Judiciary Committee Holds Hearing On 'Continued Pattern Of Government Surveillance Of U.S. Citizens'

2 days ago

The House Judiciary Committee holds a hearing entitled, "A Continued Pattern of Government Surveillance of U.S. Citizens."

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Transcript

00:00:00In the meantime, we welcome everyone to today's hearing on federal government surveillance.

00:00:05I now recognize the gentleman from Alabama, Mr. Moore, to lead us in the Pledge of Allegiance.

00:00:30I now recognize myself for an opening statement.

00:00:35I welcome my colleagues to this important hearing, and I welcome our witnesses and thank

00:00:40them for being here today.

00:00:42The Fourth Amendment guarantees all Americans the right to be free of unreasonable government

00:00:45searches and seizures.

00:00:47With advances in technology, Americans' personal data has become easily tracked and collected.

00:00:53And the government can and does obtain this information without acquiring a warrant and

00:00:56without ever notifying an individual who is subject to a search.

00:01:01This is especially prevalent in the context of the Foreign Intelligence Surveillance Act.

00:01:06Reports in recent years detail how the FBI, under the leadership of past FBI directors,

00:01:11abused its authorities under FISA.

00:01:14The FBI used its authorities under Section 702 of FISA to conduct millions of queries

00:01:19of U.S. person communications.

00:01:21At its peak, the FBI conducted nearly 3 million such searches in 2021.

00:01:27In recent years, those numbers have begun to decline, but the FBI still conducts thousands

00:01:32of U.S. person queries every month.

00:01:35These actions violate the privacy and civil liberties of Americans and likely infringe

00:01:40on their Fourth Amendment protections.

00:01:43I have called for serious reforms to FISA for years.

00:01:46In last Congress, we undertook the task of attempting to rein in years of FISA abuses.

00:01:51Congress enacted a bill that included various reforms, such as new and heightened criminal

00:01:55and civil penalties for those who violate FISA.

00:01:58We significantly reduced the number of FBI personnel authorized to approve queries.

00:02:04We required audits of U.S. person queries and implemented many new reporting and transparency

00:02:09measures.

00:02:10But we must still work to protect the Fourth Amendment rights of all Americans.

00:02:15I introduced an amendment to require a warrant for all U.S. person queries.

00:02:19This amendment included various exceptions to allow the FBI and the intelligence community

00:02:23to do its vital work of defending our homeland while protecting Americans' privacy rights.

00:02:29This amendment had broad bipartisan support, and we worked closely with our colleagues

00:02:32across the aisle in an attempt to address this issue.

00:02:36I believe such a reform is necessary to end the abuses of Americans' rights.

00:02:40But reforming FISA itself is not enough.

00:02:43The government has plenty of other tools at its disposal to collect information on Americans.

00:02:48Currently, the law governing how the Fourth Amendment is applied in the digital context

00:02:54is the Wild West.

00:02:56Key legislation in this space is the Electronics Communications Privacy Act, which was written

00:03:00in 1986, and did not take into account all the advances in digital communications that

00:03:06have occurred since.

00:03:08The iPhone, for example, did not show up for two decades after this law was written.

00:03:13These cell phones have become such an integral part of our lives that, as the Supreme Court

00:03:17has held, they now, quote, hold for many Americans the privacies of life, close quote.

00:03:23Federal agencies are able to sidestep the requirements of the Fourth Amendment and access

00:03:27and collect massive amounts of private information on Americans by exploiting a legal loophole

00:03:32in this act.

00:03:33Rather than obtain a warrant, government agencies like the Federal Bureau of Investigation,

00:03:37the Internal Revenue Service, the Drug Enforcement Agency, and the Department of Homeland Security

00:03:42can simply turn to data brokers and purchase mass amounts of Americans' data.

00:03:48This includes such private information like location and health information, and so on.

00:03:53Currently, with the disturbing amount of frequency, data brokers sell Americans' personal information

00:03:58to law enforcement and intelligence agencies without any court oversight, in contrast to

00:04:04strict rules that prevent phone companies and social media sites from selling such information

00:04:08to the government.

00:04:11We also are aware of reports of the federal government using facial recognition technology.

00:04:16This is a powerful tool that can be used to help solve crimes, but this technology also

00:04:20raises serious issues concerning First and Fourth Amendment rights.

00:04:24Law enforcement agencies could potentially use this technology to surveil individuals

00:04:29who are not engaged in any illegal activity whatsoever.

00:04:32For example, we've seen reports of ATFs using facial recognition to find gun owners.

00:04:37The federal government has also turned to private companies like Clearview AI to purchase

00:04:41access to facial recognition technology.

00:04:44Clearview AI pulls publicly available photographs from social media sites and puts them into

00:04:49a database marketed to law enforcement.

00:04:52Clearview AI's founders called the service a search engine for faces.

00:04:57The Government Accountability Office has conducted studies of federal law enforcement entities'

00:05:01use of this technology in recent years.

00:05:03It found that federal law enforcement agencies had not properly assessed privacy and other

00:05:08risks associated with the use of this technology, and some did not even know which systems their

00:05:13agents were using.

00:05:15As technology continues to develop, the government has more and more information about Americans

00:05:19available to it.

00:05:21Used improperly, this will continue the pattern of government surveillance of U.S. citizens

00:05:25that we have fought so hard against.

00:05:27Congress must protect the privacy rights of Americans and uphold the guarantees of the

00:05:30Fourth Amendment.

00:05:32I look forward to this opportunity to discuss the dangers of mass surveillance and explore

00:05:36meaningful reforms.

00:05:37I appreciate our witnesses and the members for being here today, and the public for attending

00:05:41as well.

00:05:42I now recognize Ranking Member of the entire Committee, Mr. Raskin, for his opening statement.

00:05:51Thank you very much, Chairman Biggs, and thanks to our distinguished witnesses for joining

00:05:55us here today.

00:05:56The Fourth Amendment guarantees the right of the people to be secure in their persons,

00:06:00houses, papers, and effects against unreasonable searches and seizures.

00:06:06That right is the same today as it was when it was written centuries ago, but the facts

00:06:12on the ground have obviously changed.

00:06:15Members of Congress didn't have cell phones in their pockets.

00:06:18We didn't have Zoom.

00:06:20We didn't have email.

00:06:22The times have changed, and while the constitutional right to privacy has not changed, new technologies

00:06:29make it a lot harder to rein in government intrusion in the lives of the people.

00:06:38Artificial intelligence turbocharges surveillance capabilities by sifting through mountains

00:06:42of personal data in seconds.

00:06:44Data brokers aggregate and re-identify so-called de-identified data bought from apps and then

00:06:51sold to others, including the government, allowing them real-time access to Americans'

00:06:56location, purchasing habits, and health care needs.

00:07:00Cameras equipped with facial recognition technology can scan a crowd and instantaneously pick

00:07:04out specific people, whether law enforcement targets or undocumented immigrants, you name

00:07:10it, all without a warrant.

00:07:12In an 1829 speech at the Virginia Constitutional Convention, Madison said to his colleagues,

00:07:17the essence of government is power, and power lodged as it must be in human hands will ever

00:07:23be liable to abuse.

00:07:25The U.S. government has broad surveillance authorities.

00:07:28When properly implemented, they keep us safe from terrorists and foreign adversaries and

00:07:33gangs, but such broad grants of power are also fertile ground for abuse.

00:07:38I believe Congress has a duty to balance the government's need for Americans' private

00:07:42data with our rights.

00:07:45I have voted in favor of government surveillance authorities when they do not trespass on our

00:07:50constitutional rights, and I voted against them when they don't.

00:07:53We obviously need to keep ourselves safe, both from criminals and fraudsters who would

00:08:00do us harm, as well as those in power who would violate our freedom.

00:08:04When we last reauthorized Section 702 of FISA, which allows warrantless collection of the

00:08:09communications of non-U.S. persons located overseas, including when those people are

00:08:13interacting with Americans, our solution to that tension between privacy and security

00:08:18was to establish more checks on the government.

00:08:22Congress previously imposed rules dictating when the FBI can search for Americans identifying

00:08:27information in the 702 databases, but we know those rules had been honored only in the breach.

00:08:33Rather than review a sampling of those U.S. person searches, the FBI's National Security

00:08:38Division now must audit every search for the communications of an American.

00:08:43These watchdogs within the FBI and in other government agencies are an essential line

00:08:48of defense against government overreach.

00:08:50But the problem today is that President Trump has fired all of those people.

00:08:54A week after he was sworn in, President Trump fired every Democratic member of the Privacy

00:08:59and Civil Liberties Oversight Board.

00:09:01This is the board created by Congress in 2004 to make sure the government does not violate

00:09:05American civil liberties in the name of keeping us safe.

00:09:09The work of these Democratic members have been lauded even by Republican members of

00:09:13our committee who recognized and shared their commitment to protecting our rights against

00:09:17government overreach.

00:09:19Trump has left the Privacy and Civil Liberties Oversight Board with only one member, a single

00:09:24member who has been stripped of all authority because the board needs a quorum, which is

00:09:28three, to act.

00:09:30She cannot issue recommendations on Section 702 U.S. person searches.

00:09:34She cannot hold public meetings.

00:09:36Without the fired members, it's as though the board simply doesn't even exist.

00:09:40But the president did not stop there.

00:09:43Remember those monthly audits of every single U.S. person search of the 702 database?

00:09:48He removed the individual responsible for managing that and rescinded offers extended

00:09:52to those who had been recruited to help her.

00:09:55So Congress cannot receive the audit reports required by law because there's simply nobody

00:09:59left to audit these warrantless searches, much less provide the mandatory report to

00:10:05Congress, which is why I'm also concerned about all the other things that have been

00:10:09done to remove the safeguards around Americans' right to privacy against government invasion.

00:10:16The president fired at least 17 inspectors general, dismantled the Cyber Safety Review

00:10:21Board and removed the director of the NSA, the person in charge of collecting 702 data

00:10:27responsibly and within statutory limitations.

00:10:30Just last week, he fired the four-star general in charge of the NSA and U.S. Cyber Command

00:10:36with other high-ranking security officials because, according to reports, Laura Loomer

00:10:41told him to do that.

00:10:42In a system that works, surveillance and privacy are inextricably tied and made consistent.

00:10:49Those conducting surveillance understand the threat both to the country and its civil liberties

00:10:55and thus apply the rules in a precise and disciplined way.

00:10:59Ben Franklin famously said that those who give up essential liberty to purchase a little

00:11:04temporary safety deserve neither liberty nor safety.

00:11:08Well, Trump has defied even Ben Franklin because in 78 days, we have lost both privacy and safety.

00:11:15We are less safe and we're less free than we were on January 19, 2025.

00:11:20President Trump and those he's placed in charge of the FBI, like Kash Patel, have talked about

00:11:24using the power of government to visit retribution on anyone the president sees as an enemy.

00:11:30Over the last 78 days, we've watched the administration attack journalists, the free press, colleges,

00:11:35peaceful protesters, members of Congress, lawyers and law firms, even federal judges

00:11:40because they have countered his assault on the rights and freedoms of the people.

00:11:45Never have I felt more concerned about the extremely broad, warrantless surveillance

00:11:49powers that have been entrusted to the executive branch.

00:11:53Chairman Jordan and I have disagreed about various things in the past, but I must say

00:11:57he has shown commendable and strong leadership and worked across the aisle to ensure that

00:12:02Republicans and Democrats alike understand the dangers of unchecked government surveillance

00:12:08and the times bear him out.

00:12:09I am looking forward to working with him closely on a bipartisan basis in this set of hearings

00:12:15in the lead up to the expiration of FISA Section 702 next year to stand up for all American

00:12:21civil liberties.

00:12:22I thank him for his leadership.

00:12:23I thank you, Mr. Chairman, and I yield back.

00:12:25Gentleman yields back.

00:12:26The chair recognizes the chairman of the full committee, Mr. Jordan, for his remarks.

00:12:29Thank you, Mr. Chairman.

00:12:30Section 702 of the Foreign Intelligence Surveillance Act allows government to conduct surveillance

00:12:37of foreigners, as the title would suggest, outside of the United States for intelligence

00:12:44information.

00:12:45Okay, that's all well and good.

00:12:46We like that.

00:12:48They get that information, they bring it into this giant database, this what I call the

00:12:51haystack of information, and then they do queries, which is a fancy word for search,

00:12:58and they search Americans, American phone numbers, names, email addresses.

00:13:03They search America.

00:13:04They call it queries, but a query is a fancy name.

00:13:07Query is a fancy name for search.

00:13:09Three million times they did it in 2021, and here's the kicker.

00:13:15The FBI, when they did all these searches, didn't even follow their own rules.

00:13:19You don't have to take our word for it.

00:13:20The inspector general said 278,000 times the FBI didn't even follow their rules for conducting

00:13:28these searches on Americans, not foreigners.

00:13:32The ranking member's right.

00:13:33We got 12 months from now when we get a chance to go at this issue again.

00:13:37We were close last time.

00:13:39We lost a warrant requirement in a vote, 212 to 212.

00:13:43I'm going to do everything, and I know the chairman is, and I appreciate the ranking

00:13:46member's comments.

00:13:47We're going to do everything we can to make sure we have that warrant requirement.

00:13:51Here's the way it works in our country.

00:13:52If you're an American citizen, and the government wants to go look at your stuff, they got to

00:13:57go to a separate, equal branch of government and get a warrant.

00:14:00It's pretty simple.

00:14:02That's what we want, plain and simple.

00:14:05We were one vote away from passing it in the House.

00:14:08Who knows what would have happened in the Senate?

00:14:10I know I'm committed, I know the chairman of the subcommittee is committed, and the

00:14:15ranking member, I appreciate what he's done over the years in defending the Constitution,

00:14:20the Bill of Rights, and we look forward to working with him on this issue.

00:14:23We need to do this to protect American citizens and stick with, as the ranking member said,

00:14:28the way it's always worked.

00:14:30You want to look at someone's stuff?

00:14:32Go get a warrant.

00:14:33Go to a separate branch of government, get a warrant.

00:14:35That's how probable cause ... Here's the other thing.

00:14:38We even put exceptions in there, exigent circumstances, something really bad's going to happen, or

00:14:44you give permission because there's some cyber attack on you or your company.

00:14:47We put exceptions in there.

00:14:49We'll put them back in again.

00:14:50Sometimes I thought we put too many exceptions.

00:14:53We'll do it again, but we've got to win.

00:14:55We've got to win this issue 12 months from now, April ... I forget the date in April,

00:15:01but it's April next year, and we've got to make sure we win this.

00:15:03I appreciate the chairman bringing our witnesses here.

00:15:06Thank you for coming and having this hearing on this very important, fundamental, fundamental

00:15:10issue for the American people.

00:15:11I yield back.

00:15:12The gentleman yields back.

00:15:15Without objection, all other opening statements will be included in the record.

00:15:18We will now introduce today's witnesses.

00:15:20First of all, Mr. James Chernowsky.

00:15:23Mr. Chernowsky is a senior policy analyst at Americans for Prosperity, where he focuses

00:15:26on issues surrounding technology and innovation.

00:15:29Prior to joining AFP, he was a technology and innovation policy analyst at the Libridas

00:15:34Institute.

00:15:36Mr. Phil Kiko is a principal at Williams & Jensen PLLC.

00:15:40He is a former chief administrative officer in the House of Representatives.

00:15:43He has signed everybody here's checks at some point or another, and has served on a number

00:15:47of positions with members of Congress and committees, including the Judiciary Committee.

00:15:51He also served in the executive branch at the Interior Department and the Department

00:15:55of Education.

00:15:56Mr. Gene Sherr is a partner at Sherr Jaffray LLP and serves as the general counsel at the

00:16:01Project for Privacy and Surveillance Accountability.

00:16:03The Project for Privacy and Surveillance Accountability advocates for greater protection for Americans'

00:16:08privacy rights and civil liberties in government surveillance programs.

00:16:12Mr. Kia Hamadachi is a senior policy counsel at the ACLU, where he focuses on civil liberties,

00:16:24among other issues.

00:16:25He previously served as a House and Senate staffer.

00:16:28We welcome each of our witnesses, and thank you for appearing today.

00:16:31We'll begin by swearing you in.

00:16:32Would you please rise and raise your right hand?

00:16:38Do each of you swear or affirm, under penalty of perjury, that the testimony you are about

00:16:42to give is true and correct, to the best of your knowledge, information, and beliefs,

00:16:45so help you God?

00:16:46Let the record reflect that the witnesses have answered in the affirmative.

00:16:52You may each be seated.

00:16:55Your written testimony will be entered into the record in its entirety.

00:16:58Accordingly, we ask that you summarize your testimony in five minutes.

00:17:03We're going to go first to you, Mr. Chernowsky, and you may begin for your five minutes.

00:17:09Thank you, Mr. Chair, Ranking Member Raskin, and full chair of the committee, Mr. Jordan,

00:17:14for holding this important hearing here today.

00:17:17This is an incredibly important topic, government surveillance of U.S. citizens.

00:17:21This matter isn't just a question of policy or politics.

00:17:25It's a matter of principle.

00:17:28Our Founding Fathers enshrined individual liberty and privacy as bedrock ideals of our

00:17:33Constitution.

00:17:34Yet, over the years, we have seen a surveillance state that only continues to expand, operating

00:17:39with limited accountability under the guise of national security.

00:17:43I do not believe that many would deny the importance of national security.

00:17:47Many, including myself, recognize that the world is a dangerous place and that there

00:17:50are people in this world that would seek to do harm to our great nation and its people.

00:17:55I would know this firsthand growing up in Queens, New York, and experiencing the terrible

00:17:59events and aftermath of 9-11, a solemn day in American history that I will never forget.

00:18:05But it was also a day that served as a catalyst for pushing our nation down this path of increased

00:18:09surveillance.

00:18:10However, while national security is important, it cannot and must not come at the expense

00:18:16of the very freedoms that define us.

00:18:19Looking back at history sends a stark warning of all the dangers in allowing an unchecked

00:18:23government too much power.

00:18:25Oftentimes, unfortunately, we know all too well that granting such powers to the government

00:18:30can result in outcomes where that very power gets leveraged against the very people it

00:18:35was meant to protect.

00:18:37Time and time again, we have caught the intelligence community with their hand in the constitutional

00:18:42cookie jar, if you will, as they use their spy powers to surveil Americans.

00:18:47And when questioned on their wrongdoing and what they're going to do to fix it, the agency,

00:18:52rather than taking the moment seriously and implementing significant changes, puts out

00:18:56platitudes and promises that it will never happen again, until it does.

00:19:01One might take from this exercise that the agencies are seemingly more concerned with

00:19:06the notion of managing bad headlines than they are with the sanctity of Americans' privacy

00:19:12and constitutional protections against overreach and tyranny.

00:19:16This repeated cycle of violations of Americans' rights, coupled with a lack of serious accountability,

00:19:22has led to a significant decline in public trust in the very institutions charged with

00:19:26keeping them safe.

00:19:28In December of 2024, CNN's Harry Enten was on air covering recent Gallup polling that

00:19:33found that support for the FBI in particular was at an all-time low, with just 41 percent

00:19:39of respondents thinking that the FBI is doing either an excellent or great job, representing

00:19:44an 18 percent drop in favorability in just 10 years.

00:19:48That is a damning indictment against one of the key agencies responsible for keeping Americans

00:19:53safe.

00:19:55When it comes to the question of what can be done to address this issue, particularly

00:19:59when it comes to FISA, there are a litany of great ideas floating out there.

00:20:03But here are three key ones I'd like to highlight for you here today.

00:20:06One, closing the backdoor search loophole.

00:20:10Number two, closing the data broker loophole.

00:20:12And lastly, strengthening third-party oversight at the FISA court.

00:20:17The key reforms I just highlighted here today will not end any surveillance that's going

00:20:21on right now or prevent those authorities from being utilized to ensure our national

00:20:25security.

00:20:26But what they will do is ensure that the rights of Americans are not trampled on in the process

00:20:31of carrying out those duties.

00:20:33This is not a moment for complacency.

00:20:35This is a moment for action.

00:20:37We must reaffirm our commitment to the values that make our nation exceptional.

00:20:41We must demand policies that protect our privacy, uphold our liberty, and preserve the Constitution

00:20:47as the cornerstone of our democracy.

00:20:49As members of the committee with primary jurisdiction, you are in the position to shape policies

00:20:54that properly balance security with liberty and to safeguard the very founding principles

00:20:59that make our nation worth protecting.

00:21:01Thank you for the opportunity to share our thoughts with you today, and I look forward

00:21:04to the conversation and answering any questions you may have.

00:21:07Thank you for your testimony.

00:21:09Mr. Hamadanchi, I recognize you now for your five minutes.

00:21:13Chairman Biggs and members of the subcommittee, thank you for the opportunity to testify today

00:21:17on behalf of the American Civil Liberties Union regarding the myriad of government surveillance

00:21:21programs that impact Americans of all backgrounds.

00:21:24At the start of my testimony, I want to express the optimism and hope of the ACLU that this

00:21:29subcommittee and this Congress can use the next 12 months to put into federal statute

00:21:33not only long overdue protections against the misuse of foreign surveillance authorities,

00:21:37but also protections for everyone across our country against the largely unaccountable

00:21:42surveillance state.

00:21:44A little over a year from now, Section 702 of the Foreign Intelligence Surveillance Act

00:21:49is scheduled to expire.

00:21:51While Section 702 requires that surveillance must be targeted at foreigners overseas, large

00:21:56quantities of communications that Americans exchange with people abroad are also swept

00:22:00up and stored for future investigations.

00:22:03The FBI, NSA, and CIA then conduct searches of their Section 702 databases for the communications

00:22:09of Americans without having to demonstrate probable cause as the Fourth Amendment would

00:22:13otherwise require.

00:22:16Last Congress – last year, Congress reauthorized Section 702 for two years with the Reforming

00:22:21Intelligence and Securing America Act.

00:22:23While we await further reporting from the Intelligence Committee on the impact of its

00:22:26changes, there is one recent redevelopment since reauthorization I would like to note.

00:22:33In December, the District Court for the Eastern District of New York ruled in a criminal case

00:22:37that the warrantless searches the FBI conducted under Section 702 violated the Fourth Amendment.

00:22:43This ruling is the first of its kind and one of the rare cases where the criminal defendants

00:22:47have received notice of Section 702 surveillance.

00:22:51And while Section 702 is of particular importance to this subcommittee because it is an issue

00:22:55that Congress has no choice but what to address over the course of the next year, it is not

00:22:59the only form of government surveillance that raises concerns, and I would like to briefly

00:23:02touch on a few related topics.

00:23:04First, as this subcommittee is familiar, in recent years we have seen the ever-growing

00:23:09practice of law enforcement and intelligence agencies circumventing constitutional protections

00:23:14by purchasing access to data that they would otherwise need a warrant to obtain.

00:23:19Even a former deputy director of the CIA, Michael Morell, quote, the information that

00:23:23is available commercially would kind of knock your socks off.

00:23:26If we collected it using traditional intelligence methods, you would keep it top-secret sensitive,

00:23:31and you wouldn't put it in a database, you'd keep it in a safe, end quote.

00:23:37The only way to ensure that protections against federal agencies circumventing the Fourth

00:23:41Amendment purchased by purchasing such as data is through legislation like the Fourth

00:23:45Amendment is not for sale, which passed the House Judiciary Committee last Congress without

00:23:49a single no vote.

00:23:51The second additional form of surveillance I'd like to highlight is reverse warrants,

00:23:55such as reverse location or geofence warrants, and reverse keyword warrants, which allow

00:23:59law enforcement to secure information that implicates large numbers of people who are

00:24:04not suspected of any wrongdoing.

00:24:07These broad, suspicionless, dragnet searches are deeply problematic and are tantamount

00:24:11to the Revolutionary War era general warrants that led our nation's founders to prohibit

00:24:16their use through the adoption of the Fourth Amendment.

00:24:19As the Fifth Circuit Court of Appeals recently held, that reverse location warrants are modern-day

00:24:24general warrants and are unconstitutional under the Fourth Amendment.

00:24:29The next issue I'd like to highlight is cross-agency data linkages.

00:24:33On March 20th, President Trump issued Executive Order 14243, directing federal agencies to

00:24:39facilitate the sharing and consolidation of agency records with the stated goal of combating

00:24:43waste and fraud.

00:24:45However, the broad and unregulated access to sensitive data not only breaches privacy

00:24:50but risks the creation of a database that creates a single searchable profile of every

00:24:55American without transparency or clear legal limits.

00:24:59Without robust privacy protections, this could risk the eventual creation of a vast and unaccountable

00:25:04surveillance state capable of tracking every citizen's activities, movements, and associations.

00:25:10Finally, all these surveillance programs run the risk of being supercharged by the rapid

00:25:15growth and use of artificial intelligence.

00:25:18This subcommittee should undertake a comprehensive review of AI technologies used for surveillance

00:25:22under its jurisdiction and assess their impact on privacy and civil liberties.

00:25:27This committee and this Congress have an unparalleled opportunity over the next 12 months to protect

00:25:33all Americans by fundamentally reforming Section 702, starting with imposing a warrant requirement.

00:25:39We look forward to working with you in getting these long-overdue reforms to the President's

00:25:44desk by next April.

00:25:45At the same time, we strongly urge this committee to also address the massive and growing privacy

00:25:51problems for Americans raised by the broader surveillance ecosystem.

00:25:57Chair now recognizes Mr. Kiko for his five minutes.

00:26:02Thank you, Chairman Biggs and distinguished members of Congress, including Chairman Jordan

00:26:07and Ranking Member Raskin.

00:26:09As you know, the Judiciary Committee has a long, distinguished, and complicated history

00:26:13with terrorism laws.

00:26:15I discussed the history and other legislative efforts in the testimony I delivered two years

00:26:20ago as an addendum to my written statement.

00:26:23The overreach of government agencies in using FISA authorities is well documented, and Inspector

00:26:29Jenner reports FISA court opinions and Congress's oversight work.

00:26:33As a backdrop, one must contend with Internet-enabled platforms that connect almost everyone to

00:26:40an extraordinary, complex digital world which captures users' personal data, records likes

00:26:48and dislikes, preferences, and creates a personality profile for every digital user.

00:26:54Some firms compile and sell this data to third parties.

00:26:59Users consent to such dissemination of their data by signing lengthy Byzantine terms of

00:27:07service agreements, and there are passive ways that data is collected as well, from

00:27:12facial recognition cameras to license plate readers that enable law enforcement to identify

00:27:18and investigate crime in the real world.

00:27:21The rise of AI makes all this more complicated.

00:27:25So in a very real way, we live in a modern, albeit consensual, surveillance state.

00:27:32What is needed is the continued bipartisan oversight by this body to rein in and protect

00:27:38the guarantees of the Fourth Amendment.

00:27:41How do we do this?

00:27:42Well, one way is continued targeted legislative reforms that were accomplished in the previous

00:27:48Congress in H.R. 7888.

00:27:52Additionally, in an age where massive amounts of user data has been commercialized by data

00:27:58brokers, you should ask yourself, if the government can obtain information from a company

00:28:03or a third-party data broker, which ordinarily would require a determination of probable

00:28:09cause from a detached magistrate or judge, as the Fourth Amendment requires, and they

00:28:14obtain information by paying for it without that time-honored legal process, that undermines

00:28:20a crucial safeguard of civil liberty.

00:28:24And I would expect we can deal with that in the next reiteration of H.R. 702.

00:28:31But legislative reforms are only half the battle.

00:28:34What is absolutely required here is continued, vigorous, targeted oversight by the legislative

00:28:40branch.

00:28:42Not passing laws are oversight.

00:28:45And just as law enforcement is increasingly able to identify and interdict crime in a

00:28:52real time, Congress's FISA oversight must also be in real time.

00:28:58What does that mean?

00:28:59Congress must insist on timely disclosure of information.

00:29:03Through no fault of their own, committees have received information in response to reporting

00:29:08requirements that are months and sometimes years old.

00:29:11This information is useless.

00:29:14This after-the-fact approach can be problematic.

00:29:17The provisions of H.R. 7888 are a valuable step in solving this problem, but this would

00:29:25only work if Congress receives timely access to the information.

00:29:29Audits must happen properly, information must be shared promptly, and Congress must be allowed

00:29:35real time access.

00:29:38I would also direct members' attention to Section 18B of H.R. 7888, which requires the

00:29:49Director of National Intelligence to commission a study on technological enhancements for

00:29:55the FBI to monitor compliance of the Bureau's 702 information systems in near real time.

00:30:02Could Congress use AI to modernize FBI's compliance with FISA?

00:30:07Consider something like this in the next iteration of FISA.

00:30:10And why couldn't Congress be entitled to access of that information on an ongoing or even

00:30:15rolling basis?

00:30:17AI would make that allowable.

00:30:19And of course, Congress must continue to include sunset provisions in the FISA reauthorization.

00:30:26The sunset provisions give Congress the leverage it needs to ensure compliance.

00:30:31In short, the short lease must be on the Intelligence Committee, not Congress.

00:30:36And I would also make a pitch for, I believe that I think there are over a million people

00:30:42in the executive branch that have access to SCI clearances, and I just wonder how many

00:30:49people on the Judiciary Committee or how many people in Congress have access to those to

00:30:54do oversight.

00:30:55And I would just make a pitch to increase those clearances.

00:31:00In any event, I'm not someone that's hostile to a strong national security laws or federal

00:31:05enforcement.

00:31:06Congress should not repeal 702.

00:31:09However, it's Congress's constitutional duty.

00:31:14As Congress's constitutional entity closer to the people, it must continue its vital

00:31:19and constitutional oversight.

00:31:21And thank you again for the opportunity to testify.

00:31:25Chair, now I recognize Mr. Scherer for your five minutes.

00:31:31Thank you, Chairman Biggs.

00:31:32And Ranking Member Raskin, my own congressman.

00:31:35And Chairman Jordan and other members of the subcommittee.

00:31:39And I commend my fellow panelists for their insights and their hard work on the issues

00:31:43that we're discussing today.

00:31:45I serve as chair and general counsel of a nonpartisan pro-privacy organization called

00:31:50the Project for Privacy and Surveillance Accountability, which is blessed to have your former chairman,

00:31:56Bob Goodlatte, as our senior advisor.

00:31:59Over the last 25 years, in administrations of both parties, our nation has seen an expansion

00:32:06of privacy-destroying technologies and practices, key elements of a panopticon-style surveillance

00:32:14state coming together before our eyes.

00:32:18One such element, of course, is FISA Section 702, mentioned repeatedly previously, in which

00:32:25the NSA's global trawl routinely catches the communications of innocent Americans.

00:32:32That program, of course, was the subject of the Reforming Intelligence and Securing America

00:32:36Act, or RISA, which passed the Congress last year, in which some have falsely claimed closed

00:32:43Section 702's loopholes.

00:32:46But as useful as RISA was, it left important work undone.

00:32:51To see why, recall that RISA primarily codified 702-related rules and procedures that the

00:32:58FBI itself adopted by early 2022, but the FBI failed even by its own standards when

00:33:04it conducted 204,000 warrantless searches for Americans' communications later in 2022,

00:33:12and a DOJ audit recorded a noncompliance rate – that is, a noncompliance with the procedures

00:33:18rate of at least 3,400 civil rights violations a year, almost 10 per day.

00:33:24Those included a warrantless surveillance of a U.S. senator, a state senator, and a

00:33:29state judge.

00:33:30And since RISA's passage in April 2024, the Director of National Intelligence has revealed

00:33:36additional improper searches, including the communications of a congressional candidate,

00:33:41a congressional chief of staff, numerous federal employees, and even the spouse of an applicant

00:33:45for a security clearance.

00:33:48Beyond 702, routine searches of sensitive data purchased from data brokers is at least

00:33:54as serious a threat to privacy, but is currently shrouded in even greater secrecy than 702 searches.

00:34:03And as abuses continue, the legal foundation for the FBI's warrantless searches under

00:34:08both of those programs is collapsing.

00:34:12As Mr. Hamadanchi noted earlier, in December, building on a landmark Second Circuit ruling

00:34:21that held that a search of the Section 702 database constitutes a search for Fourth Amendment

00:34:26purposes, a federal district court ruled that the government had violated the Fourth Amendment

00:34:31when it failed to obtain a warrant before conducting such a backdoor search of the 702

00:34:37database.

00:34:38And absent an explicit warrant requirement written into statute for searching both 702

00:34:45data and purchased data, we can expect that such abuses will continue.

00:34:51Unfortunately, in the last Congress, this committee demonstrated that it's possible

00:34:57to erect useful guardrails to protect American civil rights against such abuses.

00:35:02There's wide bipartisan support for reform, and although the two warrant requirements

00:35:07that we've discussed earlier for 702 data and for purchased data ultimately did not

00:35:12become law, advancing them as far as you did was a tremendous legislative accomplishment.

00:35:19And with a YouGov poll showing that at least 70 percent of Americans support these kinds

00:35:25of warrant requirements, you can now move forward with confidence.

00:35:29Yes, you can expect whispered opposition from some elements of the intelligence community

00:35:35or the IC, but your proposals last year, as Chairman Jordan mentioned, already answered

00:35:41their main objections.

00:35:44An additional objection that we've heard frequently is that the IC will sometimes claim that a

00:35:49warrant requirement would require an additional army of FBI attorneys and FISA judges, but

00:35:56again, your proposals have a ready answer to that.

00:36:00Using the FBI's own numbers spelled out in the exhibit that's attached to my written

00:36:04testimony, the Bureau would at most have to handle an average of three additional queries

00:36:10per day requiring a warrant.

00:36:13And that's not an overwhelming burden, as former prosecutors like Mr. Knott can confirm.

00:36:19And it's a small price to pay for increasing public confidence in the entire FISA system,

00:36:25not to mention complying with the Fourth Amendment.

00:36:29In short, this committee has already proven that you can protect both the constitutional

00:36:33rights of your constituents and keep them safe, and we urge the committee to uphold

00:36:39the Constitution by once again boldly advancing and then persuading your colleagues to adopt

00:36:44these two important warrant requirements.

00:36:46I thank you again for the opportunity to testify and look forward to your questions.

00:36:50Thank you so much.

00:36:51We will now proceed under the five-minute rule with questions.

00:36:54I now recognize the gentleman from Wisconsin, Mr. Tiffany.

00:36:58Thank you, Mr. Chairman.

00:37:00Mr. Chernasky, in your testimony, I'm going to read from it, it says RISA did little in

00:37:08the form of reforms while simultaneously dangerously expanding the scope of surveillance by changing

00:37:15the definition of what was considered an electronic communications service provider.

00:37:21Could you expand on that a little bit?

00:37:23What are you talking about there that RISA actually did not solve the problem and may

00:37:29have made it worse?

00:37:30Thank you for the question, Representative.

00:37:32When we were looking at RISA last year, as a part of the reforms, they included a provision

00:37:37in there that would expand the definition of an electronic communications service provider.

00:37:41Now this used to be a more narrowly tailored thing to capture data, you know, from these

00:37:46particularized companies, but the way that they expanded the definition would capture

00:37:50a wider array of companies to virtually including everybody, right?

00:37:55And so what you ended up seeing was from the Department of Defense, or Justice, rather,

00:37:59they made a promise that, like, they were going to keep their searches for this kind

00:38:03of data a lot more limited, but, again, it is still problematic, problematic enough that

00:38:07even the chair of the Senate Intel Committee, Senator Warner, committed to trying to get

00:38:11a fix to that.

00:38:12Unfortunately, that still has not gotten done to date, but this is a real serious threat

00:38:16if now virtually anybody that has data on Americans could be subjected to being considered

00:38:21an electronic communications service provider.

00:38:24So we think the new leadership at the FBI is going to be better in terms of respecting

00:38:29people's constitutional rights.

00:38:33Should Congress just move on from this issue, or should it act?

00:38:39Thank you for the question, Representative.

00:38:40I think that in light of the fact that administrations can change, I would not want to leave it up

00:38:45for interpretation for a potential abuse underneath a future administration.

00:38:49So I do think that Congress should act to go and fix this overly broad definition of

00:38:53an electronic communications service provider.

00:38:55Mr. Scherer, could you comment on the amendment that Mr. Biggs had in his bill allowed for

00:39:03limited exceptions, yet we were being browbeaten, saying that, no, you cannot do this, you cannot

00:39:12pass the Biggs bill because there will be no way out to be able to get a perhaps bad

00:39:19actor.

00:39:21Would you care to comment on that?

00:39:22Sure.

00:39:23Well, and a number of reasons were offered for that, and my analysis is that it was all

00:39:29just fear-mongering.

00:39:30I mean, every single objection that I heard was just based on a misunderstanding of Mr.

00:39:37Biggs' amendment.

00:39:39For example, as Chairman Jordan mentioned earlier, the amendment had an exigent circumstances

00:39:46exception so that if there were a ticking time bomb, the agency could act without getting

00:39:53a warrant.

00:39:54And, of course, the amendment allowed for people to consent to searches.

00:40:00So if the FBI thought that somebody was being the subject of a cyber attack, for example,

00:40:05they could go to that person and say, we think you may be the subject of a cyber attack.

00:40:09Could we search your communication so that we can find out who it is and try to forestall

00:40:13it?

00:40:14And that person could then consent.

00:40:15And that's also a well-recognized exception under the Fourth Amendment.

00:40:19So the committee very carefully, and Chairman Biggs very carefully, built in the protections

00:40:27that the FBI might legitimately need to be able to conduct searches without a warrant.

00:40:33So the long and short of it, the Biggs' amendment dealt with what you term the exigent circumstances.

00:40:39Yes.

00:40:40It had an express exception for that.

00:40:42And it also exempted metadata searches.

00:40:46So the FBI could actually look to see who was communicating with whom under Chairman

00:40:51Biggs' amendment.

00:40:52It just couldn't actually search the communications themselves.

00:40:55I want to ask you another question.

00:40:57I'm not sure if you're going to let me know if you can answer it or not.

00:41:01In 2021, the FBI lawyer, Kevin Clinesmith, was sentenced to 12 months probation versus

00:41:08a typical five years.

00:41:11Why was that?

00:41:12Well, it was an unfortunate slap on the wrist.

00:41:16And I'm separately representing Carter Page in his litigation against the department.

00:41:21And I thought it was an outrage that Clinesmith got such a low sentence for such an egregious

00:41:26act of dishonesty before the FISA court.

00:41:29Who was the judge in that FISA court case?

00:41:31I believe it was Judge Bosberg.

00:41:33Yeah, so, Mr. Chairman, this is the same Judge Bosberg that we see regularly in the news

00:41:39these days.

00:41:40The ultimate insider judge here in Washington, D.C., gives a slap on the wrist to Kevin Clinesmith,

00:41:48who misrepresented the information out there to the detriment of, it sounds like, your

00:41:54client.

00:41:56And now is doing everything he can to keep foreign alien criminals in the United States

00:42:02rather than sending them back home.

00:42:04I yield.

00:42:05Gentleman yields.

00:42:06Chair recognizes the ranking member of the entire committee, Mr. Raskin.

00:42:10Thank you, Mr. Chairman.

00:42:11A lot of people were willing to give 702 a chance because of the various exceptions and

00:42:16amendments that were added to try to protect and insulate constitutional values.

00:42:24And specifically there, the Fourth Amendment requirement of a search warrant.

00:42:30But what's happened in the meantime has taught me, anyway, that we should never condition

00:42:35respect for constitutional values on an expectation of the goodwill of political actors in the

00:42:43executive branch of government.

00:42:45Mr. Hamadanchi, a week after he took office, President Trump fired all the Democrats on

00:42:50the Privacy and Civil Liberties Oversight Board, which we had created, leaving it without

00:42:54the quorum necessary to do business.

00:42:57Can you tell us what the Privacy and Civil Liberties Oversight Board does, or what it's

00:43:01supposed to do, and why it is a basic defeat of the legislative design that it's no longer

00:43:09functioning?

00:43:10Yeah, so the Privacy and Civil Liberties Oversight Board is designed to report on the privacy

00:43:17implications of the surveillance and counterterrorism programs of the federal government.

00:43:23And these members that have been fired, they actually demonstrated independence from the

00:43:27Biden administration in putting out a report on 702 that the Biden administration very

00:43:32much disagreed with.

00:43:35And it's not a good thing for the president to be able to fire these independent board

00:43:40members who are meant to provide independent oversight, because it chills their ability

00:43:44to provide that oversight if you think the president can fire you if you say something

00:43:47he doesn't like.

00:43:48And that is why Congress actually removed from statute language that said the president

00:43:54could fire these board members.

00:43:56And that's not a partisan thing, as you just pointed out.

00:44:01The framers of the Constitution expected anybody who got in as president to push the boundaries

00:44:06of his or her own power to the detriment of the other branches, but essentially to the

00:44:13detriment of the citizens, right?

00:44:16And so that's something we saw in the Biden administration, as you pointed out, something

00:44:20that we're seeing right now with huge red flags in the Trump administration.

00:44:25And so we've got to write laws that insulate constitutional values against anybody who

00:44:30gets in to the executive branch.

00:44:37Does this board issue reports and recommendations?

00:44:40Yes, when they have a quorum, they regularly issue reports.

00:44:43Last year they had a report on 702.

00:44:45They recently, before the firings, did a report on watchlisting programs.

00:44:51And they regularly would issue reports when they're able, when they have a quorum.

00:44:55When they haven't had a quorum, the P-Club has been much less effective.

00:45:00All right, so there's no quorum, there are no reports, there are no recommendations.

00:45:04Congress is not getting the information we need to determine whether or not in this difficult

00:45:09terrain, constitutional values are being protected against government overreach.

00:45:15So I take it you agree with me that it was bad for civil liberties and constitutional

00:45:22rights that the president fired the Democrats on the board?

00:45:25Yes, I do.

00:45:26And Mr. Chair, do you agree with that?

00:45:28We would like to see P-Club reconstituted as quickly as possible.

00:45:31Okay, Mr. Kiko, same question to you.

00:45:34The same, we would like to have it reconstituted with the same kind of people that were there.

00:45:39And Mr. Chernofsky?

00:45:40Same.

00:45:41Yeah.

00:45:42Similar to them, yes.

00:45:43We would like to see P-Club reinstituted with full membership.

00:45:46Okay, Mr. Chair, I want to ask about the reforms that Congress did make to Section 702 last

00:45:52year when we reauthorized FISA.

00:45:56The bill mandated the FBI's National Security Division report to Congress the number of

00:46:02U.S. persons, so-called backdoor searches, conducted each month.

00:46:07That is, as Chairman Jordan explained it, the data is mopped up from all of the surveillance

00:46:15of foreign persons.

00:46:17But then, since the theory is we're in lawful possession of the data, backdoor searches

00:46:22can exist for Americans.

00:46:26Why is it important for us to know the number of backdoor searches that the FBI is conducting

00:46:31on a monthly basis?

00:46:33Well, for one thing, so that you can know the extent of the issue, you can, with the

00:46:38number, you can understand better the risk to Americans' privacy of the whole 702 system.

00:46:44And I think it also enables you to evaluate claims that are made by the IC about the effect

00:46:51of additional reforms.

00:46:52I don't know how you can act and respond to their arguments without knowing exactly how

00:46:58many people—

00:46:59What was the FBI sending us before the new reporting requirements were put in?

00:47:04My understanding is that it was pretty spotty.

00:47:08And the additional reporting is going to require more staff and more support.

00:47:12And I previously learned from the National Security Division that they wanted 14 more

00:47:16people in order to comply with Congress's requirements.

00:47:20Not only have they frozen hiring, they removed the person who was responsible for managing

00:47:24all of the compliance and audits.

00:47:26So what does that mean?

00:47:27The gentleman's time has expired.

00:47:28Yeah, if I could just finish this sentence.

00:47:30What does that mean for the new statutory language that we put in?

00:47:34Well, we would certainly support staffing that very important function at NSD.

00:47:40Chair, without objection, Mr. Klein will be permitted to participate in today's hearing

00:47:45for the purpose of questioning the witnesses.

00:47:47If a member yields time for that purpose, the chair now recognizes the chairman of the

00:47:51whole committee, Mr. Jordan.

00:47:53Thank you, Mr. Chairman.

00:47:54Mr. Hamadanchi, what is the main argument the other side uses on the warrant requirement?

00:48:00We think there should be a warrant.

00:48:02They have an argument.

00:48:03Can you tell the committee what that argument is?

00:48:06They will typically say, we have lawfully collected this information already, so we

00:48:09should be able to search through it.

00:48:11The Second Circuit has recognized that the search of a U.S. person's data is a separate

00:48:16Fourth Amendment event that requires a separate Fourth Amendment analysis.

00:48:20Yeah.

00:48:21I mean, that's their argument.

00:48:22Well, we followed the law.

00:48:24We were searching foreigners overseas for intel, right?

00:48:28That's what the law says they can do.

00:48:29And they said, we followed the law, so now we can search the data for Americans.

00:48:33That's the problem.

00:48:34And the court in New York just last year said, no, no, no, you can't do that.

00:48:39The court said this.

00:48:40I mean, here's a fundamental question.

00:48:41Tell me if you agree.

00:48:42Should the government be allowed to do warrantless searches of the same information Section 702

00:48:46says it's not allowed to collect?

00:48:50The court was very clear that they should not be able to do that.

00:48:53Right.

00:48:54And the law says it.

00:48:55You're supposed to collect information on foreigners overseas for intelligence.

00:48:58And now there are people who say, no, you don't need a warrant because we're going to

00:49:01do searches for Americans using their identifiers, their email, their phone number, their name.

00:49:05Well, that's not supposed to be in there.

00:49:07And the court said, you can't have it both ways.

00:49:09That is what the other side wants.

00:49:11They want to have it both ways.

00:49:12And they can call it incidental.

00:49:14They can say we're doing a query, not really a search.

00:49:18That doesn't fly.

00:49:19And again, don't take our word for it.

00:49:21The court in New York said so December of last year.

00:49:24Is that right?

00:49:25Yes.

00:49:26And the court said, like citing the Second Circuit, that simple storage is not enough.

00:49:28And it cited, I believe, Riley versus California, which gave the example of a case where they

00:49:33had lawful possession of a cell phone.

00:49:35They still needed a warrant to be able to search the contents of that cell phone.

00:49:38Yeah, this is this is I mean, we had the chairman knows we spent a year debating this within

00:49:45our conference and with our friends on the other side last last Congress.

00:49:49And then we're about ready to go back into the same darn fight for the next year.

00:49:54But this court decision, we didn't have that last year.

00:49:57And I like the way they said it.

00:49:58They said would be it would be paradoxically paradoxical to permit warrantless searches

00:50:04of the same information that Section 702 is specifically designed to avoid collecting.

00:50:11You're not supposed to collect information on Americans.

00:50:13But oh, we did the search of foreigners and we got some.

00:50:16So now we can search Americans.

00:50:17No, that that makes no sense.

00:50:19But that has been the argument year after year, Congress after Congress.

00:50:24And hopefully we can get to common sense and what the court said this Congress and say

00:50:28time out, can't do it anymore.

00:50:31And we'll still put the exceptions in for goodness sake.

00:50:34So to answer their other argument, oh, there could be an emergency situation, imminent

00:50:38threat.

00:50:39Okay, fine.

00:50:40We don't want bad things to happen to America.

00:50:42Fine.

00:50:43You can do that.

00:50:45And if we can't get this passed, it is, I don't know, I was so frustrated because, you

00:50:50know, losing beats or winning beats losing every time and a tie is a loss.

00:50:55That's what we had last time.

00:50:56And we got to make sure we win this time, Mr. Raskin.

00:51:00We need to make sure we win this time.

00:51:04I will yield my time to the either to the to the chairman or to Mr. Klein.

00:51:09I have a minute and 40 seconds left.

00:51:10Mr. Klein.

00:51:11Mr. Klein.

00:51:15Mr. Kiko, if the government can't articulate how many Americans are being surveilled under

00:51:18Section 702, how can it claim the program is narrowly tailored to national security

00:51:22threats?

00:51:24If they can't articulate it, then they I won't say what they're doing.

00:51:29It's certainly not telling the truth.

00:51:32Is it really a national security risk to require a warrant to search the communications of

00:51:37Americans, especially if there's probable cause?

00:51:39No, it's not a national security risk.

00:51:42We collect all this incidental information, and you should have a you should have a warrant

00:51:47to search it.

00:51:48That's not why it was collected.

00:51:49It was incidental.

00:51:50And as other witnesses said, there's other ways to to to check on this information without

00:51:57without like metadata and stuff like that.

00:52:00So that's my opinion.

00:52:03Mr. Cernyasky, you've spoken about how government overreach and tech policy.

00:52:08So how do we justify allowing the government to query vast databases of Americans' private

00:52:12communications without a warrant, especially when those queries are increasingly used in

00:52:15routine criminal investigations?

00:52:17To me?

00:52:19Yeah.

00:52:20Thank you for the question, Representative.

00:52:21I don't think you can justify it.

00:52:22At the end of the day, when people discover that the government has violated their trust

00:52:26by violating their Fourth Amendment rights to search these vast databases for their communications,

00:52:30that that undermines their faith and trust in a key institution that they believe is

00:52:34supposed to be protecting them.

00:52:36And it's quite chilling for them to realize that that weapon is being turned inward and

00:52:40being leveraged against them to spy on them when they've not necessarily done anything

00:52:44wrong.

00:52:45I'm going to ask the ACLU witness whose name I can't read on that on that.

00:52:51Can you give us an update on the status of the decision?

00:52:54Was it appealed from the Second Circuit?

00:52:57So the decision was a district court decision.

00:53:01The defendant lost on separate grounds.

00:53:03And so it would actually be the defendant who has to appeal it, not the government.

00:53:07The government can't actually appeal that decision, and I'm not sure what the defendant

00:53:10plans on doing.

00:53:11Gentleman's time has expired.

00:53:13Chair recognizes the gentleman from New York, Mr. Golden.

00:53:16Thank you, Mr. Chairman.

00:53:17I do look forward to having this debate as someone who spent 10 years writing, drafting,

00:53:23and getting warrants through courts and recognizing also the exigent circumstances that often

00:53:34exist with the 702 information.

00:53:39It is not as simple as my friend the chairman at the end would have you believe, and I probably

00:53:46disagree with some of the witnesses here today as well.

00:53:50But the problem I have with this hearing is, this is an important argument, but it

00:53:57pales in comparison to what's going on right now with Americans' privacy, with Americans'

00:54:05national security.

00:54:07We're talking about whether there should be a warrant to search a certain amount of information

00:54:14lawfully collected from foreigners.

00:54:17It's not a broad set of information, and yet some non-government employee, Elon Musk, is

00:54:30getting access to every single American's personal identification information.

00:54:36Every – his employees, some of whom have been – who have already been found to have

00:54:43stolen information from one company to bring to another competitor, are getting access

00:54:50to Americans' personal identification information, whether it be through the Social Security

00:54:54Administration, it be through the Department of Treasury.

00:54:59So it feels like this hearing, while important, is somewhat misguided at this time when the

00:55:06privacy considerations of every American is at risk, rather than a very narrowly tailored

00:55:13set of Americans who are communicating with foreigners who have – who are suspected

00:55:21or potentially suspected of being involved in adversarial actions against the United

00:55:27States.

00:55:28The other thing that I would – I want to bring up with our friends here is the threat

00:55:35to national security.

00:55:38We're talking a lot about that in this hearing, and obviously 702 is designed to protect our

00:55:42national security.

00:55:45As many of you know, I'm sure, last week, I believe it was, the NSA director, General

00:55:54Timothy Hawk, widely, widely respected, a career national security official overseeing

00:56:02the national – the NSA, which is principally responsible for using Section 702 materials

00:56:14and gathering Section 702 materials, he was fired.

00:56:19Do you know why he was fired, Mr. Hamadanchi?

00:56:23The reporting is that there were certain people who convinced the president, specifically

00:56:27Laura Loomer, that he should be fired.

00:56:29Laura Loomer, yes.

00:56:31Laura Loomer went in and had a meeting with the president and urged that General Hawk

00:56:39should be fired because he was handpicked by General Mark Milley, who was the chairman

00:56:45of the Joint Chiefs of Staff in 2023 when Hawk was nominated to lead both the Cyber

00:56:50Command and the NSA.

00:56:52Now this is the same Laura Loomer who says 9-11 was an inside job, who has openly advocated

00:56:59at a white nationalist conference that she is a white advocate, who said during the campaign

00:57:05that if Kamala Harris, who is half Indian, won, that the, quote, the White House would

00:57:10smell like curry and White House speeches will be facilitated via a call center, who

00:57:15has said that numerous mass shootings are all hoaxes and conspiracies, who calls herself

00:57:22a proud Islamophobe and perpetuated the completely bogus conspiracy theory about Haitian immigrants

00:57:30in Ohio, and yet she is given access to the president of the United States to make a national

00:57:37security recommendation that, coincidentally or not, the next day happened.

00:57:46How does this affect our national security, Mr. Hamadanchi, when a conspiracy theorist

00:57:52who is denounced by numerous Republicans is effectively making decisions about who oversees

00:58:01our most sensitive collection agency?

00:58:04So I think the first question is whether or not the NSA director refused to follow any

00:58:09illegal orders.

00:58:10The reporting does not indicate that.

00:58:13The second question is, have there been any policy changes at the NSA since President

00:58:17Trump took office?

00:58:18That's something that this committee should look at.

00:58:20And the third question is, who is the president going to replace the NSA director with if

00:58:24that person is unqualified, if that person has the potential to abuse the authority of

00:58:30the NSA?

00:58:31And that's something that Congress should weigh in on if that's the case.

00:58:35And I agree with you, Mr. Chairman, I will, if I could have just one second.

00:58:38No, you can't.

00:58:39I agree.

00:58:40I hope you do look into that.

00:58:41Time has expired.

00:58:42It's more important than Section 702 right at this minute.

00:58:45Thank you, Mr. Goldman.

00:58:46The chair now recognizes the gentleman from Alabama, Mr. Moore.

00:58:49Thank you, Mr. Chairman.

00:58:50Mr. Chair, quick question.

00:58:53The Crossfire Hurricane investigation and subsequent surveillance of Carter Page revealed

00:58:57dysfunction and political bias, obviously on the part of the FBI leadership, but also

00:59:01it revealed problems with FISC.

00:59:03Is that correct?

00:59:05It did.

00:59:07It illustrated that FISC does not always examine the warrant applications under Title One

00:59:12with sufficient care.

00:59:13And that's one of the reasons that our organization, working with Senator Lee and many others,

00:59:19has been pushing for reforms at the FISC that would allow amici, friends of the court, to

00:59:24participate in important FISC proceedings to ensure that privacy is protected.

00:59:30So one of the reforms, are there other reforms that you recommend to help as we work through

00:59:34this process of reauthorizing 702 that we could put into the law that would help eliminate

00:59:40some of these abuses?

00:59:41And, Lord, there have been a number of them.

00:59:44Well, the amicus requirements were strengthened somewhat in RESA.

00:59:48I think they can be strengthened still further.

00:59:52RESA did contain a very useful provision in that it allowed the chair and the ranking

00:59:57member of this committee, for example, to sit in on FISC proceedings so that there's

01:00:00more of a window of transparency there.

01:00:04And certainly FISC needs additional staff.

01:00:08They need to have additional people who are cleared so that they can process their business

01:00:13more expeditiously.

01:00:16Also RESA, I think we put in, required the same judge to renew the application process.

01:00:23Is that?

01:00:24Yes.

01:00:25And there were some other things, too.

01:00:26One of the things, the reason I was a no vote is I thought there should be a warrant requirement.

01:00:32Would you agree with that?

01:00:33Absolutely.

01:00:34And so that was stripped out at the end.

01:00:35And that was a tough vote for many of us.

01:00:37We wanted to do what we could to renew this thing, but when you got, you know, when I

01:00:41came to D.C., they wanted to issue me another government phone, and I said, I think you

01:00:48just need to put everything on one phone.

01:00:50They're like, well, sir, if we do that, we're going to know everything that's on your phone.

01:00:52I thought to myself, like, you don't already, right?

01:00:55So as we're going through these hearings, we understand they're spying on U.S. citizens

01:00:58without warrants.

01:00:59And so that was one of the things that I thought we absolutely needed to do.

01:01:02And what are improvements that Congress can consider to, for FIST on how it operates?

01:01:07Some other improvements as we're going through this process?

01:01:11None beyond those I've just mentioned.

01:01:13Okay, so very good.

01:01:15Mr. Chernowsky, will you explain how the government has abused non-disclosure orders relating

01:01:20to the use of information obtained under FISA?

01:01:22Yeah.

01:01:23Thank you for the question, Representative.

01:01:25The government has utilized the information gathered underneath FISA in numerous of instances

01:01:30to spy on Americans, whether that was spying on protesters during the Black Lives Matter

01:01:34riots or looking at the communications of 19,000 donors to a political campaign.

01:01:41The list goes on and on.

01:01:43And really, when people see that revelation coming out after the fact, it does undermine

01:01:48their trust because they feel that the government now is starting to snoop at them.

01:01:52That has a real chilling effect.

01:01:53If now, simply because you want to support a candidate, now you could be subjected to

01:01:59government surveillance.

01:02:00I think that that is a pretty unnerving kind of outcome for people to see carry out.

01:02:04And even in this most recent iteration, the FISA reauthorization fight, to see that those

01:02:08surveillance authorities had been abused to spy on a sitting member of Congress, a sitting

01:02:13member of the Senate, it showed to me that the intelligence community seemingly had no

01:02:18self-restraint on what they were willing to do in order to get access to whatever information

01:02:22they thought was necessary.

01:02:23And that's really alarming.

01:02:25Extremely alarming.

01:02:26And for those of us, one of the top issues was always the weaponization of the government.

01:02:30And certainly, certain members were spied on, and like you said, members of Congress.

01:02:34And with that, Mr. Chairman, I'll yield my remaining time to our friend, Mr. Kline, if

01:02:41he wants to take it.

01:02:42If not, I'll yield back to you.

01:02:45I appreciate the yielding.

01:02:48Mr. Kiko, do you think you would support an independent audit of these queries conducted

01:02:54under 702?

01:02:56Yeah, I would support that.

01:02:59How else can we ensure meaningful congressional oversight when most of the relevant details

01:03:03are classified and shielded from public scrutiny?

01:03:05Well, I just think that there's a lot of requirements that are already in the law.

01:03:14And I just would hope that the requirements are adhered to in a very quick manner.

01:03:22The audits are done in a very quick manner, and the audits and requirements are audited

01:03:29in the next year.

01:03:31So if they're not complied with, then you can deal with that through the next reauthorization.

01:03:36But I do think that the IG was very good in coming up with all the problems and everything,

01:03:44and that Congress responded to 15 or 20 requirements.

01:03:50But it's basically – basically, oversight is – you have to bring the intelligence

01:03:55community to heel.

01:03:58The gentleman's time has expired, and I'll recognize the gentleman from California, Mr.

01:04:03Kiley, for five minutes.

01:04:07Thank you, Mr. Chair.

01:04:08I think it's important to note at the outset the successes that we did have in the last

01:04:13Congress in reauthorizing FISA for the protection of America and American national security,

01:04:20while instituting some truly significant reforms, which were developed through the painstaking

01:04:26work of this committee and in a bipartisan way, in a committee that's not always known

01:04:30for its spirit of kumbaya bipartisanship.

01:04:33We were able to find a lot of common ground in protecting civil liberties without burdening

01:04:40the ability of our national security officials to protect Americans.

01:04:46However, there is, as Chairman Jordan noted, more work to do.

01:04:50But I do think it's important to look at what was done in the bill that was signed

01:04:54into law in the last Congress.

01:04:56We had reforms that included new and heightened civil and criminal penalties for those who

01:05:00violate the terms of the FISA authorities, and it required reporting on FBI disciplinary

01:05:05investigations.

01:05:06It requires the FBI to establish minimum accountability standards for violations of the querying process.

01:05:11The bill significantly reduced the number of FBI personnel authorized to approve queries,

01:05:17required audits of U.S. person queries, and included increased transparency measures,

01:05:21among other important reforms.

01:05:25So I think there is a broader question here, though, when it comes to the pace at which

01:05:32we are seeing technology develop and the newfound opportunities that that opens up for very

01:05:39problematic violations of privacy or uses of surveillance, but then at the same time

01:05:46the opportunities to perhaps use that technology not only to advance national security and

01:05:52public safety, but to do so in a more narrowly tailored way.

01:05:56So advances in AI are an example of that, where there are obviously a host, an unlimited

01:06:03variety of potentially problematic uses by those who are entrusted with the power to

01:06:12investigate American citizens, but then there are also already a number of very positive

01:06:17proven use cases.

01:06:19And so my thought, and I'll maybe direct this at you, Mr. Hamadanchi, is on how we can harness

01:06:27this technology in the right way going forward.

01:06:29You give an example, I think, of how there was one police agency in Florida that – or

01:06:36maybe this was you, so either of you can weigh in on it – but that used an algorithm to

01:06:43try to predict where crimes were more likely to occur, and that seems like it actually

01:06:47could be helpful if it allows us to allocate police resources in the right way, but maybe

01:06:51unhelpful if it leads to, you know, people being targeted prematurely or in a way that

01:06:58violates their civil liberties.

01:06:59So I guess I'll give either of you an opportunity to opine on that.

01:07:02Maybe we'll start with Mr. Hamadanchi, and then since I misremembered who actually gave

01:07:06this example, I'll give you the opportunity as well.

01:07:09I would say we're definitely concerned about the use of AI in surveillance.

01:07:13And more than four years ago, we had a report where intelligence agencies were saying they

01:07:17want to embed AI in every stage of the intelligence cycle, and the NSA stands out in this context

01:07:23because it has described itself as a leader in integrating AI into intelligence gathering.

01:07:29And there are real concerns that AI is being used to automate target selection and potentially

01:07:34initiating surveillance without adequate human review, and that's something the committee

01:07:39should look into as it considers these issues.

01:07:43Thank you for the question, Representative.

01:07:44I think that it is incredibly important.

01:07:46As you rightly know, artificial intelligence is a tool.

01:07:49It's a pretty neutral, values-neutral kind of thing.

01:07:51It depends on who's using it as to whether or not that can be used for good or for bad.

01:07:56And it's really unfortunate when we see instances like what happened in Florida where they were

01:07:59using AI to develop this algorithm to identify prolific offenders and then give them, you

01:08:05know, community visits.

01:08:08One such person ended up in the hospital with symptoms of an anxiety attack because of the

01:08:12presence of law enforcement coming up and showing on their door.

01:08:16You can imagine that that is a very frightening experience for some people.

01:08:19So I think that it just reinforces the need.

01:08:21I don't want to go and take away a tool from law enforcement from being able to leverage

01:08:25a tool like artificial intelligence or other technologies that are out there.

01:08:28But I do think that it's important to make sure that if they're going to be using it,

01:08:32that we have proper rules and guidelines and procedures in place to minimize the potential

01:08:36downside here.

01:08:37Because when the state does leverage these technologies and they get it wrong, the costs

01:08:41are really high, both for the city that ultimately bears the responsibility of the legal action

01:08:45that follows and for the victims in that case.

01:08:48So I think that there's a really good conversation to be had about what we can do to go and better

01:08:52set guardrails around this so that law enforcement doesn't lose access to critical tools that

01:08:56can help them with their public safety functions while simultaneously protecting people's Fourth

01:09:01Amendment rights.

01:09:02Yeah.

01:09:03And I'll add to that, that getting this right is really important, not just for protecting

01:09:07civil liberties in the first instance, but also because there are so many truly beneficial

01:09:13applications of AI in this and other contexts, and that if we don't get these threshold questions

01:09:18right for protections, then it could lead to a backlash that undoes those possibilities.

01:09:22And with that, I yield back to the chair.

01:09:23Thanks.

01:09:24I thank the gentleman.

01:09:25Chair recognizes now the gentlelady from Florida, Ms. Lee.

01:09:30Thank you, Mr. Chairman, for convening this important hearing.

01:09:33Thank you to our witnesses who have joined us today to provide testimony.

01:09:37This committee remains committed to restoring public trust in our federal law enforcement

01:09:42agencies, and a critical part of that involves holding open, informed conversations with

01:09:48experts like yourself to identify areas of proposed reform and change that we can then

01:09:54use to inform our work in collaboration with the intelligence community.

01:09:58Last Congress, I was proud to lead the RISA bill that we've been discussing here today,

01:10:03which made significant reforms to how our federal law enforcement agencies handle, collect,

01:10:10and retain critical intelligence.

01:10:13This legislation was an important first step in our broader effort to rebuild confidence

01:10:18in the intelligence community and to keep America secure.

01:10:22There is no question that the abuses that we have seen, particularly in the FBI's handling

01:10:27of Section 702 information, are deeply troubling, and the surveillance, unauthorized or unlawful,

01:10:33of American citizens must be stopped.

01:10:36It should not have happened, and it must not happen going forward, which is why accountability

01:10:42and transparency and the things that we are discussing here today are so important.

01:10:48But it is also important that any discussion that we have about 702 include a recognition

01:10:53of why we have it and why it exists, and that this is a vital part of our country's intelligence-gathering

01:11:02capabilities.

01:11:03It is an essential component of what we do, and it is necessary that this conversation

01:11:09center on how we make it better, how we ensure accountability and transparency without dismantling

01:11:16it.

01:11:17With that in mind, I appreciate your efforts to help us strike that balance and identify

01:11:24where we can further improve and strengthen FISA overall and Section 702 in particular.

01:11:32Mr. Schur, I would like to start with you and, in particular, return to the discussion

01:11:37you were just having about the FISC and some of the reforms that we implemented in the

01:11:43FISC to ensure a greater level of accountability and a prevention of some of the abuses that

01:11:49we have seen in the past.

01:11:50In particular, as you know, the Risa bill implemented inclusion of a more adversarial

01:11:57process for FISC proceedings.

01:11:59You just mentioned you thought we could do more there with AMIKI.

01:12:03I would love to hear more about your thoughts about how that program could be further enhanced.

01:12:08My recollection of Risa is that – and I agree with you, Congresswoman Lee, that there

01:12:14were some very useful reforms in Risa, and we should look to build on those rather than

01:12:20tear them down.

01:12:21But I think, one, with respect to AMIKI and the FISA Accord, I think that one limitation

01:12:26is that currently AMIKI are only appointed if the judge decides that an amicus would

01:12:33be helpful.

01:12:34And so that obviously leaves the FISC judge with lots of discretion as to whether to appoint

01:12:40an amicus.

01:12:41We would prefer to see that expanded somewhat so that there's a category of cases where

01:12:47the judges are expected to appoint AMIKI.

01:12:50For example, cases that obviously involve sensitive political issues or religious issues

01:12:58like the FBI's investigation of the traditionalist Catholics down in Richmond last year or a

01:13:05couple of years ago.

01:13:07Those kinds of situations – and you can identify categories of situations where an

01:13:11amicus at least presumptively should be appointed.

01:13:17But if an amicus is not going to be appointed, then the judge should have to explain why

01:13:20not.

01:13:21And I would note a couple of additional reforms we made specifically in the FISC that were

01:13:26targeted to prevent some of the past abuses we've seen.

01:13:30One, a requirement that exculpatory evidence be included in an application before the FISC.

01:13:36And second, also that opposition research could not be the basis for granting of a warrant

01:13:42by the FISC.

01:13:43Are there other things that you think – first off, do you find those reforms to be something

01:13:48that was productive and useful?

01:13:49And second, are there other things you think we should get at or address there with the

01:13:54FISC?

01:13:55Yeah.

01:13:56Absolutely.

01:13:57Those were important reforms, for sure.

01:14:01I think one additional thing that would be very useful is to provide – create a system

01:14:07whereby people whose rights are abused in the FISC court, for example, like the Kevin

01:14:14Clinesmith situation, make clear in the law that people who are victims of that are entitled

01:14:20to compensation when that happens.

01:14:22That will not only be fair to those people, but also will provide an added deterrent to

01:14:28abuse.

01:14:29Thank you, Mr. Chairman.

01:14:30My time has expired.

01:14:31Thank you, gentlelady.

01:14:32The chair now recognizes the gentleman from North Carolina, Mr. Knott.

01:14:38Thank you, Mr. Chairman.

01:14:39Thank you for having this hearing.

01:14:40To all of the members and the guests, thank you for your participation.

01:14:44I come at this line of questions from my own experience as a federal prosecutor.

01:14:51I have actually engaged in surveillance of American citizens through a process called

01:14:57the Title III wiretap, and the level of protections that are required to get to the actual flipping

01:15:03of the switch, it's fairly astounding.

01:15:06Obviously, it's one of the more intrusive investigative techniques, so you have to demonstrate

01:15:11necessity.

01:15:12You have to demonstrate why other techniques are futile, and candidly, once we would go

01:15:18to trial or once we would charge the case, the rigor that we had to exercise was very

01:15:22important for a number of reasons.

01:15:24Obviously, it kept the internal investigators accountable.

01:15:29It kept the process, once the investigation was ongoing, it kept it open and honest.

01:15:35They knew that their actions were going to be subject to pen and paper.

01:15:38They were going to be subject to judicial review, and then obviously with opposing counsel,

01:15:43they would review it.

01:15:45But also, when we would go to court, and if there was a jury trial, the jury themselves

01:15:50would know these actions, this evidence was collected with sufficient predication.

01:15:55I do find it somewhat, I don't want to say troubling yet, but it is amazing to me that

01:16:02there's so much resistance to the warrant requirement alone.

01:16:06In that vein, with the Title III wiretap on one side, I'm very familiar with how the evidence

01:16:12is collected, how it's stored, how it's accessed.

01:16:15Mr. Chernowski, if you could explain with the 702 program and the FISA court, how is

01:16:23the data that's collected under that subsection, how is it, again, collected, stored, and then

01:16:28accessed?

01:16:30If that makes sense, just tactically, and in a physical server, how is it collected

01:16:37and stored and accessed?

01:16:38Yeah.

01:16:39So, it is stored on a secure server, and the backdoor search loophole is, I think, what

01:16:45really is why this is so important, right?

01:16:47Because this is basically allowing the government's ability to search the communications that

01:16:51they've incidentally collected, or as Chair Jordan has referred to it, incidental, collection

01:16:56of Americans' information during the surveillance of foreign targets, all without a warrant,

01:17:01right?

01:17:02Right.

01:17:03So, this warrant requirement that we've been advocating for adds that necessary layer of

01:17:05protection because, as you pointed out, as we're using warrants, basically, as a procedural

01:17:11matter of demonstrating, like, why we got to where we got.

01:17:14And that's really important that when we're talking about foreigners, like, that's fine

01:17:18if we're going to go and engage in surveillance.

01:17:19But once those surveillance powers turn inward and we're trying to tap into that data that

01:17:24we have collected, then we have that warrant process carried out.

01:17:26So, that way, we have due process.

01:17:27And when that much information is readily available, the natural trend throughout history,

01:17:32regardless of who's in power, obviously, people on my side of the aisle are very distrustful

01:17:37given what happened with President Trump.

01:17:39But there have been conservative abuses when we're in power, without question.

01:17:43Absolutely.

01:17:44And in regards to that information, how easy is it to access once it's collected?

01:17:50It's fairly easy for people to go and access that, and that's why we've seen through the

01:17:53litany of abuses as to why that information needs to have a better tight end control.

01:17:58Now, admittedly, as Representative Lee was talking about, they've done some limited changes

01:18:03in RISA to go and talk about what kinds of members of the FBI can go and query that data.

01:18:09But we believe that that's still not sufficient.

01:18:11This is why we want that warrant requirement, so that way we can have that procedural accountability

01:18:16of who's tapping into it and be able to have that necessary.

01:18:19Is there any way with the current technology infrastructure to determine how often that

01:18:24material is accessed and by whom?

01:18:27Right now, I think that it is a challenge in its own right, because we don't have full

01:18:30transparency into who's querying.

01:18:32It's a huge problem.

01:18:33It's a massive problem.

01:18:34It's a huge problem.

01:18:35Yes, absolutely representative.

01:18:36Mr. Scheer, let me talk to you real quickly.

01:18:39In regards to, you mentioned earlier that you work with Carter Page, that obviously

01:18:43highlights a lot of abuses, again, for political purposes, which is what the Fourth Amendment

01:18:48is designed, in part, to protect against.

01:18:52What type of penalties, what type of deterrences are there for the law enforcement community

01:18:59if they abuse the 702 access and information, currently?

01:19:05Well, currently, for one thing, there's no personal liability if somebody abuses that

01:19:10system.

01:19:12There's only the potential for liability against the government itself, if you can jump through

01:19:17the necessary hoops.

01:19:19No matter how opaque this process is, that's very hard to build a case against.

01:19:23It's very difficult.

01:19:24Yes.

01:19:25I mean, in the Title III wiretap affidavit, if you lie, if you submit false information,

01:19:30you'll be charged.

01:19:31You could lose your law license, et cetera.

01:19:34Right.

01:19:35We don't yet have those kinds of protections in the 702 area.

01:19:40We moved a lot closer to them with RISA.

01:19:43Well, I could go a lot longer, but Mr. Scheer, five minutes goes very fast.

01:19:48Yeah, thanks.

01:19:49The gentleman's time has expired.

01:19:51I now yield to myself five minutes.

01:19:54So I, like all of you, I want to see PCLOP back up and running.

01:19:59But I'll ask you, Mr. Hamadachi, is this the first time that we've been without a quorum

01:20:03on PCLOP?

01:20:05It is not.

01:20:06Yeah.

01:20:07It's not.

01:20:08We need to get it up and running as quickly as possible.

01:20:10But it's not – this isn't necessarily unique.

01:20:13It needs to get fixed, though.

01:20:17I wanted to ask you a question because you responded, and I'm going to tell you how

01:20:21I interpreted your answer, why the firing took place.

01:20:28And you said it was reported that Laura Loomer recommended that.

01:20:33I interpret that as being that you're like me.

01:20:36I don't know why he was fired.

01:20:37Yeah, I only know the reports that I read.

01:20:41And I will say that there's a difference, I think, also between a job like the NSA where

01:20:44the president has the authority to fire someone, where with PCLOP, that's an independent

01:20:48oversight board, and the president should not be able to fire those board members.

01:20:52But he currently has the authority now, but maybe some reform there is what you're suggesting.

01:20:58So we would argue that he did not have the authority to fire the PCLOP members.

01:21:01Okay.

01:21:02All right.

01:21:03Fair enough.

01:21:04So I want to – I'm going to go on here.

01:21:05Mr. Scherr, you reported that there was – you indicated that there was some reported abuse

01:21:11even perhaps post-RISA.

01:21:13Can you give us an idea?

01:21:15Yes.

01:21:17And that's from an ODNI report from after RISA was passed that described a number of

01:21:26additional abuses, including congressional staffers and a number of federal employees

01:21:32and even the spouse of somebody who was – who had requested a security clearance.

01:21:39It's remarkable because RISA was supposed to take care of probably that very kind of

01:21:45thing and failed to do so, which is indicative that we need to do more.

01:21:50Mr. Kiko, so I would venture to say – and I – the chair is gone, but the ranker is

01:21:57still here – RISA allowed for the chair and the ranker to attend FISC hearings.

01:22:04My guess is that they haven't been able to – actually, we've got a busy schedule,

01:22:08so probably did not get to do that.

01:22:11We actually were trying to get that expanded, those of you who are participating with us,

01:22:16so there would be more members of Congress who could actually get there.

01:22:19Do you know if the chairman or the ranker have been able to actually attend a FISC hearing?

01:22:25No, I do not.

01:22:27And you've indicated there should be some more oversight.

01:22:31How do we get more vigorous oversight in a shortened answer?

01:22:36How would you say we do that?

01:22:38I would just –

01:22:39You need the microphone, please.

01:22:40Yeah, I see that.

01:22:41I would – I would just have meetings, you know, all the time.

01:22:47I would have somebody, whoever is your oversight person, call these people up and say, where

01:22:54are you on this, give a report, because there's – you know, there's 15 or 20 requirements

01:23:00that are new requirements in RISA, and you should hold their feet to the fire and get

01:23:05in coordination with the inspector generals and have a whole bunch of stuff done that

01:23:11way.

01:23:12But I did mention in my testimony, though, there was a requirement that for one of the

01:23:20intelligence agencies to use, I think it was the FBI, AI, to make sure that there's compliance.

01:23:26And I don't know why this body, your committee, shouldn't be able to real-time make sure

01:23:34that there is compliance, and what does that compliance look like?

01:23:39And just make sure that they are complying with everything, because you're going to

01:23:42be reauthorizing the bill, you know, in a year.

01:23:45I agree with you.

01:23:46We need to be more vigorous in our oversight, definitely and for sure.

01:23:51Mr. Chernowsky, the warrant requirement – and Mr. Knott alluded to this – a lot of people

01:24:03think that's just too onerous to get, but with the recent court ruling, but beyond that,

01:24:10if there are exigencies in there, do we miss any exigencies, any exceptions when we put

01:24:15together the amendment to the proposed bill last year?

01:24:21Thank you for the question, Mr. Chair.

01:24:23And I believe that the warrant – the exceptions to the warrant amendments that you put together

01:24:28during the last Congress were quite robust in terms of providing the needed flexibility

01:24:33for the agencies to conduct their surveillance without necessarily needing to worry about

01:24:38that.

01:24:39So I think that you did a very good job with that, sir.

01:24:43I would say that – I'm where Chairman Jordan is – I thought we actually opened the door

01:24:47up too wide, broader than you would have in a normal Fourth Amendment exigency circumstance.

01:24:54But needless to say, we're going to work on this.

01:24:57I appreciate all of you being here today, appreciate your testimony, and I think more

01:25:02reforms ahead, to be frank with you.

01:25:05And so with that, thank you all, and we're adjourned.

Judiciary Committee Holds Hearing On 'Continued Pattern Of Government Surveillance Of U.S. Citizens'

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