedures?
▶ 2:38:41I'm I'm not sure codifying them would be would be that useful. I think much more useful would be to adopt the kind of amikas participation position uh mechanism that we've discussed earlier. So what other kind of procedures are in place to protect against malign use of the FISA? What what what would you recommend? You mentioned the AMA but uh are there other procedures in place that should be protecting the American
▶ 2:39:06Uh with with respect to the title title one process I I think the AMA's provision that we've discussed is the most useful. If we look at FISA more broadly and include 70 section 702, then I think the the other three reforms that we've discussed here today would be would be extremely important. A general warrant requirement uh before before the FBI can search the the communications of Americans for one thing.
▶ 2:39:34um tightening up the uh the electronic communication service provider definition that was unfortunately broadened in the last version of the of the reauthorization. Tightening that up so that it excludes um really so that excludes any entities other than data centers, which apparently is what the uh the FBI was trying to ensure that they could uh that they could get at there.
▶ 2:40:00Um, there's there's just no reason to to basically draon churches and small businesses into conducting surveillance on behalf of the NSA and the FBI. Um, and then closing the data broker loophole so that so that if the government wants to buy data from data brokers that that contains lots of personal data about individuals, uh, before they can search that data, they have to get a warrant to do that.
▶ 2:40:28Just like we're proposing that they have to get a get a warrant in order to search the 702 database.
▶ 2:40:33I'm I'm going to change gears on you a minute, Mr. Shear. Um you represented Carter Page and his lawsuit against the FBI, correct?
▶ 2:40:40Um during Crossfire Hura investigation, Mr. Page actually reached out to the FBI and offered to be interviewed. Is that
▶ 2:40:49And offered to help them.
▶ 2:40:50Gotcha. Why did uh why did he reach out to the FBI, I guess, would be the first Well, he he was already helping the CIA with concerns that they had about things going on in in Russia and and when he learned that there was some FBI interest, I think he he felt like um you know, maybe I can be helpful to the FBI as well.
▶ 2:41:12Why do you think they turned down the opportunity to interview Mr. Page? Well, I think uh I I think the independent investigation of that uh of of that investigation showed that the FBI was uh or elements in the Justice Department were were trying to investigate the incoming administration and they were trying to create the appearance of a tie between the incoming administration and Russia.
▶ 2:41:39and Carter Page was, you know, was the one staffer who had some wellestablished contacts in Russia and so they chose to focus on him.
▶ 2:41:47Was that part of the reason they went after General Flynn, too? You think the whole Russian collusion narrative was part of that or was that a separate investigation? Was
▶ 2:41:55I think it was closely related?
▶ 2:41:57Good. Thank you. Thank you. Um, Mr. Holman, I I mean, Mr. Tolman, I'm going to hit real quick with you. Um, what type of information do law enforcement agencies what are they purchasing from data brokers and what are they using it
▶ 2:42:13Well, as as you know, there's so much data that is collected that from outside the government that uh there's really no limit to what they can purchase that can be obtained through online use, through emails, through through other data points, financial institutions. They're really, if if you think about it, it could be in its in its worst form, the ability to collect everything that they can't collect under a warrant without a
▶ 2:42:42Very dangerous, I would assume. Correct. For personal privacy and certainly for our amendments to protect those privacies. Um, you know, in 2023, the FBI admitted to buying precise geolo geoloccation data derived from mobile phone advertising. What should Congress do about this?
▶ 2:43:01You know, I I became aware um of individuals, for example, that traveled um to Washington DC, were not traveling on January 6 to the rally, were not entering the the capital. They simply were traveling. All of their location was obtained, no warrant. Um, so Congress has to recognize that any thought that internal regulation is going to control the use of power by the FBI is going to fail.
▶ 2:43:31Does that get back to the Fox Garden and the Hen House as you corrected earlier?
▶ 2:43:35Thank you, Mr. Chairman. I'm running out of time, so I'll yield back. Thank you. Thank you.
▶ 2:43:38Yeah. Not only their location, they got their bank records. They got what they bought. They overlaid that if they if they banked at the Bank of America, they overlaid that if they ever purchased a firearm. So you well well well said. Uh gentleman from Illinois is recognized.
▶ 2:43:52Thank you. Uh Chairman Jordan uh this hearing uh
▶ 2:43:55oh wait could with gentleman hold for just one second.
▶ 2:43:58I apologize. You guys have been going two and a half hours. If any of you need a break, make sure we'll give you a break and we'll we'll keep rolling. But I I just thought that because I just took a break. So uh but the gentleman's recognized you you get your full time.
▶ 2:44:09Uh thank you uh Chairman Jordan. This uh hearing of course uh marks the start of negotiations over the reauthorization of FISA section 702. At a time when our civil liberties are under assault and the public lacks trust in government, the stakes could not be higher. As my colleagues and witnesses have pointed out, section 702 has been repeatedly abused under both Republican and Democratic administrations.
▶ 2:44:37has become a tool of mass domestic surveillance and an end run around the fourth amendment as well. It should be clear by now that we cannot trust the executive branch to regulate itself. This is a crucial moment for Congress to assert itself and its constitutional authority to protect our constituents from warrantless s spying.
▶ 2:45:00It's clear to me, it is not clear to me that section 702 can ever be reformed to the point where it doesn't threaten our constitutional rights. But if Congress is going to reauthorize it, then we must insist on major changes.
▶ 2:45:18That means requiring a warrant for US person searches, closing the data broker loophole, reforming the FISA court and narrowing the EC uh SP definition, and requiring more transparency and oversight. It also means getting rid of the immigrant vetting provision that was included in uh RISA.
▶ 2:45:44This over uh broad law requires section 702 quering procedures to quote enable the vetting of all non US citizen persons who are being processed for travel to the United States end of quote. This is a major separation expansion rather of government surveillance powers.
▶ 2:46:04Instead of targeted surveillance aimed at specific national security risks, the intelligence agencies will now surveil over 10 million people, non US citizens entering the country each year without suspicion.
▶ 2:46:23This will also affect the privacy of Americans whose communications will be accessed in much higher rates and subject to further abuse by agencies that have shown complete disregard for our civil liberties. It's not just progressive Democrats who oppose this provision. Chairman Jordan opposed it and spoke against it on the House floor, highlighting that it would quote authorize the surveillance of a whole new category of individuals end quote.
▶ 2:46:52Ultimately, 80 Republicans voted against it. Miss Scotian, uh, thank you for being here today. Can you speak to the potential harms of the immigrant vetting provision and the significance of the bipartisan opposition to it?
▶ 2:47:07Sure. So, ordinarily, in order to conduct a query, the rules for the agencies require them to have uh to reasonably believe that the query will yield foreign intelligence. That's a very low bar given how broad the definition of foreign intelligence is. And yet despite how low the bar is. Uh unfortunately a provision that was adopted last year in RISA and again as you mentioned uh the chairman opposed it most people in this room I think opposed it. Um but it was it was still adopted.
▶ 2:47:37um that allows and in some ways uh it basically requires agencies to have procedures in place that permit suspicion suspicionless queries for people who are seeking to travel to the United States uh whether it's as a tourist or whether it's on a work visa or a student visa or whatever the case may be even if none of the many vetting mechanisms that the government already uses has turned up any reason to worry about these individuals Um
▶ 2:48:07this is you know completely unnecessary. People should be able to travel to this country to study and work in this country without turning over their personal communications to be read by the government. There are plenty of vetting vetting mechanisms in place to ensure that they don't pose uh a threat to national security and there is an impact on Americans privacy on US persons privacy as well. Uh partly because these are totally suspicionless searches.
▶ 2:48:35So to the extent that these queries return communications that include Americans as participants, these are very likely to be completely uh innocuous conversations with no foreign intelligence in them and that is an intrusion on these Americans privacy. Also, as we've already seen, there have been significant compliance problems with this travel vetting provision and including uh multiple queries of US persons under this authority.
▶ 2:49:02Thank you so much. uh you're underscoring that this is not a partisan issue and of course I look forward to working with Chair Jordan and other members uh and other parties to ensure that this provision is not included in the reauthorization of section 702. Thank you and I yield back. Mr.
▶ 2:49:19Gentleman yields back. The gentleman from New Jersey is recognized.
▶ 2:49:23Thank you chairman. it's good to see especially in a committee where we debate a lot, we argue a lot, we have different viewpoints on quite frankly just about everything that we are on by and large all of us on the same page with this. It is heartening and it is good. Um FISA the misuse of FISA was truly I believe one of the low points of our republic. what happened invading people's personal lives.
▶ 2:49:52If there's anything, and you all know this, you're smarter than me. Historically, that this country, that this republic was supposed to stand for was that individual freedom and individual rights and not to have the government because of political reasons or social reasons or religious re for any reason invade our privacy, invade our family, invade our lives.
▶ 2:50:17So we had hearings as you all know we were all here most of us who were here at the time uh really dug deep. I want to thank the chairman as well. He never gives up. We we are going to get this done. We had hearings and there was some disagreement not so much within this with among us but more the the disagreement was with other committees and other individuals in Congress. So here's my question. This is what I want to get down to. We did legislation. It was an improvement.
▶ 2:50:47It was a compromise. Uh that's all wonderful. We want to still do better. So if you could and we'll start with Mr. Tolman, just go down the line relatively briefly. What has worked well? Where have we done a good job? And by the way, if you think we haven't done a good job anywhere, you can say that. Nobody's going to get mad. Uh and where are we vulnerable? Where do we still have problems? Where do you worry at night that we are going to lose our precious freedom? Mr. to tell me
▶ 2:51:14the the first thing that comes to mind that you did well is you won the public debate on this issue. It was, you know, it used to be very siloed, limited voices that were were shouting this is a this is a concern and it's going to violate citizens rights and they're going to abuse it. And it was not believed and the public was not aware. this body and I give this house the credit, not the Senate.
▶ 2:51:43I give this body, this chairman and others that turned the tide in the public debate on this and the awareness. And that to me is the battle. I would say the thing that keeps me up at night is this. I would like our FBI to get back to finding bank robbers and less intelligence gathering. And until that happens, we will always need robust guidelines to rein them in.
▶ 2:52:12Well, thank you for the question. Um, we've uh we've discussed earlier four specific reforms that I think all of us all of us agree on that uh that need to be made. One one of those is fixing fixing something that happened with with Rissa, which is the overexpansion of the definition of electronic service provider uh which was expanded.
▶ 2:52:33so much uh that it now includes um many small businesses and even churches and other institutions and that that needs to be paired back and limited to its original purpose which is to allow the FBI to reach data centers. Um so that's one important reform. We s we've also talked about closing the backdoor search loophole in uh in in FISA that allows uh that allows the government to to search uh Americans information.
▶ 2:53:02they're some of their most private information without a warrant. We've also talked about closing the so-called data broker loophole which which allows uh government agencies to essentially buy their way around the fourth amendment just by buying data from uh from data brokers. Um and then there's a there's a real need still there there were some useful reforms made in recent to to oversight of the foreign intelligence surveillance court.
▶ 2:53:29Uh but there's a there's an additional important reform that we believe needs to be made which is uh which is to expand the AMAS program within within that court so that independent uh privacy experts are brought in in sens in sensitive cases uh to advise the court and and act as kind of a counterweight to the FBI and the DOJ who when they try to seek warrants to have somebody else in the room who has a responsibility for protecting Americans privacy.
▶ 2:53:58generally uh to ensure that the FISA court does that.
▶ 2:54:02thank you. Um I only between the two of you have 17 seconds if you can really
▶ 2:54:09Sure. I'll be real brief. Um second everything that has been said. I think that this is critical to continue the conversation because as I mentioned in my opening statement, this is a crisis and faith in the government in in a key agency uh and agencies that are responsible for protecting us and that's why if we get these reforms done that can go a long way towards fixing that
▶ 2:54:26Thank you. I think there were some helpful reforms in RISA. I think the main problem is it just didn't go far enough. It didn't go far enough because there wasn't a warrant requirement. There are a couple of places where Reich RISA took some steps backwards. That includes the ECSP provision. It also includes a couple of provisions that actually weaken Amiki that we haven't talked about yet and maybe we can talk about them later. Uh but that's yeah
▶ 2:54:46in plain vernacular though the FBI still needs a makeover. We still need we can't give up on this. I I chairman I know I'm over just for a second. I love old mystery shows. Old mystery and I was watching an old mystery. It dates back to the 1940s and they're talking to the FBI and how they overreached and were punishing somebody because they disagreed with something they did. And I was sitting with a friend of mine. He said, "God, that would never happen." I said, "Boy, are you wrong? That show was right. Thank you." I yield back.
▶ 2:55:15To the gentleman's point, I I I said this earlier. I do believe it's accurate to say of the $12 billion budget that the FBI has, over half that budget is spent on surveillance or surveillance-like activities. And I believe over half the personnel to Mr. Tolman's point, you want them going after the bad the bank robbers and the drug deal, you know, you want them those kind of folks versus what what seems to be the focus uh the last several several years. The gentleman from Florida, the new ranking members recognized.
▶ 2:55:40Uh thank you, Mr. Chairman. Um
▶ 2:55:44will the gentleman yield
▶ 2:55:45for a second? Sure.
▶ 2:55:47I was kidding. Go ahead. I I was really interested in what was about to happen. You fool me too, Brad.
▶ 2:55:56Well, I was going to say, Mr. Chairman, thank you. And, you know, I sit at the end of the day as I'm I'm the last Democrat here. And so, you know, many questions and comments have already been made on this important topic uh which is FISA and I am absolutely for FISA reform. But, you know, Mr. Chairman, when I think about FISA, you know what I really think about? I think about affordability. Uh and the hoax of affordability. Okay?
▶ 2:56:21Because you know, and perhaps someone should tell the president that every time he says affordability is a hoax, like another Democrat like sprouts out of the ground and like lands in the House of Representatives and eventually we'll get a gavvel. Uh, and if he doesn't like saying affordability, that's fine. We we can come up with another word. If he doesn't want to say that things are unaffordable, we could just say things are expensive.
▶ 2:56:51We we could agree to just say that instead. We could just say things are it's expensive instead of I really want to talk to the person who puts the words into the teleprompter because this is like a Ron Burgundy situation. Like every time he says affordability is a hoax, he will
▶ 2:57:11a gentleman yield
▶ 2:57:12in a second. Let me do this and then I will yield. But like every time he says affordability is a hoax, I mean it's like saying go f yourself San Diego. Okay. Or or is it San Diego? You know, scholars say the translation was lost long ago. Like I I don't like there's just no there's no partisanship on the grocery store bill. I know what you're saying, Jared. Be honest. Tell the other side of the coin. Okay, gasoline prices are down. Right.
▶ 2:57:42See, I'm being fair. Gasoline prices are down and that's great. Getting energy prices down is important, but you know they're not as down as he much as he's projecting. Uh but the problem is you can't eat gasoline, right? Can't eat gasoline unless of course Kennedy proposed that as some sort of way to get rid of COVID. Okay. And and and what I would say is is that even though we all subscribe to our own set of facts these days, we do.
▶ 2:58:10The only thing is that still is a constant is that 2 plus two still equals four for now. Okay? And so, you know, when you go to the grocery store and you get the bill, there's no partisanship on the bill. There's no partisanship on that bill. There's just prices. And so, you can go to all the stadiums you want. You can fill all the stadiums you want.
▶ 2:58:31And you can talk about, you know, this being a hoax all you want, but as long as people are paying double and triple for groceries and rent and health insurance and home insurance and transportation and car payments, it won't work. Okay? And you're going to say, Jared, how do you know it won't work? We tried it. We tried it for a whole year during the election. The economy is great. Stock the stock market is great. We try to tell people how to feel and it didn't work.
▶ 2:58:59In the weirdest plot twist ever, I can't believe Trump is copying your favorite president, Joe Biden. I feel like any moment Trump's just gonna be like, "And Trumpomics is great." I I mean, it's just wild. Like, I I feel like Howard Lutnik is about to come on television and talk about how crude day prices are coming down, right? And so, look, you know, let me just say this is why I believe in FISA reform, okay?
▶ 2:59:27Um, and now I will yield to your question.
▶ 2:59:30Well, you almost started to answer for me. So, I love you, man. You're a great guy, great congressman.
▶ 2:59:36But that doesn't have a damn thing to do with what we are talking about today.
▶ 2:59:40I know what But 50 people already spoke and asked all the questions and
▶ 2:59:45The subject matter today is really, really important. I get it. I get the politics. I get the affordability. No. Well, affordability is probably slightly more important,
▶ 2:59:54but but this is people's personal freedom. Let me tell you, people died multiple times in many wars right back to the Revolutionary War. So, people could believe what they want to believe, say what they want to say, believe in a
▶ 3:00:08We're claiming my time quickly and then I'll yield back. Listen, don't get me wrong. The Revolutionary War is very important, but I think most Americans care about what they're paying for goods today rather than what happened during the Revolution. gentleman would yield again. I will yield back. They do. They also care about their personal freedom. They they care if their daughter or son or brother or sister is being surveiled. If they're losing their freedom, if the judicial system is going out to hurt them because they different. It's a big deal and that matters. That's what we should be doing today.
▶ 3:00:36Reclaiming my time. I I know they do care about that, but if they can't pay their rent and they can't feed their family, the rest of it is less important. And so that's why I brought up affordability because quite frankly, it's not a hoax. It's a real thing. just like FISA is. And you know, we're just not having hearings on that. And you know, and I'm still waiting for Pam Bondi to come back. So, look, you know, we got like a week left. Well, hope the chairman's got some of that.
▶ 3:00:59No, I'm just
▶ 3:00:59I didn't know if you had an announcement. I yield back, Mr.
▶ 3:01:02No, I was I was going to cut you off. Uh but not until you had your full five minutes. Uh uh
▶ 3:01:07and I appreciate my placing on the committee for
▶ 3:01:09Yeah. And and Miss Bondi is coming. Uh she was scheduled and then we had this 43 day month and a half shutdown by the Democrats. So she wasn't able to be
▶ 3:01:19So we'll uh
▶ 3:01:20Oh, and then the speaker furled us for 45 days. I had never been furoughed before, by the way.
▶ 3:01:24We will.
▶ 3:01:26We will uh we will have her. The gentle lady from Wyoming is recognized.
▶ 3:01:31Classic Democrat ploy. deflect attention from every single thing that he described about affordability being caused by their policies and then turning around and and and attempting to blame us for the problems that they created with the housing the increase in housing costs, the increasing in food costs. We're fixing those things that the the policies that they implemented and I have every expectation that we will see a decline in some of those prices next year.
▶ 3:02:00But I actually want to talk about why we're here today because it is a very important hearing. Uh I have long been a proponent for including sunsets in government programs and authorities and I believe we commit legislative malpractice in a lot of the things that we do when we don't include sunsets. I hold this principle to be as especially true when dealing with technology and technological advances which always seem to move much more faster much faster than government.
▶ 3:02:27and uh we could evolve uh when we're drafting our bills. FISA is a perfect example of this issue since its creation in 1978. The scope of FISA authorities has continually grown as has its abuses as the intelligence agencies we oversee push their surveillance abilities beyond these statutory allowances. That issue today is compounded by new technologies and the commercial availability of data. Today we as legislators face two unique challenges.
▶ 3:02:56First, reforming section 702 to correct past abuses, which for some appears to be a controversial exercise in and of itself, although I don't see that as to why it should be controversial. But second, we also need to update federal laws and protections to account for the pace of technological advancement. And here we are.
▶ 3:03:17We're actually talking about and working on reforms with the chance to vote on those reforms in 2026 for the second time in my two terms in Congress, which I think is is is a really good uh deal. Why? Because Congress was wise enough to sunset these important authorities to aid in our ability to consistently review them. Mr. Cherniski, uh technological advancement and the private sector always seem to move faster than the government.
▶ 3:03:45Does maintaining these two-year reauthorizations of section 702 provide a better chance for us to keep up with the pace of those changes and and also to address any new violations that we may see?
▶ 3:03:57Thank you for the question, Representative. And I think that sunsets on a shorter time frame are an amazing tool for you and this committee more broadly speaking to assert its authority and its oversight function over these critical agencies. We want them to be able to go and do their national security mission to keep this country safe. But at the same time, as you documented, as these witnesses have, you know, documented, there is a litany of abuses that FISA has enabled, and what better way to make sure that that is on the decline, if not hopefully ideally eliminated, than by having, you know, these these shorter reauthorization
▶ 3:04:27And I've been an advocate for the warrant requirement and some of the other uh changes that we have made, some of the other modernization and and the the uh safeguards that we've put in place. You've been asked an awful lot of questions today. What I'd like each of you briefly to do is to describe for me for us if you see any other reforms that we should be making when we re uh when we revisit this in April of next year. Mr.
▶ 3:04:51Tolman, starting with you, have we touched on all of your proposed changes or do you have additional ideas that you would like us to consider?
▶ 3:05:00With respect to 702, we've we have addressed them, but with the FBI, I think we have work to do. I think shifting their mission back to uh interdiction of drug and violent crime should be their central focus and not the gathering of intelligence and until then we will see abuses that we have to reign in.
▶ 3:05:20Just very quickly I don't know if you were aware but at the beginning of the 118th Congress when we were doing the select committee on weaponization of the federal government we had a former FBI agent who came and testified and he talked about how the mission had been shifted after 911. And I think you touched on that briefly today as well and I agree with you. We need to get back to a pre 911 mentality with regard to the FBI. I think it's important and I appreciate your advice in that regard. Mr. Sher,
▶ 3:05:49thank you for the question. Um, if I could add one thing to the four specific reforms that I mentioned earlier, I would add the NGO fairness act, which I know that there this committee has already has already passed and reported out, but perhaps that could be attached as part of the 702 reauthorization uh bill because it's certainly closely related to the items in that bill. So, I would suggest adding that.
▶ 3:06:13Thank you, Mr. Chinarski.
▶ 3:06:15Yes, I would second uh Mr. chair's point of adding in the NDO fairness act into that and and everything else the four core ones that we mentioned too.
▶ 3:06:22Thank you. And Miss Guyine,
▶ 3:06:24if there was one thing I would would add to those four things which I agree with, uh it would be closing the backdoor search loophole for executive order 123
▶ 3:06:33Okay. Thank you. I appreciate it. And with that, I yield back.
▶ 3:06:36Gentlemen yields back. If the gentleman from South, we're going to just flip if we could. Mr. Growthman has to go. We'll go Mr. Growthman then we'll come right to you, Mr. Fry. So Mr. Growthman is
▶ 3:06:44Thank you. Uh Mr. share when the FBI ask for asked the FISA court for a title one warrant to surveil someone in a politically sensitive case. Let's say uh a member of Congress, an employee of a presidential campaign has actually happened to President Trump. Uh this all takes place in a secret proceeding, Generally speaking, is there anyone in the proceeding advocating for privacy rights in the
▶ 3:07:15No, currently there is not. And and that's a big problem. And I and I think that was uh that was a process which if it had if it had been in place during the Carter Page investigation likely would have prevented the shenanigans that happened there. In fact, it could well have deterred the FBI and the Justice Department from even seeking that warrant at all.
▶ 3:07:35Can you give us a suggestion what to do about it?
▶ 3:07:38Yes. Um I I I think the best solution is is to adopt something along the lines of the Lee Ley uh reform that was adopted by the Senate about four years ago by a vote of 77 to 20 or something like that. and and what that reform would do is ensure that there is in in particularly sensitive investigations that there is an amicus in the room.
▶ 3:08:03Um, and as part of the process when the Fisk considers granting a warrant in in those kinds of cases. Um, and so it would be somebody who's trained in privacy, somebody who has a full security clearance and and can serve as a check, a counterweight if you will, uh, to the Justice Department lawyers who of course will be seeking the warrant, but somebody who can be there and knows enough about the process to be able to to help the Fisk judges ask the right kinds of questions to be sure that there aren't any shenanigans going on.
▶ 3:08:34Okay. You've spoken about the uh data broker loophole where where federal agencies ranging from FBI, the IRS by geoloccation, internet search and purchase history and other sensitive information about Americans. All without a warrant or any reason to believe most these people have done anything wrong.
▶ 3:08:54As we consider section 702, a surveillance authority that has been repeatedly abused by the FBI, why is it important to also look at other government practices like data purchases that v violate Americans constitutional privacy rights?
▶ 3:09:11Well, thank you. Thank you for that question and I I think you're absolutely right that uh that purchasing data uh can be an effective way currently uh for agencies to do an endrun about the four around the fourth amendment and they shouldn't be allowed to do that. uh whether or not they're allowed to purchase the data, they shouldn't be allowed to use it to surveil Americans uh without going through the same warrant process that we've been talking about with respect to the section 702
▶ 3:09:42Are there any procedures in place now to protect against the malignant use of
▶ 3:09:47from the malignant use of FISA?
▶ 3:09:49Malignant use of FISA. Yeah. Well, there there are some procedures in place and some that were enacted by uh by this body a couple of years ago that are that are that are useful and important, but there are a number of others that need to be added like the warrant requirement for backdoor searches.
▶ 3:10:04Are there any consequences for FBI agents that conduct improper searches? I I understand there are potentially some administrative consequences that they can they can lose their security clearances if they're found to have violated the department's own rules.
▶ 3:10:23Have they ever been used?
▶ 3:10:24Uh not that I know of.
▶ 3:10:26Okay. How did the FBI allow such a profound breakdown in internal communication and verification processes that investigators failed to properly report Carter Page's statuses and operational contact information they already possessed, ultimately enabling an attorney to alter documentation and resulting in nearly a year of unlawful surveillance.
▶ 3:10:50Well, the the independent councils who investigated that that whole sorted history concluded that it was not just an innocent mistake.
▶ 3:11:00Okay. Um Mr. Tolman, we'll try to give you a quick question at the end. Uh there are reports indicating that some agencies are spending tens of millions of dollars on multi-year contracts to purchase sensitive data on American citizens. Can you elaborate what problems this poses?
▶ 3:11:18Well, first and foremost, if if the internal guidelines to help prevent abuse become effective, the FBI's response is to not to not stop wanting to get that information. Instead, they've pushed it out to purchasing that information. And it's the tip of the iceberg. If they expand that program, there's no end to what they can get without a warrant.
▶ 3:11:47Okay. Thank you very much.
▶ 3:11:50Gentleman yields back. We have about 20 more minutes. If that's that's good, we'll we'll just we'll just keep on moving the
▶ 3:11:57Oh, does someone need a break? two minutes.
▶ 3:12:03I understand. We will take a uh you can take a break
▶ 3:12:08and if your questions are going to the the gentle lady, we'll we'll hold. If not, we'll let you, Mr. Fry, continue with the three remaining witnesses.
▶ 3:12:15We'll move around. We got a lot of questions, so
▶ 3:12:17All right. All right.
▶ 3:12:19Thank you, Mr. Chairman. Um Mr. Chair, would you agree that the Woods procedures serve as a good faith oversight safeguard and that obstructing them in any way uh removes and undermines public trust in the FISA I'm not proposing that that they be removed or obstructed. Um, if they if they work properly, then they serve a useful function, but they're no substitute for Congress's uh playing its role in ensuring accountability.
▶ 3:12:50But don't but don't but but do you agree that they serve as a oversight
▶ 3:12:55And so violating them by some government official would would undermine public trust in what the what the government is
▶ 3:13:01I'm sorry I misunderstood your question. You're right. violating them would undermine public trust. I agree.
▶ 3:13:05Thank you for that. Um, Mr. Tolman, during Crossfire Hurricane, FBI attorney Kevin Kleinmith altered an official document used in a FISA application enabling the government to illegally surveil Carter Page for 11 months. Kleinmith ultimately received 12 months only 12 months of probation. Do you believe that that's sufficient punishment for his uh his violation?
▶ 3:13:31It it serves us no no deterrence and and deterrence is the predictability of being held accountable.
▶ 3:13:38Well, that was my next question, too, which was to the extent that you you didn't think that it was sufficient, would would that uh would that be an an actual deterrent for other people seeking to violate uh seeking to violate FISA? Um, and would it are there additional avenues that exist to hold the FBI accountable in lie of that?
▶ 3:14:00There there really are no no avenues in in fact the ethics investigations that would be conducted are all handled inhouse and subsequently in any solicitor general or office of inspector general that would actually attempt to investigate it. They're limited in that they can't themselves bring any criminal action. So I would say there's no current deterrence.
▶ 3:14:25How would we increase that deterrence? Well, certainly not relying on the courts and a Washington DC jury to actually administer um you know
▶ 3:14:39Mr. Tolman, you are you saying that Washington DC doesn't have all the answers for the American people?
▶ 3:14:45I I think that's exactly right and I think this is why Congress is so important right now.
▶ 3:14:50Thank you for that. I I wholeheartedly agree. Mr. Sher, back to you. In 2019, the US Court of Appeals for the Second Circuit raised concerns about section 702's ability uh to enable broad queries of Americans communication. Uh the court essentially held uh that law enforcement cannot search people's communications without any sus suspicion uh just to see if something incriminating turns up. Um uh which of course it would violate their Fourth Amendment uh rights.
▶ 3:15:19Is this an example though of government fishing uh for criminal evidence at the expense of the constitution and people's fourth amendment rights?
▶ 3:15:26I think that's a fair characterization. How how widespread do you believe this practice is?
▶ 3:15:34Well, just from the number of queries that are run, it it seems like it's quite right quite widespread. And yet another reason why it's important to have a um to have a warrant requirement before the 702 database can be searched. Well, I I agree with you there, too. Um, and I think the number of queries and the the amount of people that had access to this um is is very alarming as well. What do you think this also reveals about the culture within the FBI?
▶ 3:16:02Uh that they do this with with impunity, without regard to people's constitutional rights, uh and without, you know, any any reasonable suspicion that any particular person is engaged in some criminal activity unless they just happen to dig it up.
▶ 3:16:17Yeah. Well, certainly the whole Carter Page fiasco and many other many of the other examples that we've discussed today are are examples of a of an investigation culture that seems to have seems to have run a muck. And yet another reason why uh the article 3 branch should be uh should be brought into the mix to exercise some oversight.
▶ 3:16:38Thank you for that. I'm going to switch gears just a little bit too just about government data purchasing. Uh obviously government agencies are using this. Uh in what ways should Congress look to close these loopholes that allow them to purchase um this data that evades people's fourth amendment liberties?
▶ 3:17:01Is that to me?
▶ 3:17:01Yes, sir.
▶ 3:17:02Uh well whether or not Congress decides to allow the agencies to purchase the data uh how they use it is the key question. And and I think before the government can search any database, whether it's the 702 database or a database consisting of uh of data that has been purchased, there should be a requirement that if they're if they're looking at sensitive personal data uh including people's communications uh that they ought to have to get a warrant uh
▶ 3:17:32to search it.
▶ 3:17:34Thank you for that. Uh Mr. Chairman, I see my time has expired and I yield
▶ 3:17:38Gentleman yields back. The gentleman from North Carolina is recognized.
▶ 3:17:41Thank you, Mr. Chairman, thank you for holding this hearing to the witnesses. We certainly appreciate your duration, your uh endurance, and the the candid answers that you've given. I've got to say that that every time we bring this this statement up, it stuns me. We pass a law to surveil foreign threats to the country and we abuse it by spying on the United States citizens that we are tasked to protect. It's when you when you boil it down in that simple term, it's stunning. It is stunning.
▶ 3:18:10you know, warrantless access allowed under a trust agreement with those who are investigating. You know, this comes from someone myself who worked with agents. I worked with the law enforcement uh professionals all over this country who are very proficient at investigating. I was proud to do it. I was honored to do it. But I must say that this particular sect of the law is entirely too secretive. It's entirely too bureaucratic.
▶ 3:18:38There is absolutely no disinfectant of the bright lights of a courtroom that people have access to. And when you look at uh kind of the construct plainly speaking with this power, it enables the investigators to target people not criminal behavior. And that is the inherent danger that I see here.
▶ 3:18:59And when you open up the just the documented abuses, again, even the documented abuses we receive in a report and we trust that those are all the abuses, right? That's that's to me again a very problematic posture. But, you know, some of the abuses include intrusive searches for nefarious or creepy reasons, right? Personal reasons from bureaucrats who are nameless and faceless, who have not been fired or punished.
▶ 3:19:26Some of these intrusive searches uh are for political motivations. Again, Carter Page, right? And there's no disinfectant of the bright light. When I was doing these investigations, we would observe criminal conduct, we would seek authority to get the information and then we would get the warrant, right? Then once the information was in hand, we would go through it to determine what charges, if any, would come forward.
▶ 3:19:52So with that as my basis, let me just ask, is it a problem that the information is already in hand before any warrant is ever needed
▶ 3:20:01in the process?
▶ 3:20:03Mr. Chair,
▶ 3:20:06it is a problem. It's probably inherent in the whole section 702 collection process and and in the the legitimate need to engage in surveillance of foreigners. Um, but it's a it's a problem that is, I think, easily solved
▶ 3:20:22with with a warrant requirement. Um, before before the information can be can be queried on individual Americans, then there needs to be a warrant in play.
▶ 3:20:32Well, that's getting to the root of my
▶ 3:20:34The query is a fancy word for search.
▶ 3:20:37There's no way to prevent searches in the back channels of a deep government bureaucracy. Correct. uh that there may be no way to pre prevent them, but there's certainly ways to deter them.
▶ 3:20:50Sure, but we're not doing that. But again, you have a pot of information in the back channels of a bureaucracy, and we're trusting them not to abuse access. Is there is there a way to preclude access to that information without a
▶ 3:21:05Not that I'm aware of, which is why requirement is so important.
▶ 3:21:08Yes, that's my problem. Uh, is there a way to preclude or is there a way to gauge whether or not there have been queries if they want to hide those queries, they being the FBI?
▶ 3:21:20Yeah, I I'm not sure there's a way to do
▶ 3:21:22Mr. Tolman,
▶ 3:21:24no. My my concern is if for example, take the analogy that the searches are large boxes in an Amazon truck, right? And if the FBI knows that each box has multiple individuals in it, my concern is they'll say, "We're only going to search this box, right,
▶ 3:21:46where the target actually is, but there's multiple individuals that deserve protection under the Fourth Amendment, and we don't get to when they're searching those,
▶ 3:21:54right?" You were raising your hand, ma'am. Yeah, I mean you rais an excellent point which is if they collect pretty much everything, any of these back-end protections, including the requirement to get a warrant, are going to be imperfect necessarily. That is a very good reason to limit the collection on the front end. And one of the
▶ 3:22:12I mean, just so people know, we would have evidence that a criminal actor was using his or her cell phone. We would ascertain the number through investigative means and then we would apply for a warrant to get location data who they were calling and then if need be. The most intrusive search was a title three wiretap. We had to bend over backwards to demonstrate the need to get the information that the government right now is collecting in mass with no warrant. It's really astounding to me.
▶ 3:22:38And if there's no way to protect abuses uh against abuses, I wonder what the solution is. And I'll turn it over if you could go down in in sequence starting with you, ma'am. What are ways that we can protect that information in addition to the warrant requirement?
▶ 3:22:54Well, what I was going to say is that the initial scope of surveillance right now is too broad. Any foreigner can be targeted overseas under this broad definition, extremely broad of foreign intelligence. And what that means is foreigners who there's no evidence or reason to believe that they pose any threat to the United States or their interest, they are subject to surveillance.
▶ 3:23:13What that means for Americans is that the pool of Americans communications that can be incidentally collected is enormous and and it's likely to be these innocuous conversations. So refining the foreign targets at the front end would be an enormous protection for Americans and that that is something I talk about in my written testimony.
▶ 3:23:36Thank you. Briefly. Yeah, I would just say what Liza said, scope uh you know refining down the scope of surveillance and then I know Rice already did this uh with reducing the number of FBI agents that had access to that that that that database. I would say exploring how we can go and further reduce that number. Chair Jordan mentioned 10,000 before
▶ 3:23:53a shared custody of it.
▶ 3:23:54Yeah, exactly.
▶ 3:23:58And I agree with those comments.
▶ 3:24:01I I would say perhaps we we established something like the taint team. you recall how we utilize that where we would not allow those, you know, access to documents and data that they that might be violative. Perhaps there's a layer that could be put in there that would prevent investigators from actually looking at the data until they've satisfied those protocols.
▶ 3:24:23Mr. Chairman, I yield the balance of my time to the representative from Texas. Thank you all.
▶ 3:24:30Gentleman from Texas is recognized for five minutes. Thank you, Mr. Chairman, and thank you to the witnesses for taking the time to be here and for your expertise. I entirely associate myself with the great line of questioning for my friend, Mr. Knot in North Carolina. But, um, want to want to begin and just kind of break this down really quickly in on a basic level. Uh, Miss Gotine, what what is the section 702 database?
▶ 3:24:56Uh, it's not a single database uh database per se. Uh section 702 enables the government to collect the communications of certain foreign targets, which is pretty much any foreigner. Um if the government has a foreign intelligence purpose, and to uh collect any information on them, including all of their communications, and that includes communications with Americans, all of that gets fed into various different data systems that different agencies have.
▶ 3:25:21And and how vast are are these data systems? In other words, what types of information is being collected and and about whom?
▶ 3:25:29Right? So, we have very little public information about that, but in 2011, which I think is the last time this this particular statistic was reported, there were 250 million communications, internet communications obtained. And so, and that was when there were far fewer targets. If you extrapolate with the number of targets we have today, it's about a billion communications, internet communications collected every year.
▶ 3:25:53And because they reside in these systems for at least five years, several billion communications right now in storage collected under 702. And
▶ 3:26:02and what are these communications? Are these calls, texts, emails, uh location
▶ 3:26:08It can be anything. And it doesn't have to be communications. It can be any kind of foreign intelligence information or information that is qualifies as foreign intelligence. Uh actually, it doesn't have to be foreign intelligence. The government just has to have a foreign intelligence purpose. So it can be any kind of information imaginable. Um and uh but definitely it includes uh electronic surveillance which is
▶ 3:26:31Got it. And and who could be tied up in this database? And in terms of American citizens, members of Congress, everyday American citizens, who all could be caught up in this?
▶ 3:26:41Right. So there are almost 300,000 foreign targets. Um and they do not, as I said before, they don't have to be suspected of any wrongdoing. Um and so anybody who has the misfortune of being in communication with someone who has been designated as uh one of these targets, their communications will be swept up.
▶ 3:27:01So we have billions of data points from American citizens who have never been convicted of a crime.
▶ 3:27:07Not all of the billions involve Americans. We don't know what proportion involves Americans because they won't give us
▶ 3:27:12but a large number
▶ 3:27:13presumably because prevalence of international communications
▶ 3:27:16and and where does all of this information sit
▶ 3:27:19different databases and different
▶ 3:27:22And that's all all within the federal government that various actors have access to.
▶ 3:27:27Who who has access to this information?
▶ 3:27:30Uh agents who are working on cases. I mean I think it's it's uh a lot. I mean, we heard earlier it's basically 10,000 uh FBI agents. Um, it's in the in the FBI. I mean, leaving aside the NSA and the CIA, uh, it's agents in field offices all around the country. Um,
▶ 3:27:51and and they don't need a warrant to access any of it.
▶ 3:27:54Okay. And what what types of protocols or procedures are in place to help protect privacy of American citizens data? That's sounds like all over the within multiple agencies of the federal
▶ 3:28:06right? So there have been um reforms that were put in place through last year's uh reauthorization of section 702 that required things like attorney approval of US person queries. It required people to keep a written justification of their queries uh agents. Uh it uh required uh an an audit um every six months by the national security division of queries. it required supervisory approval for certain uh sensitive queries.
▶ 3:28:37So it it's there are sort of layers on layers of these sort of internal review or oversight mechanisms. Many of these were in place uh well before RISA codified
▶ 3:28:50and even after these internal mechanisms had been adopted we were still seeing abuses. We were seeing searches for uh the communications of a US senator, a state senator, a state court judge who had contacted the FBI to report civil rights violations by a police chief. That was after many of these reforms had been adopted. So, have they helped? Probably. Um again, we don't have complete data from from this past year. Um but they're not enough.
▶ 3:29:18So there's millions of potentially more bits of communication information of American citizens sitting in various government databases that FBI agents have access to without require obtaining a warrant. Um that seems like a pretty egregious violation of the Fourth Amendment, does it not?
▶ 3:29:36Uh to me that is a violation right there. even if every single query complies with the internal standards and procedures that have been adopted, it's not probable cause in a warrant and therefore it's a it's a fourth amendment uh problem.
▶ 3:29:49Agreed. Thank you.
▶ 3:29:52Gentleman yields back. The gentleman from North Carolina is recognized.
▶ 3:29:56Thank you, Mr. Chairman, and I thank all of you for your uh time and patience and apologize for being in and out with three different committees holding hearings and markups all today. But uh listen, as a freshman member of uh Congress, as I've had the opportunity to listen today, I'm delighted to see that this committee is united in defending Americans Fourth Amendment rights.
▶ 3:30:17And as we approach FISA reauthorization, I do think it's important to build upon the progress made last Congress in protecting Americans from unconstitutional searches. And that starts with addressing some of the shortfalls of last year's reauthorization and reforming intelligence and securing America act, also known as RISA. Obviously, my biggest concern is the failure to include a warrant requirement which failed as an amendment on the House floor.
▶ 3:30:44However, I understand there were other provisions in the bill that ought to be addressed. And one concern I have is the expansion of the definition of electronic communication service providers. I've been a pastor for 36 years and I often worry about the ways in which government can be weaponized against churches and other religious institutions. So, Mr.
▶ 3:31:05Chair, does the expanded electronic communication service provider a provision in RISA mean that even churches and other places of worship could be demanded to facilitate the warrantless surveillance of their people?
▶ 3:31:19I believe so. I mean, if you look at the requirements um for being considered an ECSP, an ECSP, ECSP, an electronic communication service provider, uh most churches are providing Wi-Fi service to their parishioners when they come. My church does. I suspect your church your your s church does. And they do that using communications equipment, right? A Wi-Fi router that may be installed in the ceiling or or somewhere else.
▶ 3:31:48So they really fit the definition of an ECSP. Um and and therefore at any moment somebody from the FBI could come along and say uh you know we we you have somebody in your congregation that we're suspicious of and we want you to give us access electronically to everything that they're doing on their phone when they use your Wi-Fi service during the service.
▶ 3:32:14and and they could force they could they could force you as a pastor to do that and they could also order you that you can't tell the person about it. Right? So, it's it's they're they're really draoning people into secret surveillance of their parishioners or customers if they're a small business or whatever it may be.
▶ 3:32:34Wow. That's pretty scary.
▶ 3:32:36We don't know that it's actually
▶ 3:32:38But but the the way the law was drafted that would be allowed.
▶ 3:32:42Exactly. Well, Mr. Chair, your group, the Project for Privacy and Surveillance Accountability, list on its website, quote, "Solutions to protect privacy and restore appropriate legal protections." The first solution on this list is requiring annual audits of surveillance programs. How does oversight of the use of FISA by government agencies currently operate? Well, the most effective o oversight right now is this process of having to have it reauthorized every couple of years.
▶ 3:33:12In the in the old days when it was every five years,
▶ 3:33:16uh you know, the agency would basically do what the agencies would basically do what they wanted until about a year before the reauthorization and then they would try to clean up their act and and they can't do that anymore. So just this annual process or this bianual process is useful. And are there specific additional steps that you believe Congress can take to improve the oversight of the use of FISA by our government agencies?
▶ 3:33:38I think demanding more information from the FBI and the Justice Department about about how these programs are actually being used and then and then following up when they inevitably don't respond.
▶ 3:33:50Oh, thank you very much for that. Um, Mr. Chinowski, in your written testimony, you mentioned that the intelligence community has used artificial intelligence to assist in conducting surveillance. While we all want our intelligence community to be able to conduct proper surveillance of foreign actors who seek to do us harm, we've got to ensure that developing technology is not used to further violate our Fourth Amendment.
▶ 3:34:12In just the last few seconds we have left, what steps would you say that Congress can take to ensure law enforcement uses AI in a way that respects Americans Fourth Amendment rights?
▶ 3:34:24Absolutely. Thank you for the question, Representative. I think that we don't want to necessarily deter agencies from using new technologies to help them carry out their public mission. But that being said, as that technologies capacity to go and help them potentially violate people's rights gets that much greater, it makes it that much more important that we have these guard rails in place. having that warrant requirement. I was as uh Congressman Nas was talking about before, the procedural elements of getting that warrant are are very important, I think, to carrying out the mission, but they don't even have to worry about that right now. Right.
▶ 3:34:51So, if we're going to be leveraging these powerful technologies, let's make sure that we have those processes and procedures in place to minimize and hopefully ideally eliminate the misuses that have been well documented for
▶ 3:35:03Well, thank you so much. Thank you all again for your time and your uh persistence. Thank you, Mr. Chairman. I yield back.
▶ 3:35:08Gentleman yields back. We're almost there. The gentle lady from Texas is
▶ 3:35:12Thank you so much, Mr. Chairman. I share the concerns of all of my colleagues um that they've mentioned this morning as this hearing has been taking place. The most important part of making reforms to government surveillance programs is ensuring that Americans privacy rights are not being violated. But that requires Congress to do its job and conduct oversight of these executive branch programs. We all agree that significant reforms are needed for FISA.
▶ 3:35:40But over the past year, Republicans in the House and Senate have allowed this president to be careless with Americans private data. This administration can't even prevent American citizens from being arrested in their mass deportation machine. Why should we believe that they'll be able to prevent Americans private data from being collected throughout government surveillance programs?
▶ 3:36:05For FISA to actually work as intended, federal agencies need enough staff and resources. But most importantly, they need competent leadership. Unfortunately, this president and his cabinet have shown themselves to be incapable of understanding the seriousness of handling sensitive information or protecting Americans private data.
▶ 3:36:28When you have the defense secretary sending classified information to the vice president through signal, or when extremist billionaires are allowed to have access to Americans private data, or when ICE signs contracts to use surveillance technologies against Americans who are critical of their violent deportation tactics. All of this shows that this administration isn't serious about following the rule of law or protecting Americans privacy rights.
▶ 3:36:54So, we can talk for hours about legislative reforms needed for FISA, but none of it will matter if Republicans refuse to conduct actual oversight or if they continue to allow the administration to dismantle federal oversight offices and positions. Under this administration, numerous federal agencies have fired internal agency record officers, used autodelete technology when communicating, and stopped requiring the preservation of federal records. Miss Goiton.
▶ 3:37:27We often learn about abuses in federal surveillance programs through whistleblowers. So, can you explain how the destruction of federal records can incentivize agencies to violate Americans privacy records?
▶ 3:37:41I'm sorry. The destruction of federal
▶ 3:37:46So, can you explain
▶ 3:37:47Oh, okay. Okay. Sorry. I Yes. My apologies. Yes, I'm following you. Um, yes. I think there's reasons why there are records retention schedules uh in the law and it's because this is the official record of official official action. It is needed for all kinds of purposes. It's needed for continuity um over time with other administrations. Um it at times it can be needed for litigation.
▶ 3:38:11Um but it certainly uh can be important um to reveal uh misconducts, fraud, waste, abuse um whether through uh internal oversight channels, whether through oversight uh by Congress or uh or the courts or through whistleblowers. So um yes, it's it's important to preserve federal records in accordance with um the preservation schedules.
▶ 3:38:38Thank you so much. How have unchecked surveillance powers historically been used against marginalized groups?
▶ 3:38:45Oh, I mean it is it is such a a long story and it's it's not just in this country, right? It's around the world. Surveillance is a tool uh by which governments have have um oppressed uh marginalized communities of of all kinds.
▶ 3:39:04um in this country um during the Cold War there was widespread spying um by the FBI, the uh CIA and NSA or or and their pred predecessor names for them. Um and that surveillance was targeted against anti-war protesters. It was targeted against social justice movements. It was targeted against Martin Luther King Jr.
▶ 3:39:31Um and it was targeted against political opponents of uh whether it was the president or people high up in the administrations. Um that is a feature of this country's history that actually led Congress to pass uh FISA to get some kind of control over foreign intelligence surveillance. A lot of these abuses were in the name of foreign intelligence.
▶ 3:39:56These were uh purported attempts to to find if there was foreign influence over uh certain movements. Um so and it led to a number of other reforms by Congress. Uh the problem is that uh since then and especially since 9/11 some of the protections that were built into the law including FISA that were meant to deter this kind of spying on uh based on politics, race, ideology, uh religion
▶ 3:40:27um have been stripped out and particularly after 911 they were stripped out uh sort of very very quickly uh based on a sort of misguided sense that that was the way that we were going to stop a a uh future terrorist attack. Um so and as a result, we're vulnerable once again. I'm sorry I took so much.
▶ 3:40:43No, no, no. That's okay. Thank you so much. I appreciate you. And with that, Mr. Chair, I will yield.
▶ 3:40:48General yields back. Well, thank you all. Um seems to me everyone is probably in this giant database wherever it may reside. Uh we have tried reform after reform and while helpful, it never seems to fully correct the problem.
▶ 3:41:07um the deterrence, the penalties probably aren't there for those who continued to abuse it as evidenced by the one guy who actually the title one side of things lied to the FISA court, changed the document, back practicing law, got his law license and never never really got any kind of real sentence. So the only answer seems to me is what we've been spending three and a half hours talking about is to get the warrant requirement in there. So we will continue to do that, continue to work on that, hopefully get it get it done. But you guys have been a tremendous panel.
▶ 3:41:37We appreciate uh you appreciate you being here and the excellent testimony that you gave. And that concludes today's hearing. We want to thank all our witnesses. Again, without objection, all members will have five legislative days to submit additional written questions for the witnesses or additional materials for the record. Without objection, the hearing is