[House Hearing, 117 Congress]
[From the U.S. Government Publishing Office]


                 SECRECY ORDERS AND PROSECUTING LEAKS:
                 POTENTIAL LEGISLATIVE RESPONSES TO DETER 
                      PROSECUTORIAL ABUSE OF POWER

=======================================================================

                                HEARING

                               BEFORE THE

                       COMMITTEE ON THE JUDICIARY

                     U.S. HOUSE OF REPRESENTATIVES

                    ONE HUNDRED SEVENTEENTH CONGRESS

                             FIRST SESSION

                               __________

                        WEDNESDAY, JUNE 30, 2021

                               __________

                           Serial No. 117-31

                               __________

         Printed for the use of the Committee on the Judiciary
         
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]         


               Available via: http://judiciary.house.gov
               
                              __________

                    U.S. GOVERNMENT PUBLISHING OFFICE                    
48-313                     WASHINGTON : 2022                     
          
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                       COMMITTEE ON THE JUDICIARY

                    JERROLD NADLER, New York, Chair
                MADELEINE DEAN, Pennsylvania, Vice-Chair

ZOE LOFGREN, California              JIM JORDAN, Ohio, Ranking Member
SHEILA JACKSON LEE, Texas            STEVE CHABOT, Ohio
STEVE COHEN, Tennessee               LOUIE GOHMERT, Texas
HENRY C. ``HANK'' JOHNSON, Jr.,      DARRELL ISSA, California
    Georgia                          KEN BUCK, Colorado
THEODORE E. DEUTCH, Florida          MATT GAETZ, Florida
KAREN BASS, California               MIKE JOHNSON, Louisiana
HAKEEM S. JEFFRIES, New York         ANDY BIGGS, Arizona
DAVID N. CICILLINE, Rhode Island     TOM McCLINTOCK, California
ERIC SWALWELL, California            W. GREG STEUBE, Florida
TED LIEU, California                 TOM TIFFANY, Wisconsin
JAMIE RASKIN, Maryland               THOMAS MASSIE, Kentucky
PRAMILA JAYAPAL, Washington          CHIP ROY, Texas
VAL BUTLER DEMINGS, Florida          DAN BISHOP, North Carolina
J. LUIS CORREA, California           MICHELLE FISCHBACH, Minnesota
MARY GAY SCANLON, Pennsylvania       VICTORIA SPARTZ, Indiana
SYLVIA R. GARCIA, Texas              SCOTT FITZGERALD, Wisconsin
JOE NEGUSE, Colorado                 CLIFF BENTZ, Oregon
LUCY McBATH, Georgia                 BURGESS OWENS, Utah
GREG STANTON, Arizona
VERONICA ESCOBAR, Texas
MONDAIRE JONES, New York
DEBORAH ROSS, North Carolina
CORI BUSH, Missouri

       PERRY APELBAUM, Majority Staff Director and Chief Counsel
              CHRISTOPHER HIXON, Minority Staff Director 
                              ------                                
                              
                            C O N T E N T S

                        Wednesday, June 30, 2021

                                                                   Page

                           OPENING STATEMENTS

The Honorable Jerrold Nadler, Chair of the Committee on the 
  Judiciary from the State of New York...........................     2
The Honorable Jim Jordan, Ranking Member of the Committee on the 
  Judiciary from the State of Ohio...............................     3

                               WITNESSES

Eve Burton, Executive Vice President & Chief Legal Officer, 
  Hearst Corporation
  Oral Testimony.................................................     6
  Prepared Testimony.............................................     8
Tom Burt, Corporate Vice President, Customer Security & Trust, 
  Microsoft Corporation
  Oral Testimony.................................................    20
  Prepared Testimony.............................................    22
Jonathan Turley, J.B. and Maurice C. Shapiro Professor of Public 
  Interest Law, The George Washington University Law School
  Oral Testimony.................................................    29
  Prepared Testimony.............................................    31
Lynn Oberlander, Of Counsel, Ballard Spahr LLP
  Oral Testimony.................................................    47
  Prepared Testimony.............................................    49

          LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

Materials submitted by the Honorable Jerrold Nadler, Chair of the 
  Committee on the Judiciary from the State of New York for the 
  record
  A letter from 23 civil society organizations, June 18, 2021....    64
  A statement from Frederick J. Ryan, Jr., CEO & Publisher, The 
    Washington Post..............................................    66
  A statement from Karen Kaiser, Senior Vice President, General 
    Counsel and Corporate Secretary, The Associated Press........    68
An article entitled, ``Rosenstein launched `hostile' attack in 
  May against Republicans over Russia records: congressional 
  email,'' Fox News, submitted by the Honorable Matt Gaetz, a 
  Member of the Committee on the Judiciary from the State of 
  Florida for the record.........................................    88

 
                 SECRECY ORDERS AND PROSECUTING LEAKS:
                   POTENTIAL LEGISLATIVE RESPONSES TO.
                   DETER PROSECUTORIAL ABUSE OF POWER

                              ----------                              


                        Wednesday, June 30, 2021

                        House of Representatives

                       Committee on the Judiciary

                             Washington, DC

    The Committee met, pursuant to call, at 10:08 a.m., in Room 
2141, Rayburn House Office Building, Hon. Jerrold Nadler [Chair 
of the Committee] presiding.
    Present: Representatives Nadler, Lofgren, Jackson Lee, 
Cohen, Johnson of Georgia, Bass, Jeffries, Cicilline, Swalwell, 
Lieu, Raskin, Jayapal, Demings, Scanlon, Garcia, McBath, 
Stanton, Dean, Escobar, Jones, Ross, Bush, Jordan, Chabot, 
Buck, Gaetz, Johnson of Louisiana, Biggs, McClintock, Massie, 
Bishop, Fisch-bach, Spartz, Fitzgerald, Bentz, and Owens.
    Staff Present: Aaron Hiller, Deputy Chief Counsel; Arya 
Hari-haran, Chief Oversight Counsel; John Doty, Senior Advisor; 
Moh Sharma, Director of Member Services & Outreach and Policy 
Advisor; Jacqui Kappler, Oversight Counsel; Priyanka Mara, 
Professional Staff Member and Legislative Aide; Cierra 
Fontenot, Chief Clerk; Gabriel Barnett, Staff Assistant; Ben 
Hernandez-Stern, Counsel, Subcommittee on Crime, Terrorism, and 
Homeland Security; Ken David, Minority Counsel; Sarah Trentman, 
Minority Senior Professional Staff Member; Michael Koren, 
Minority Senior Professional Staff Member; and Kiley Bidelman, 
Minority Clerk.
    Chair Nadler. The House Committee on the Judiciary will 
come to order.
    Without objection, the Chair is authorized to declare 
recesses of the Committee at any time.
    We welcome everyone to this morning's hearing on ``Secrecy 
Orders and Prosecuting Leaks: Potential Legislative Responses 
to Deter Prosecutorial Abuse of Power.''
    Before we begin, I would like to remind Members that we 
have established an email address and distribution list 
dedicated to circulating exhibits, motions, or other written 
materials that Members may want to offer as part of our hearing 
today. If you would like to submit materials, please send them 
to the email address that has been previously distributed to 
your offices, and we will circulate the materials to Members 
and staff as quickly as we can.
    For those in the room, current guidance from the Office of 
the Attending Physician is that individuals who are fully 
vaccinated for COVID-19 do not need to wear a mask or maintain 
social distancing. Fully vaccinated individuals may of course 
choose to continue wearing masks based on their specific risk 
considerations. If you are not fully vaccinated, the Office of 
the Attending Physician requires you to wear a mask and 
maintain six feet of social distance.
    Finally, I ask all Members, both those in person and those 
appearing remotely, to mute your microphones when you are not 
speaking. This will help prevent feedback and other technical 
issues. You may unmute yourself anytime you seek recognition.
    I will now recognize myself for an opening statement.
    On May 7th, 2021, The Washington Post reported that the 
Trump Administration secretly obtained phone records and had 
sought email records of certain of its reporters. Later reports 
showed that the department made similar attempts to access the 
communications records of a CNN reporter and multiple 
journalists at The New York Times.
    On June 10th, it was reported that the Trump Administration 
had also requested the records of multiple Members of Congress, 
their family members, and congressional staff. On June 13th, 
The New York Times reported that the Trump Administration had 
sought similar records from accounts associated with former 
White House counsel Don McGahn.
    Even if that were the end of the story, if all the 
Department had done was target these reporters and these 
Members of Congress this one time, we would have reason to be 
concerned. A free press is vital to our democratic system, and 
the Constitution grants extraordinary protections to the 
official communications of Members of Congress and their staff.
    Of course, these reports do not constitute an isolated 
incident. The Department of Justice has a long history of 
targeting reporters and misusing its surveillance authorities 
to bypass basic constitutional protections. President Nixon's 
Justice Department tried to silence the publication of the 
Pentagon Papers. President Bush's Justice Department went after 
the reporters who helped expose the NSA's expansive warrantless 
surveillance programs. President Obama's Justice Department 
went so far as to charge a reporter as a co-conspirator in 
violation of the Espionage Act. President Trump's Justice 
Department appears to have targeted reporters and Members who 
were focused on investigating Russia's interference in the 2016 
election. Now, we know that President Biden's Justice 
Department sought to renew at least some of the secrecy orders 
associated with these cases.
    In each of these cases, the Department took advantage of 
outdated policies that make secrecy the norm, not the exception 
to the rule. In fact, these recent cases appear to have 
targeted journalists, Democratic Members of the House--of 
Congress, and the former White House counsel. We have no 
immediate way of knowing how big the problem is because each of 
these cases was accompanied by a DOJ-requested, judge-imposed 
gag order that prevents anybody from talking about them for 
years.
    Now, we have asked the Department to explain the extent of 
these troubling cases. This hearing is not about that 
investigation, at least not directly.
    Today, the Committee is going to focus on a related policy 
problem that has troubled Members on both sides of the aisle--
namely, that technology has vastly outpaced the law when it 
comes to the government demanding your data from a third-party 
provider and that the gag orders accompanying those demands 
have become standard practice in cases where timely notice 
would make far more sense.
    In the 21st century, Federal prosecutors no longer need to 
show up to your office; they just need to raid your virtual 
office. They do not have to subpoena journalists directly; they 
just need to go to the cloud. Rather than providing Americans 
with meaningful notice that their private electronic records 
are being accessed in a criminal investigation, the Department 
hides behind its ability to ask third-party providers directly.
    They deny American citizens, companies, and institutions 
their basic day in court, and, instead, they gather their 
evidence entirely in secret. Just because it is easier for 
prosecutors to seek sweeping amounts of data from these service 
providers does not mean that they should be allowed to do so.
    This Committee has long recognized the Justice Department's 
need to investigate the unauthorized disclosure of classified 
information, and it supports those investigations whenever they 
are properly predicated. Our responsibility to combat leaks is 
not, however, carte blanche authority to engage in sweeping 
surveillance of American citizens, businesses, newsrooms, and 
universities. It was not tolerable after 9/11, but it is not 
acceptable now.
    If history and recent reporting has taught us anything, it 
is that we cannot trust the Department to police itself. It is 
imperative that the Committee fulfill its role and ensure our 
laws are keeping pace with rapidly changing technology. We need 
to guard against future overreach of Federal prosecutors by 
implementing reform now.
    I thank our Witnesses for being here today. I look forward 
to hearing their ideas on what reforms we should consider 
moving forward, and I look forward to working with Mr. Jordan 
and our Republican colleagues on this matter.
    I now recognize the Ranking Member of the Judiciary 
Committee, the gentleman from Ohio, Mr. Jordan, for his opening 
statement.
    Mr. Jordan. Thank you, Mr. Chair.
    Mr. Chair, in the United States of America, the government 
should not spy on its citizens, plain and simple. In the 
limited cases when surveillance on Americans is necessary to 
prosecute crimes or prevent acts of terror, there should be a 
high burden, a very high burden, for the government in getting 
approval to do so.
    What came out of the Church Committee's investigation into 
the FBI'S rogue actions in the middle of the 20th century 
provided a roadmap for righting the wrongs of domestic 
surveillance. An entire apparatus of checks and balances was 
set up to hold government accountable when it sought to invade 
the privacy of its citizens.
    This process again is now in need of reform. The laws and 
guidelines governing surveillance are opaque, antiquated, and 
easily skirted. Our system of warrants, subpoenas, national 
security letters, secret courts, and other tools at the 
government's disposal must be brought in line with 
constitutional considerations of basic due process. We have 
tried to make progress in recent years, but we have much work 
left to do.
    For instance, the USA FREEDOM Act made significant 
improvements to the PATRIOT Act to safeguard civil liberties, 
but many deficiencies remain, like the simple fact that the 
Obama FBI spied on President Trump's campaign, used a dossier 
that they knew to be false at the time to be able to surveil 
the activities of Carter Page. Further improvements are--quite 
frankly, a complete overhaul of FISA is something this 
Committee should again take up.
    More recently, Tucker Carlson stated on his show the other 
night his belief that the NSA was monitoring his 
communications. While the NSA said in a carefully worded 
statement--and I would encourage all of you to read that Mr. 
Carlson was not a target, they didn't deny that they had 
reviewed his communications.
    Additionally, reforms to the Electronic Communications 
Privacy Act, or ECPA, passed the House in two recent 
Congresses, only to stall in the United States Senate. As most 
of our colleagues know, ECPA is the cornerstone law governing 
Americans' privacy with respect to email and other electronic 
data. The problem is that this law was written in 1986 and did 
not contemplate, not even close to contemplate, all the facets 
of our digital age today. The result has been a patchwork 
system of demands from law enforcement to technology companies 
in a constitutionally dubious fashion. Courts are split, for 
instance, on how to interpret parts of ECPA, and this 
uncertainty allows for data to be swept up by law enforcement 
agencies without warrants.
    Another area where we can work together is on protecting 
the public's right to know. An informed public is critical to a 
well-functioning democracy. When the Department of Justice 
prosecutes journalists or implements a gag order so that people 
cannot speak out about the government's actions, our democratic 
values are undermined. There are bipartisan bills that will 
protect journalist sources. This legislation was originally 
authored by Vice-President Pence when he was a Member of the 
House. We should revisit this legislation and measures related 
to gag orders so that the public can be as informed as 
possible. It should be incredibly rare in the United States 
that people are not allowed to speak freely about the 
government's actions.
    I look forward to today's discussion, and, frankly, like 
the Chair said, ``I'm optimistic about an opportunity to work 
with our colleagues on the other side to make some improvement 
in all these areas.''
    With that, Mr. Chair, I yield back.
    Chair Nadler. Thank you, Mr. Jordan.
    Without objection, all other opening statements will be 
included in the record.
    Chair Nadler. I will now introduce today's Witnesses.
    Eve Burton is an Executive Vice President and the Chief 
Legal Officer of the Hearst Corporation. Prior to joining 
Hearst, Ms. Burton served as Vice President and Chief Legal 
Counsel at CNN, where she oversaw all legal matters relating to 
news and other programming on CNN networks and websites. 
Previously, she was a Deputy General Counsel at the New York 
Daily News. She also clerked for Judge Leonard Sand in the 
United States District Court of New York. Ms. Burton holds a 
B.A. from Hampshire College and a J.D. from Columbia Law 
School.
    Tom Burt is corporate Vice President for customer security 
and trust at Microsoft Corporation. Among his department's many 
responsibilities is responding to law enforcement requests for 
access to data and managing Microsoft's government clearance 
and national security compliance. Mr. Burt joined Microsoft in 
1995 and has held several leadership roles in the corporate, 
external, and legal affairs departments. He received an A.B. 
from Stanford University and a J.D. from the University of 
Washington School of Law.
    Jonathan Turley is the J.B. and Maurice C. Shapiro 
Professor of Public Interest Law at The George Washington 
University Law School. After a previous position teaching at 
Tulane Law School, Professor Turley joined the G.W. law faculty 
in 1990, and in 1998 he became the youngest chaired professor 
in the school's history. In addition to serving as counsel on a 
number of significant cases, he has written numerous articles 
for a variety of law journals and national publications. 
Professor Turley earned a B.A. from the University of Chicago 
and a J.D. from Northwestern University School of Law.
    Lynn Oberlander is of counsel with the law firm of Ballard 
Spahr LLP. Previously, she served as In-House Counsel to 
numerous broadcasters, publishers, and digital platforms. She 
was a Senior Vice President and Associate General Counsel for 
media at Univision Communications, Inc., while also serving as 
Executive Vice President and General Counsel at Univision's 
subsidiary Gizmodo Media Group. Previously, she was the General 
Counsel for media operations at First Look Media Works, and 
before that she was the General Counsel of The New Yorker, 
where she also wrote for newyorker.com on media law topics. 
Earlier in her career, she also worked at Forbes and NBC. Ms. 
Oberlander received her B.A. from Yale University and her J.D. 
from Columbia Law School.
    We welcome all our distinguished Witnesses, and we thank 
them for participating today.
    I'll begin by swearing in our Witnesses. I ask that our 
Witnesses in person please rise and raise your right hand. I 
ask that our remote Witness please turn on her audio and make 
sure I can see your face and your raised right hand while I 
administer the oath.
    Do you swear or affirm under penalty of perjury that the 
testimony you are about to give is true and correct to the best 
of your knowledge, information, and belief, so help you God?
    Let the record show that the Witnesses have answered in the 
affirmative.
    Thank you, and please be seated.
    Please note that each of your written statements will be 
entered into the record in its entirety. Accordingly, I ask 
that you summarize your testimony in five minutes. To help you 
stay within that time limit, there is a timing light on your 
table. When the light switches from green to yellow, you have 
one minute to conclude your testimony. When the light turns 
red, it signals your five minutes have expired. For our Witness 
appearing virtually, there is a timer on your screen to help 
you keep track of time.
    Ms. Burton, you may begin.

                    TESTIMONY OF EVE BURTON

    Ms. Burton. Chair Nadler, Ranking Member Jordan, Members of 
the Committee, good morning. My name is Eve Burton. I am an 
executive vice President and the chief legal officer of the 
Hearst Corporation. I am pleased to appear before you today to 
discuss this critical issue.
    This is not a partisan, political matter. It is not a 
concern limited to the press or the Congress. It is an American 
issue, and how we approach it will tell a lot about what kind 
of country we want to be.
    I want to acknowledge the obvious. There is a natural 
tension between prosecutors' interest in exercising their 
investigative power and the individual's interest in protecting 
their constitutional rights, and these are difficult interests 
to balance.
    That is the key: They must be balanced fairly and 
consistently. Our constitutional system requires that due 
process is accorded all citizens through the application of 
proper procedures that protect fundamental rights. With rare 
exceptions, these matters should not be decided in secret.
    Recent revelations about the DOJ's use of its investigative 
powers to secretly obtain citizens' communications records 
directly from telephone and email providers should be of great 
concern to every American. We all rely on these services in our 
daily lives.
    While we do not yet know all the details of how or why the 
DOJ went about this secret collection, enough facts have 
emerged to suggest that Congress should consider legislation to 
ensure appropriate balancing and adequate protection of 
individual rights in the future.
    Congress has stepped in before to provide legislative 
protections for important rights as it did with the 1980 
Privacy Protection Act. The PPA established strong procedures 
for news organizations to challenge search warrants of 
newsrooms, which were until then planned and executed in 
secret.
    Congress should do more, especially where third-party 
communication companies are concerned. That is the principal 
unad-dressed problem in 2021.
    The aim of my testimony is to share my views on what should 
be central components of any legislative reform in this area. 
My written submission provides an expanded discussion of these 
necessary pieces, but I will summarize them here.
    The single most important step and one that is steeped in 
our shared American values is to recognize the importance of 
due process and procedural safeguards. This could be done by 
codifying something like the DOJ subpoena guidelines. They lay 
out procedures to protect fundamental press rights from 
investigative power. This is a good baseline for legislation to 
address today's problems. The guidelines are just a starting 
point, and we must go forward.
    Further, to that end, a critical second step is to 
recognize the necessary role of Article III Judges in balancing 
competing interests. The DOJ should not be prosecutor, judge, 
and jury when it comes to citizens' fundamental rights. The 
Department simply has an inherent conflict.
    A third step is the establishment of procedures that 
specifically recognize the realities of modern communication 
technology. The same protections must apply whether the 
information is sought in an Office file or on a cloud server 
across the country or the world managed by Google, Microsoft, 
Apple, or Verizon.
    These are not theoretical issues; they are practical 
issues. We must extend procedural protections to records stored 
with cloud companies, or else we may never know when our 
records are seized by the government.
    Presently, the protection of our constitutional interests 
is in the hands of middlemen who have no incentive to battle 
with the government on behalf of customers or citizens. To the 
contrary, in my experience, some communication companies have 
historically seen it as their responsibility to assist the 
government in obtaining what it wants.
    Finally, legislation should be clear there is a presumption 
against secrecy orders, and the government must bear the burden 
of overcoming that presumption. The Pentagon Papers case, 
decided exactly 50 years ago today, reminds us that prior 
restraints are rarely, if ever, constitutionally permissible, 
even when the government invokes national security concerns 
during wartime. This is the constitutional presumption against 
which gag orders must be judged.
    I would like to close my testimony by reiterating my belief 
that much of our concern about prosecutorial abuse of 
investigative power can be addressed in a way that should not 
be controversial or interfere with legitimate government work.
    Instead, I believe we can all agree that many of these 
concerns can be addressed with clear procedures that establish 
a presumption of openness, with notice and an opportunity to be 
heard, as the norm and the expectation. This assures that 
difficult questions about the balancing of constitutional 
interests that must occur will be properly decided by our great 
and independent judiciary.
    I look forward to our discussion today and thank you all 
for the opportunity to participate in this hearing.
    [The statement of Ms. Burton follows:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
    
    Chair Nadler. Thank you for your testimony.
    Mr. Burt, you may begin.

                     TESTIMONY OF TOM BURT

    Mr. Burt. Chair Nadler, Ranking Member Jordan, and Members 
of the Committee, my team at Microsoft is responsible for 
responding to government data demands, so I appreciate the 
opportunity to testify on the need for legislative reform on 
secrecy orders.
    While the recent news about secret investigations is 
shocking, most shocking is just how routine secrecy orders have 
become when law enforcement targets an American's email, text 
messages, or other sensitive data stored in the cloud. This 
abuse is not new. It is also not unique to one Administration 
and is not limited to investigations targeting the media and 
Congress.
    Secrecy orders are too often used for routine 
investigations based on a cursory assertion that the government 
has met a statutory burden. The Justice Department's own 
template does not even require facts justifying the need for 
secrecy. Instead, the template merely asserts that any 
disclosure would seriously jeopardize the investigation for a 
variety of boilerplate reasons.
    It's no surprise, then, that throughout the Obama, Trump, 
and Biden Administrations, up to a third of all legal demands 
we receive from Federal law enforcement include secrecy orders, 
up to 3,500 in just one year. These are just the demands on 
Microsoft. Add the demands likely served on Facebook, Apple, 
Google, Twitter, and others, and you get a frightening sense of 
the mountain of secrecy orders used by Federal law enforcement 
in recent years.
    As has been pointed out, this is very different than 
investigations conducted before the advent of cloud computing. 
If law enforcement wanted to get access to data on a computer 
or a network in your home or your office, they would have to 
obtain and serve a warrant to enter your premise and collect 
evidence. If law enforcement wanted to secretly search your 
physical office, it had to meet the heightened standards 
required to get a so-called ``sneak and peek'' warrant. 
However, today, if law enforcement wants to secretly search 
your virtual office in the cloud, they just serve a boilerplate 
warrant and secrecy order on your cloud provider that prevents 
notice to you.
    Microsoft scrutinizes each legal demand we receive to 
protect our customers' interests. We often challenge 
unnecessary secrecy orders through negotiation or litigation in 
court. Some examples, just examples, of some of the recent 
abuse we've seen are: Secrecy orders when the account holder 
was a victim, not a target, of the investigation; or when the 
investigation targets just one account at a reputable company, 
government, or university but the secrecy order bars notice to 
anyone in that organization; or where the government has 
secretly demanded records to evade an ongoing discovery 
dispute.
    While Microsoft has long successfully challenged these 
secrecy orders in courts, litigation is no substitute for 
legislative reform. We worked with other technology companies 
and have reforms that we have proposed that permit secrecy 
orders for those rare cases where they are truly necessary.
    We have four primary recommendations. First, Congress 
should end indefinite secrecy orders for good. We suggest that 
they last for 90 days, with a 90-day extension if proven 
necessary. Second, Congress must end rubber-stamp secrecy 
orders and require that judges engage in a written analysis of 
the relevant facts. Third, courts should apply strict scrutiny 
when issuing an order instead of only after it has been 
challenged. Finally, Congress should codify a statutory right 
authorizing cloud providers to challenge harmful secrecy orders 
to protect their users' rights.
    Let me be clear, secrecy orders are sometimes necessary, 
such as to investigate cyber-attacks, to keep our children safe 
from online exploitation, or to prevent terrorist attacks. We 
don't suggest that the government must meet an impossible 
standard. We are asking for a meaningful one.
    Notice to targets is an important safeguard for our 
constitutional rights. Reform is necessary to protect the 
fundamental values that are the bedrock of our democracy. 
Without reform, abuses will continue to occur, and they will 
occur in the dark.
    Thank you for your time and attention.
    [The statement of Mr. Burt follows:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
    
    Chair Nadler. Thank you for your testimony.
    Professor Turley, you may begin.

                  TESTIMONY OF JONATHAN TURLEY

    Mr. Turley. Thank you, Mr. Chair, Ranking Member Jordan, 
Members of the Judiciary Committee. Thank you for inviting me 
to speak today.
    The reported targeting of reporters and Members of Congress 
in the recent leak investigation is a serious matter that cuts 
across areas of constitutional and statutory law. It should 
also cut across partisan lines to unify the public and the 
Congress in seeking answers to these difficult and troubling 
questions.
    Today's hearing occurs on the 50th anniversary of The New 
York Times' publication the Pentagon Papers, an act that 
triggered one of the most consequential legal battles in the 
history of this country, a battle that ultimately helped define 
the rights of the free press.
    It also reminds us that drawing the line between national 
security and press freedom continues to evade clear 
demarcation. Indeed, it was 15 years ago that I testified 
before the House Intelligence Committee and called again for 
the enactment of a Federal shield law. It's a reminder of how 
this area remains dangerously ill-defined and uncertain for 
reporters, particularly with the growth of new technology that 
has made a mockery of many of our protections.
    This is a difficult area because there's compelling 
arguments on both sides, by the Department of Justice and by 
the media, and courts have struggled with what is often 
presented as a zero-sum game. You can see that in the cases 
that I discuss in my testimony.
    So, this is a very serious matter. We don't know all the 
facts, but it cuts across and raises issues of separation of 
powers, the free press, and privacy. I would like to, however, 
focus on where I ended 15 years ago, and that is on the 
necessity of a Federal shield law. I will note that my 
testimony identifies six areas that I believe should be 
explored in light of this controversy.
    Frankly, for those of us who have advocated for the free 
press and for free speech, this is what Yogi Berra meant when 
it was all ``deja vu all over again.'' We have seen this in the 
Bush Administration, we've seen it in the Obama Administration, 
we've seen it in the Trump Administration, we saw it at the 
beginning of the Biden Administration. It's foolish to believe 
that anything is going to change. In fact, that, I believe, is 
the definition of ``insanity''--of doing the same thing, 
expecting a different result.
    The fact is, we rely uncomfortably on self-regulation by 
the Department of Justice. They have not met that burden. They 
have failed over and over again.
    It is not partisan. It cuts across parties and 
Administrations. It is a record of failure that puts at risk 
one of the most precious rights, one of the most essential 
rights in our constitutional system, and that is the free 
press.
    The six areas I laid out include concerns over the 
authorization in this matter, what I call ``reverse 
engineering'' of leak investigations, gag orders, fishing in 
the cloud, which is a major problem, national security letters, 
and defining ``journalism.''
    I really would like this Committee to begin and end--and 
this will come as no surprise to the Chair and the Ranking 
Member, that I invoke James Madison. As a Madisonian scholar, I 
think most things begin and end with James Madison. Madison 
said most famously, ``A popular government without popular 
information or the means of acquiring it is but a prologue to a 
farce or a tragedy or perhaps both. Knowledge will forever 
govern ignorance, and people who mean to be their own governors 
must arm themselves with the power that knowledge gives.'' It's 
the free press that gives us that knowledge. It's the free 
press that protects us most certainly from tyranny.
    I won't address the case law that I have discussed, but I 
will note this: The State legislatures have been for more 
protective of the free press than this body. There are 16 
States and the District of Columbia that have absolute 
privileges for the media. There are 24 States that have 
qualified privileges for the media. Other States that don't 
have those shield laws actually have common-law protections for 
the media.
    The Free Flow of Information Act of 2017 is a great 
platform. It is supported by both parties, and it is time that 
we move that to enactment. I am critical of aspects of the law, 
even though I would take that law right now in a heartbeat to 
try to gain that protection for the media. I note that it could 
be strengthened with a greater explanation of presumptions. 
Also, I believe it has to be rewritten on the definition of 
what constitutes a journalist. Journalism has changed in this 
world, and the definition in the law is frozen in journalistic 
amber that is ages out of date. So, I would suggest examining 
that.
    I will only end with this, as I did 15 years ago: We cannot 
afford the consequences of leaving the media exposed the way we 
have. That will leave not just them exposed but the public in 
the dark. It will be, as Madison said, ``a prologue to a farce 
or a tragedy or both.'' We can avoid both, and we need to pass 
this law.
    Thank you.
    [The statement of Mr. Turley follows:]
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    Chair Nadler. Thank you for your testimony.
    Ms. Oberlander, you may begin.

                  TESTIMONY OF LYNN OBERLANDER

    Ms. Oberlander. Chair Nadler, Ranking Member Jordan, and 
Members of the Committee, thank you inviting me to testify 
today.
    We have learned in the last few weeks that the Justice 
Department has secretly sought the email and telephone records 
of eight journalists who work for three media companies in what 
appears to be a purposeful attempt to evade the protections of 
the law and of the Department's own guidelines.
    As a longtime media lawyer who has worked in many newsrooms 
and with hundreds of journalists, I can report that these 
actions have had and will continue to have a profound and 
disruptive effect on the ability of journalists to practice 
their craft and to report stories of vital public importance to 
our democracy.
    By sending secret subpoenas to the service providers for 
The New York Times, The Washington Post, and CNN and then by 
gagging the recipients, the Department of Justice performed an 
end run around the protections for the news media provided in 
both the Privacy Protection Act of 1980 and the Attorney 
General's own news media guidelines.
    Had the subpoenas come directly to the media organizations 
or if they had been notified at the time of their issuance, the 
media organizations would have been able to challenge them in 
court. Instead--and even though the prosecutors were seeking 
three-year-old records for an already-public leak 
investigation--the Department of Justice was able to convince a 
magistrate judge in at least one of the cases that informing 
the journalists of the request would, quote, ``seriously 
jeopardize the ongoing investigation by giving targets the 
opportunity to destroy or tamper with evidence.''
    Congress should now act to more fully protect the rights of 
journalists to bring crucial information to the public. The 
honorable Members of the Judiciary Committee should consider 
several legislative enhancements.
    The strongest and simplest way to protect the rights of 
journalists to report on the actions of government and the 
rights of the public to receive such reporting would be to pass 
legislation banning governmental inquiries into journalist 
sources, as Attorney General Garland has now said that he would 
strive to do. This would be the simplest response and would 
demonstrate the importance of the free flow of information to 
the public.
    Even in the absence of such a ban, there are other ways to 
improve protections for journalistic process. Independent 
judicial review of any prosecutorial attempt to access 
journalist materials is crucial. Ensuring that it's a stringent 
review that appropriately weighs the public's interest in news 
gathering with the government's interest in uncovering a source 
is central to protecting the important First Amendment 
interests that are at stake here.
    While the current Attorney General guidelines are not 
perfect and, crucially, are not enforceable by journalists, 
they provide an excellent starting point in looking to 
strengthen the legislative protections. The guidelines 
recognize that, quote, ''freedom of the press can be no broader 
than the freedom of members of the news media to investigate 
and report the news,'' and note that subpoenas and search 
warrants are ``extraordinary measures, not standard 
investigatory practices.'' To this end, all such process may be 
issued only with the approval of the Attorney General or 
another senior official and only when the information sought is 
essential to a successful investigation, after all reasonable 
attempts have been made to obtain the information from 
alternative sources, and after negotiation and notice with the 
affected members of the news media. These protections should 
now be statutorily enacted.
    The government must provide notice to the news media 
whenever information is sought, whether it's directly sought 
from the media itself or from their service providers. It is an 
accident of technology that the government is able to bypass 
the affected journalists. If the media company maintained its 
own email servers, for example, it would be impossible to seek 
the records without notice.
    Notice provides an opportunity for the affected media to 
seek judicial review from an Article III Judge and to challenge 
the government's purported rationales for seeking the 
information.
    The Department of Justice believes that prior notice and 
negotiation is impossible in certain cases, particularly where 
it threatens grave harm to national security or the 
investigation's integrity. In such extremely limited cases, 
Congress should consider legislating a duty of candor, an 
affirmative obligation to notify the third-party providers that 
it is seeking journalist materials, and not to hide the request 
within a broader request, as was apparently the case with a 
subpoena to Apple for information about Members of Congress and 
their staffs.
    Congress should also consider requiring a confidential 
advocate to represent the media's interests before the court 
considering the application for the subpoena, the court order, 
or other process. This would not be unique. The USA FREEDOM Act 
permits a similar type of special advocate in proceedings 
before the FISA court.
    Finally, this moment presents an excellent opportunity to 
pass a strong statutory shield law that would codify protection 
for journalists and mandate a consistent test for when, if 
ever, the government or private individuals can seek journalist 
work product and the identity of confidential sources.
    Today's patchwork of shield laws and conflicting standards 
of protection between the State and Federal courts leads to 
inconsistent results and prevents journalists from adequately 
informing their sources of the risks they face in coming 
forward with crucial information for stories of public 
importance.
    Truly a fourth estate to our tripartite government, the 
press, protected by the First Amendment, stands as an essential 
bulwark of our constitutional arrangement. Congress can help 
the press serve its vital role in our democracy. I urge you to 
do so.
    Thank you.
    [The statement of Ms. Oberlander follows:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
    
    Chair Nadler. Thank you.
    We will now proceed under the five-minute rule with 
questions, and I will recognize myself for five minutes.
    Before I begin my questioning, and without objection, I 
will place the following into the record: A letter from over 20 
civil society groups calling for reform; a statement from 
Frederick J. Ryan, Jr., CEO, and publisher of The Washington 
Post; a statement from Karen Kaiser, Senior Vice President, 
General Counsel, and Corporate Secretary of the Associated 
Press.
    Without objection.
    [The information follows:]

                      CHAIR NADLER FOR THE RECORD

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    Chair Nadler. The technological landscape has changed 
dramatically since Congress enacted the Stored Communications 
Act in 1986.
    Mr. Burt, how has the government become more and more 
reliant on section 2703 electronic surveillance orders since 
the passage of the Stored Communications Act of 1986?
    Mr. Burt. Government has become increasingly reliant on 
these secrecy orders since that time, and that has been largely 
the product of the advancement of technology.
    At that time, the cloud didn't exist. The substantial 
extent to which citizens, organizations, corporations, and 
society in general stores their private communications, their 
corporate records in the cloud, that didn't exist.
    So, today, what we have is a world where access to that 
information and the application of a secrecy order enables law 
enforcement to conduct these investigations and get access to 
citizens', organizations', and corporation records without 
notice to the organization or the individual whose records are 
being obtained. That is a dramatic shift in the way law 
enforcement can and should conduct its operations.
    Chair Nadler. Ms. Burton, what are some examples of cases 
in which you think the government would not need to rely on 
section 2703 orders but it, in fact, does?
    Ms. Burton. I would point the Committee to the BALCO case, 
which was a series of stories by the San Francisco Chronicle on 
sports and steroids, where the government had a two-party 
process to get information. They were going through the courts, 
and they didn't like the results they were getting, so they 
turned around and they went back to the service providers, and 
they sought the telephone records of the reporters in court 
without any notice to us. That order is still sealed. We have 
no knowledge whatsoever what the telephone provider argued in 
the courtroom.
    A perfect example of a relatively routine case. The 
government was embarrassed about what happened in the grand 
jury and what came out of the grand jury. It just wasn't 
necessary. The usual constitutional protections and the courts 
balancing those and with notice to these reporters was a 
perfectly fine way to proceed. Whether they won or lost the 
case, it was fair under a constitutional scheme.
    So, there is an example where it was just easier for the 
government to get what it wanted, and it got it, and it acted 
in accordance with process that's just not defensible in this 
country under our aversion to secrecy, as Representative Jordan 
spoke about when he started with you in this proceeding.
    Chair Nadler. Mr. Burt, same question.
    Mr. Burt. In addition to the examples that I described in 
my testimony, let me just offer a very recent example.
    We received just yesterday a demand for access to data of a 
single employee of a major American city in an investigation 
that has nothing to do with national security. The gag order, 
therefore, prevents us from notifying anybody in the city--not 
its mayor, not its city attorney--that an employee of theirs 
has had their information taken by the government.
    More importantly, we also saw with this particular gag 
order a new trend, or an example of a new trend, a troubling 
trend that we're observing, which was, this gag order wasn't 
just about that subpoena; it was a blanket gag order that 
purports to cover all subpoenas, all warrants, every process in 
that entire investigation, in that entire case, all based on 
one boilerplate submission to a magistrate.
    That's the kind of--our law enforcement agents work hard to 
do a very important job, but the laws that currently exist 
enables them to act this way out of expediency and convenience, 
and that's why we need reform.
    Chair Nadler. Thank you.
    If the recent reporting is true, gag orders prevented 
counsel within these targeted media companies from sharing any 
information about the requests for information with the 
affected reporters. These dynamic strains the attorney-client 
relationship, to say nothing of its effect on a free press.
    Ms. Oberlander, does the Department's use of secrecy orders 
violate due-process protections? Why do you believe the 
Department defaults to section 2703 and secrecy orders in this 
way?
    Ms. Oberlander. Well, I absolutely believe that it does 
violate due process. It creates incredible stress for the media 
organizations and for the lawyers at issue here, the in-house 
counsel who were aware of the requests but who weren't allowed 
to tell their bosses, their supervisors, or the journalists or 
even the newsroom that these requests had been made. It puts 
them in an incredibly difficult position, as I'm sure, as many 
of you are members of the bar, you can imagine, when you cannot 
tell your client crucial information about what is being asked 
of them and going on.
    The other big problem is that, when you have these secret 
orders, you can't negotiate them. I mean, if the order had come 
through and the people were allowed to know about it, then they 
could go back and say, you don't really--even if you want this 
information, which we don't think you should have, you don't 
want this other information. We want to make sure that you're 
not getting other communications that may show our other 
sources, our other work product, our other confidential 
investigations.
    So, it really makes it very, very difficult for in-house 
counsel and outside counsel to work effectively with the 
government and to protect their First Amendment rights.
    Chair Nadler. Thank you.
    My time has expired.
    Mr. Jordan?
    Mr. Gaetz?
    Mr. Gaetz. We're on a roll, Mr. Chair. Last week, you 
brought Big Tech to heel; this week, bringing the Department of 
Justice to heel. My heart flutters to think what might be in 
our next Committee week. Maybe we'll reform FISA and continue 
the bipartisan momentum.
    I believe that the Department of Justice and the 
intelligence community shouldn't threaten or spy on Members of 
Congress, our staff, or the press for politics. President Biden 
believes the same thing. In response to questions from CNN's 
Kaitlan Collins, President Biden committed that he would not 
allow the weaponization of his government against the press.
    Chair Nadler agrees. As a matter of fact, Chair Nadler 
stated, and I'm quoting directly, ``Congress must make it 
extraordinarily difficult, if not impossible, for the 
Department to spy on the Congress or the news media. We cannot 
rely on the Department alone to make these changes.''
    When I saw the reports about Members of Congress's offices 
being targeted--Mr. Swalwell, Mr. Schiff--I was the first and 
the only Republican to say that was improper. More of my 
colleagues should join me.
    It was easy to believe that the Department of Justice would 
do that to the Democrats because they threatened to do it to 
us.
    Mr. Chair, I seek unanimous consent to enter into the 
record a FOX News publication from September 27th, 2018: 
``Rosenstein Launched `Hostile' Attack in May Against 
Republicans Over Russia Records.''
    Chair Nadler. Without objection.
    [The information follows:]

                        MR. GAETZ FOR THE RECORD

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    Mr. Gaetz. Rosenstein threatened Kash Patel, who was a 
Member of Republican staff, with criminal process if he did not 
bend to what Mr. Rosenstein wanted at the time. So, it's not 
hard to believe.
    The most-watched cable news host has been stating for the 
last several nights that the NSA has been monitoring his 
communications. Amazingly, the NSA has issued a statement that 
is so couched it is functionally an admission.
    Let's review. The NSA says--on June 28th, 2021, Tucker 
Carlson alleged that the National Security Agency has been, 
quote, ``monitoring our electronic communications and is 
planning to leak them in an attempt to take this show off the 
air,'' close quote. This allegation is untrue. Which 
allegation? The statement continues, ``Tucker Carlson has never 
been an intelligence target of the Agency, and the NSA has 
never had any plans to try to take his program off the air,'' 
and the statement continues. What's interesting is that there 
is no denial that they were monitoring Tucker Carlson even if 
he wasn't the target.
    We saw this exact playbook with Carter Page and Donald 
Trump, where, to try to assess information from one person, the 
intelligence community will utilize authorities to go after 
someone else to try to ensnare their true target. I think 
that's why they were going after Democrat staff, to try to get 
to Schiff and Swalwell. I think it's the reason they were going 
after Republican staff, perhaps to target Mr. Nunes or others. 
I think it's why they were going after Carter Page, to get to 
Trump.
    I think that there was probably somebody in Tucker 
Carlson's orbit that NSA was monitoring, and there's no denial 
that they caught up Tucker Carlson in that monitoring. By the 
way, there's also no denial that there was a plan to leak the 
information to try to in some way embarrass Tucker Carlson. The 
only denial is that they weren't expressly trying to get his 
show off the air.
    It's not like the NSA has never lied to us. I mean, we were 
told that there was no bulk collection of Americans' data. 
Turns out, there was bulk collection of Americans' data. No one 
ever was held to account for that.
    The Chair's right or Professor Turley's right, too, we 
cannot count on these people to police themselves. So, it's my 
expectation that there needs to be greater review here.
    So, Mr. Chair, I am inviting you to continue this 
bipartisanship. Join me in calling for an inspector general 
investigation into any monitoring that the NSA or any other 
element of the intelligence community has engaged in relative 
to Tucker Carlson. Because these denials, these couched 
denials, raise more questions than they provide answers.
    By the way, if Democrats don't do this, if you're only 
outraged when your Members and your staff and the press that's 
close to you and that amplifies your messages is targeted, then 
we never are going to solve anything. It will, in fact, be deja 
vu all over again, as Professor Turley said. I am equally 
outraged when they target the people I like and the people I 
don't like, when they target the press that I watch and the 
press that I despise.
    I would greatly seek any bipartisan agreement. Last week, 
we were on such a roll; we brought Big Tech to account. My hope 
is that we can join together again and address this 
legislatively but specifically with a call for an inspector 
general investigation into these allegations.
    I yield back.
    Chair Nadler. The gentleman yields back.
    Ms. Lofgren?
    Ms. Lofgren. Thank you, Mr. Chair.
    As I listen to these very skilled and knowledgeable 
Witnesses, it occurs to me we're being asked to provide 
additional protection to the press because of the First 
Amendment, but it seems to me our real focus--not that the 
press doesn't need additional protection under shield laws--
ought to be on the Fourth Amendment.
    Once again, we are called to ask whether the Fourth 
Amendment is really still alive in the digital age. The warrant 
requirements and the guarantees against unreasonable search and 
seizures really are--they're foundational rights. They're not 
just to the press, and they're not just to Members of Congress; 
they're to every American. I do believe that the situation we 
have here is an end run on the protections that the Fourth 
Amendment is supposed to provide to every American.
    It's true that if the information sought was on a person's 
desktop, a warrant would have to be issued. There wouldn't be a 
gag order; there would be notice. The fact that the information 
is stored in the cloud instead is really meaningless. The 
expectation of privacy on the part of the individual is that 
it's their data.
    I think we really need to revisit the whole scheme that we 
have here about Americans' expectation of privacy. When these 
laws were written, there was no cloud. We ought to extend the 
Fourth Amendment protections to individuals' data, wherever 
held, when there is an expectation of privacy.
    Now, Mr. Burt, I'd like to ask you about compelling cloud 
providers, like Microsoft, to produce communication records. 
The Stored Communications Act allows the government to compel 
such data upon a showing of reasonable suspicion. Do you think 
that this standard is sufficient to protect the privacy rights 
of individuals who have their data stored in your cloud?
    Mr. Burt. No, that standard is clearly not sufficient. 
That's why we're recommending the heightened standard that we 
do recommend that the Committee consider in legislative reform.
    That standard has been turned into these boilerplate 
approaches that we discussed that enable law enforcement to 
just simply assert a conclusion that the secrecy order is 
necessary. Then, as you point out quite accurately, that denies 
the target of that investigation any opportunity to exercise 
their Fourth Amendment rights, because they don't know that 
their property is being taken and searched and seized.
    What we've done in our litigation is assert our First 
Amendment right to inform our customers. While some courts have 
recognized that we do have a First Amendment right to inform 
customers--and that's why we also believe part of the reform 
should clarify that that First Amendment right does exist for 
cloud providers, because there have been some courts that have 
found the opposite.
    We really need to ensure that citizens have the opportunity 
to exercise their Fourth Amendment rights. That requires a 
heightened standard. It requires the specific findings of fact 
that a secrecy order is truly necessary under the existing 
statutory factors and a record so that only in those very 
limited instances where it's truly necessary in the national 
interest is a secrecy order applied, and not 3,500 times a year 
just to one cloud provider.
    Ms. Lofgren. Right now, the entire burden of protecting 
Fourth Amendment rights falls upon the service provider. Now, I 
heard your testimony that Microsoft is active in protecting 
those rights, but there are other providers that may not be 
active. The fact is, it's the individual whose rights are being 
challenged who should have the opportunity to contend and to 
protect.
    I would like to think, what happens when a court issues a 
secrecy order that later turns out to be totally unsupported 
and yet the government uses the information it gets in the 
request to bring a criminal prosecution? Can the defendant use 
the secrecy order as a basis for suppression? Do you know that?
    Mr. Burt. I would yield to Witness Mr. Turley to see if 
he's got a specific analysis of that. I believe the answer is, 
there is no opportunity for the defendant then to challenge the 
evidence that's seized in that way under a secrecy order under 
the Fourth Amendment.
    Chair Nadler. The time of the gentlelady has expired.
    Mr. Biggs?
    Mr. Biggs. Thank you, Mr. Chair. Thanks to you for holding 
this very important hearing, and thanks to the Witnesses for 
being here today.
    I associate myself with basically everything that's been 
said here today. It's been remarkably agreeable, which is 
really pleasant and surprising. I hope that we can work 
together to try to bring clarity and rectification of these 
problems.
    So, here's my first question goes to Ms. Burton, this is 
for you. You said in your written report, because information's 
in the cloud storage bin rather than in a file cabinet--and, by 
the way, this was iterated by every Witness--the government 
should have no greater investigative and secrecy interest due 
to the case--due to the ease of access.
    So, I guess my question is, if you were the DOJ or 
government, how would you respond to that? Because, I mean, 
that's the blankest statement, is that there is no greater--
just because it's easier to claim secrecy, there's no greater 
case for it. How would you respond if you were DOJ to that?
    Ms. Burton. I mean, if I were the Attorney General--and I 
think he's headed in this direction--I would want to be 
responsible, as a citizen of the country, to balance all rights 
and all needs.
    That's why we have judges. That's why we have notice. 
That's why we should not be putting our cloud providers, 
effectively, above the Constitution. As you say, Microsoft 
makes some efforts in this regard, but that is it not 
universally the issue.
    I would tell you, there's a lot of things we don't know 
right now. If I'm the DOJ, I don't want to be convicting people 
or bringing cases where I can't defend in full measure the 
evidence that I put before a court and give someone the right 
to challenge that. I think that's just playing, should we say, 
pro ball in a bad way.
    Mr. Biggs. Well, I don't disagree, but I haven't heard, 
basically, from any of the Witnesses, nor have we seen in 
practice over years, that DOJ really is concerned with being a 
pristinely good, due-process adherence, and protecting the 
rights of everybody. I mean, you've all iterated examples where 
they've abused this authority.
    Mr. Burt, this is coming into your shop 3,500 times a year, 
and so we're led to believe that this could be many thousands 
of times.
    So, you've given your set of prescriptions as well, but why 
do you think it should be--on a physical warrant, with physical 
materials being seized, it's a 30-day--if it's going to be 
secret, it's 30 days per statute. Why do you think it should be 
90 days for data?
    Mr. Burt. That's a very good question. Any reasonable time 
is acceptable to us and to the technology industry. What we're 
trying to do is rein in what we have seen, which are indefinite 
secrecy orders that have no termination date.
    What we've seen since the DOJ formulated its policy in 
response to litigation, we filed back in 2017, we've actually 
seen somewhat of a decrease in those indefinite orders, but we 
still get hundreds of every year. The standard that we see, 
typically, is a year. That's just far too long a time period, 
even when it's actually justified to have a secrecy order.
    So, our response would be, there's a very small universe of 
truly justified secrecy orders. Where those secrecy orders are 
truly justified, then as long as 90 days might actually be 
acceptable.
    Mr. Biggs. I just have just about a minute left, and I 
would like each of you to respond to this. Because each of you 
have talked about, one way or another, reliance on the courts 
as arbiters here, and yet they seem to be just rubber-stamping 
boilerplate language.
    I am concerned about what I view as a necessary stick 
approach to DOJ for their abuse. What is an appropriate 
punitive measure?
    I mean, in a regular criminal case with physical evidence, 
you're going to have the exclusionary issues that will come in 
if there's fruit of the poisonous tree, et cetera. What happens 
here? What is the punitive measure that devolves to bad actors, 
DOJ?
    Professor Turley, we'll go with you and then right down the 
table.
    Mr. Turley. Well, I certainly agree with your point that 
the courts have not exactly covered themselves in glory. Part 
of the problem here is that these judges are getting thousands 
of these things, and they don't want to go into the weeds on 
some of these issues.
    So, you have cases like In re Grand Jury out of the ED New 
York that are saying, look, this is boilerplate, we are just 
getting boilerplate over and over again, and that's not saying 
anything.
    You're going to have to structure what a court has to find 
and what a court must establish in writing if we're going to be 
able do anything. I think you have to establish standing in an 
appellate procedure with adversarial process. Those are the 
things that will result in a change.
    Chair Nadler. The gentleman's time has expired.
    Ms. Jackson Lee.
    Ms. Jackson Lee. Mr. Chair, thank you so very much.
    I view this as enormously crucial in holding this 
bipartisan hearing, and it gives me reflections down memory 
lane of the Patriotic Act and the urgency after 9/11 to deal 
with both, as we fought for in the Judiciary Committee, the 
balance of civil liberties, as well as this major effort to be 
able to protect America.
    We've come full circle, I believe, and we are here to 
protect America again. We're doing it from a different 
perspective.
    Allow me just to lay a predicate, if I might, that under 
the Trump Administration's Justice Department they sought the 
phone and email records of journalists, Members of Congress, 
their families, and their staff. I think we should just dwell 
for a moment: Staff and families.
    Now, I imagine there's an array of family members and there 
might be a toddler. Some said there was a child whose various 
resources were sought as well.
    Donald Trump's determination to repeat the abuses of 
President Nixon was carried out in his contempt for the 
invaluable service to democracy performed by a free and 
independent press, his desire to punish politicians who opposed 
or criticized his policies and actions.
    As I pointed out during the impeachment proceedings against 
Donald Trump, his conduct reflects and reveals a person whose 
character is thus marked by every act which may define a tyrant 
and shows he is unfit to be the ruler of a free people.
    I say that for the record, not to suggest that what we're 
doing today should appeal or apply, appeal to all of us and 
apply to all of us regardless of our political perspective, as 
I heard Witnesses say.
    In fact, Ms. Oberlander, you indicated, if sunshine is the 
best disinfectant, it is obvious that this shadowy State of 
affairs allows for all manner of dark things to grow.
    We worked very hard in the PATRIOT Act to pull back, dealt 
with Pfizer. Even in our effort to do so we have had our ups 
and downs.
    So, let me ask all of you a question. It is just a yes or 
no to all the Witnesses. Then, with the time remaining, I'll 
ask a specific question. Let me start.
    Professor Turley, do you believe that Congress definitively 
needs to act in the midst of what we're dealing with at this 
time?
    Mr. Turley. Yes.
    Ms. Jackson Lee. Mr. Burt?
    Mr. Burt. Yes, I do.
    Ms. Jackson Lee. Ms. Oberlander?
    Ms. Oberlander. Yes, I do.
    Ms. Jackson Lee. I believe Ms. Burton?
    Ms. Burton. Yes, ma'am.
    Ms. Jackson Lee. Thank you.
    So, let me pose this question to Ms. Burton.
    How might the use of electronic surveillance gag orders 
used to further a President's personal crusade, what impact do 
you think that has as relates to the industry?
    Ms. Burton. I would say, Representative, that what you need 
to do in our answer to yes, and how it would affect not just 
the industry of the media, because I think what we have really 
determined here is that this affects all Americans.
    So, I would urge you to put forth legislation that would 
have a foundational matrix that could apply to the First 
Amendment, the Fourth Amendment, a narrow statute that covers 
broad constitutional considerations. That would be to give 
notice, due process standards, courts, judges, and no secrecy.
    I think that combination of things in a narrowly stated, 
not all the other issues that we've touched about on a lot of 
issues, but something very simple and clear that would 
effectively help our industry and the American public to no 
end.
    Ms. Jackson Lee. Thank you, Ms. Oberlander.
    Let me ask you the question from the reverse.
    What should be the limitations on our effort to protect the 
American public against these random securing of data now in 
the light of the cloud? Should there be from, your perspective, 
the First Amendment specialists, what limitation should we 
consider, if any?
    Ms. Oberlander. Congresswoman, I think that, frankly, the 
protection for the media should be broad and it should be 
subject to strict judicial review any time you're trying to 
get--government is trying to get this material to invade the 
privacy of the journalists, to invade the privacy of the 
reporting process.
    It may be that there are specific places where you could 
override that, perhaps on acts of terrorism, obviously, if 
there is a reason to believe that there's communications around 
terrorism or the identity of the terrorist. That might be one 
of the places where you would have a narrow exception. I do 
think it is--or imminent bodily harm, or violence, or immediate 
death.
    In general, I think the protection should be very, very 
broad and subject to independent judicial review. As the other 
Witnesses have said, there should also be the right of 
interlocutory appeal for that.
    Chair Nadler. The time of the gentlelady has expired.
    Ms. Jackson Lee. Thank you. I yield back.
    Chair Nadler. Mr. McClintock.
    Mr. McClintock. Thank you, Mr. Chair.
    I find myself in complete agreement with Ms. Lofgren. This 
is not a matter of special protections for journalists or 
public officials. This is a matter of the Fourth Amendment 
right of every American citizen.
    It was John Adams, who was certainly in a position to know, 
who said that in his opinion the American Revolution started 
many, many years before 1776 with the King's abuse of general 
warrants. That's when he said the ``Child Liberty'' was born. 
We wrote our Fourth Amendment to assure that such abuses could 
never threaten Americans.
    Professor Turley, I am not an attorney, but perhaps you 
could give me a little bit of schooling.
    It is my understanding that if the government wants to go 
through my papers to search for a document, an incriminating 
document, it first has to go to a judge, convince that judge 
there is probable cause to believe that I have committed a 
crime, and that the evidence for that crime is likely to be 
found among my papers.
    Do I have that correct?
    Mr. Turley. That is correct. They have to satisfy the 
standard of probable cause.
    Mr. McClintock. So, does it make a difference if that paper 
they are looking for is in my safe deposit box at my bank?
    Mr. Turley. No. That's the oddity about this situation, is 
that because of this new technology and storing on the cloud, 
suddenly a large amount of your information has become 
vulnerable to being seized.
    Mr. McClintock. Why would that make any difference? It 
could be seized sitting in my safe deposit box, but they can't 
just go and seize it. They have to first abide by the 
protections afforded me under the Fourth Amendment. Is that 
correct?
    Mr. Turley. It shouldn't. What they are getting thorough 
metadata and other types of searches is a great deal of 
information that people would believe is private.
    Mr. McClintock. My point is, whether I wrote those 
incriminating words on a piece of paper or wrote them 
digitally, it's the same thing exactly. Whether I store them at 
home or in a safe deposit box in the case of a paper or on 
somebody's server in the case of the cloud, it makes no 
difference, it is the same thing.
    Mr. Turley. That's right. What's particularly bizarre here 
is that the most famous case of the Supreme Court in the 
privacy area is Katz, where the court said that the Fourth 
Amendment protects people, not places. Yet we have the ultimate 
rejection of Katz because if you move information from one 
place to another it suddenly moves out of a warrant and 
probable cause protection.
    Mr. McClintock. How have we allowed ourselves to get so far 
from these fundamental Fourth Amendment principles that 
underpin our liberty?
    Mr. Turley. It's really two things. One is the court opened 
us up for this when it decided in cases like Smith v. Maryland 
that pen registers don't require warrants. A lot of that is 
based on a myth. The Court said, well, you give your phone 
number to a third party, i.e., the telephone company.
    Well, it used to be a human being there putting in your 
phone number. Now, of course, you are giving it to a computer. 
So, people are not giving their information to a third party 
knowingly. The Court has never corrected that misunderstanding, 
in my view, of the privacy dimension.
    The other aspect to this is just new technology. We have 
constantly seen privacy protections that have failed with new 
technology. This age we're living in is making a mockery out of 
the standards created by the court.
    Mr. McClintock. The technology may change, but human nature 
doesn't change and the principles that undergird our 
Constitution don't change because they are rooted in human 
nature.
    Mr. Turley. Mr. McClintock, I also want to note that 
there's a growing gap because the court just decided in 
Carpenter that you need a probable cause determination and a 
warrant to get the location off people's cell phone. All of us 
celebrated that as a victory of the Fourth Amendment. Yet, you 
don't need a warrant to get information from the cloud. From a 
privacy perspective, this is not just nonsensical, it's 
dangerous.
    Mr. McClintock. Yeah. Well, I just wonder, how are secret 
courts and secret subpoenas and secret letters compatible with 
a free society? Can a free society exist if its government can 
secretly surveil its citizens in this manner in direct 
contravention of its most fundamental law?
    Mr. Turley. Yeah. One of the great dangers, by the way, 
Katz had within it seeds of its own destruction, because it 
bases the test of privacy on our reasonable expectations of 
privacy. So, as our expectations fall, the government's ability 
to engage in warrantless surveillance increases, and that could 
become this race to the bottom.
    Mr. McClintock. They say this is necessary for our national 
security, for our country. The only oath that any public 
official takes is not to support and defend the country, not to 
support and defend the government, it is to support and defend 
the Constitution. There's a reason for that. Our Founders 
understood if we ever lose our Constitution, we've already lost 
our country.
    Chair Nadler. The time of the gentleman has expired.
    Mr. Cohen.
    Mr. Cohen. Thank you, sir. Thank you, Mr. Chair.
    Most of the questions I think have been asked that are 
pertinent but let me ask this? I'm not sure if this is to the 
right person, because we probably should have the Justice 
Department before us, as well to let us know what's been going 
on.
    Ms. Oberlander, do you know of any cases, or do you have 
reason to believe there are other cases that have not been 
reported where there has been surveillance that would concern 
the American public and this Committee?
    Ms. Oberlander. I don't actually have any direct knowledge 
of any cases that haven't been reported. I would imagine that 
there are. We have just learned about a significant number of 
attempts to find out the information of various journalists and 
various other Members of the Congress. I don't have any direct 
knowledge of that, though.
    Mr. Cohen. Ms. Oberlander, you're a representative of the, 
I guess, the Fourth Estate, the press, and they are protected 
by the First Amendment. We as Congress people are concerned 
about Article I.
    The public, as Mr. McClintock and Ms. Lofgren have 
discussed, they are the subject we most need to be concerned 
about.
    Do you have any--what are your suspicions on what type of 
cases and what people have been spied upon through this means?
    Ms. Oberlander. Outside of journalists?
    Mr. Cohen. Outside of journalists.
    Ms. Oberlander. Actually, honestly, really, I am a 
representative of the Fourth Estate here and I am unaware of 
whoever else may or may not have been spied upon outside of the 
media.
    Mr. Cohen. Well, thank you.
    Mr. Turley, I think you've discussed some of the exceptions 
that might be made if we had a law, and I don't know who it was 
addressed to, that we should have--they should all be warrants 
and they should be somehow adversary hearings and appealable to 
some higher-level court.
    Are there other suggestions that would you make to protect 
the public in these circumstances?
    Mr. Turley. My testimony actually does contain some initial 
suggestions.
    It's very important to address the standing issue. We've 
had cases in which people, particularly media, have tried to 
get this issue into court and they've just been told, ``You 
don't have standing,'' which is completely bizarre, because 
this goes directly to who the media is and trying to protect 
their constitutional function.
    There are also limitations on appeal that you can look at.
    I think you can also in drafting language create more of a 
legislative presumption that applies in these cases to make it 
clear to courts that the default position should be not to have 
a gag order, the default position should be not to have these 
secrecy issues.
    To give you an example, the important thing here is 
remember that prosecutors are rational actors. Many are my good 
friends; I litigate against them. They are rational actors, and 
they follow the path of least resistance.
    If you look, for example, at studies with the national 
security letters, from 2000-2005 the number of national 
security letters went from 8,500-47,000.
    Now, you only have that exponential growth if it is the 
path of least resistance. You have to make that path a little 
more difficult.
    Mr. Cohen. Well, I agree with you. We need to make it more 
difficult, and we need to protect the citizens.
    What concerns me--and I think we're going have a briefing 
from the Justice Department after the break--is when did they 
know, the new team, and what do they know about these 
intrusions on the Congress and the press and the gag orders?
    Did they only come to the public's attention after The New 
York Times had reported them? If so, if they had knowledge 
beforehand and waited, didn't plan to make this public, then 
I've got concerns.
    I think that I have faith in Merrick Garland, I have faith 
that he will change the Justice Department's personnel to get 
it to be more transparent. It would be disturbing to think that 
they had this information and only but for The New York Times 
reportage was this forthcoming to the public about the 
intrusion into Mr. Schiff and Mr. Swalwell and everybody 
else's--and the reporters'--otherwise, private communications.
    So, I think we've got to go further, but we do need to 
draft legislation that protects the public, that does put this 
in front of a court.
    Professor Turley, do you think there ought to be--is there 
just one court that issues these or are there many courts?
    Mr. Turley. I think you can still--the problem is that the 
sheer number of these cases is just breathtaking. So, if you 
pour all these into a single court, you're going to have a 
massive court. Judges can handle these questions, but they need 
more structure from you.
    I also want to echo; I have faith as well in Attorney 
General Garland. In fact, I think that he is ideal to deal with 
this question because he's walked the walked. He's been a 
judge. He's dealt with these types of docket issue. He is now 
at the head of the Justice Department. I think that he could be 
a really terrific ally if he means what he says, and we can try 
to solve this problem.
    In the past, the Justice Departments has not been a 
faithful ally, I must tell you. Fifteen years ago, we talked 
about this, and the Justice Department was opposed to shield 
laws and a lot of these provisions.
    I do have faith in General Garland. I am hoping that faith 
is well established.
    Chair Nadler. The time of the gentleman has expired.
    Mr. Massie.
    Mr. Cohen. In my last [inaudible], Mr. Chair, I would just 
like to say to Professor Turley, the last time we had contact I 
was a little brusque maybe with you, a little rough shoulders. 
You're a gentleman and a scholar. I appreciate you. I apologize 
if I want too far.
    Mr. Turley. Thank you very much, Representative.
    Chair Nadler. Mr. Massie.
    Mr. Cohen. You're welcome.
    Mr. Massie. Thank you, Mr. Chair.
    I would like to associate myself with the comments from Mr. 
McClintock and Ms. Lofgren that any protections that we provide 
shouldn't be for a special privileged group of people. I mean, 
that's not the way the Constitution was written.
    Ms. Oberlander referred to the press as the Fourth Estate, 
which prompted me to look up what are the other three estates. 
It's a reference actually not to the three branches of 
government, but to the three estates in Europe, which were the 
clergy, the nobility, and the commoners.
    I think all of them, including the Fourth Estate, deserve 
the protections of the Fourth Amendment. So, whatever we draft, 
I hope it is not just particularly for Congress or for the 
media.
    Professor Turley, you touched on something earlier but 
didn't get to spend enough time on it, about the third-party 
doctrine. Can you explain to us in a little more detail how 
that came about and what we could do in Congress to sort of 
rein that back in?
    Mr. Turley. Yeah. Quite frankly, I think the Supreme Court 
has made an utter mess of this area. I think even people like 
the late Justice Scalia made reference to the fact that 
constitutional criminal procedure, which I used to teach, was 
just an absolute morass created by the Supreme Court.
    Part of the problem is this idea of third parties, that if 
you give things to third parties you don't have that same 
expectation. They treat things like pen registers, giving phone 
numbers, almost as equivalent of, like Greenwood, of putting 
your trash on the curb, that you give up all expectations of 
privacy because you're giving it to someone that you don't 
know.
    Of course, when people put in phone numbers, they are 
giving it to a computer that they assume is subject to some 
types of regulation.
    That has gradually expanded where the exceptions are now 
the rule. So, you have with cases like Smith v. Maryland a 
lower standard than probable cause under the warrant clause.
    What you have to understand is every time the court creates 
one of these exceptions' prosecutors pour into the gap. It is 
not because they are little petty tyrants, it is because they 
have a lot of cases, and they believe very strongly in getting 
information. They want to get it fast.
    That's why you've had this massive increase in national 
security letters because it's so much easier. You virtually 
have to show nothing.
    So, it's going to be up to the Congress to make that path a 
little more difficult, to require showings. The most important 
thing is to have some adversarial process and standing so that 
people like us can come and challenge these things.
    I do classified work in the national security area, and I'm 
read into programs so that the judge and the cleared prosecutor 
and I can argue about evidence. Those are the most extreme 
possible cases you can imagine. Some of those cases are really 
classified at the highest level.
    This should not be so difficult, because this is not highly 
classified information in the vast majority of these cases.
    What I think you heard from Mr. Burt is very important. I 
mean, his company is getting 3,500 requests a year.
    Mr. Massie. Shouldn't the analogy, instead of being taking 
your trash out to the corner and leaving it there, treating 
your data that way, shouldn't it be more like a safe deposit 
box?
    If I put something in the cloud, I have an expectation that 
you're going to do your best effort to keep it private. Yet, 
we've turned the third-party doctrine, which we somehow are 
still clinging to, is turn that on its head. I hope we do take 
that on.
    I would just throw out a couple ideas here.
    If we were really, really, really serious, we would pass a 
law that has criminal penalties for those who invade your 
privacy at the DOJ, FBI, and NSA. I don't care if it is just a 
$50 fine and 30 days paid leave, whatever it is, if there was 
some crime associated with doing this. Now, the penalty should 
be much stiffer than that, obviously.
    So, that's one thing I think we would do. The other thing I 
think we could do is to legalize technical solutions to 
privacy.
    It's technically illegal to make a phone call from a 
location that can't be determined by the government to a 
location that can't be determined by the government. Why is 
that?
    It is technically illegal to have encryption that the 
government doesn't have a key to. Why is that? Why are we 
outlawing the technical solutions to this problem.
    I mean, we're afraid of privacy, but we're clinging to this 
notion that we can give all the keys to these things to some 
folks and not supervise them and trust that they won't be 
rifling through our stuff.
    So, those are just a couple of suggestions.
    Mr. Burt, I like your suggestion of making sure that all 
the national security letters or the secret requests are not 
indefinitely kept secret, but eventually we know about those. 
That's just critical. We've got to know what we've trying to 
legislate.
    Thank you. I yield back.
    Chair Nadler. The gentleman yields back.
    Mr. Johnson.
    Mr. Johnson of Georgia. Thank you, Mr. Chair, for holding 
this very important hearing.
    We are here today because the Department of Justice has 
come up short. Recent reports document that in 2020 the Trump 
Administration secretly obtained from third-party platforms the 
phone and email records of reporters.
    This is not the first time or the first Administration 
under which the Department has done so. We've heard testimony 
today that DOJ has routinely misused secrecy orders to avoid 
basic due process protections in criminal prosecutions.
    As a country, we've watched Presidents as far back as Nixon 
use the legal system to aggressively pursue the sources of 
information and leaks.
    Ms. Oberlander, what changes should the current 
Administration take to ensure that it does not allow its 
Department of Justice to overreach in terms of secrecy orders 
and destroying the ability of the Fourth Estate to do its job, 
which is to maintain our democracy through free and fair 
sharing of information that is sometimes critical of 
government?
    Ms. Oberlander. Thank you, Congressman.
    So, first, I do think it is a great idea to, as Attorney 
General Garland has said, to basically legislate, to work to 
legislate that the Department of Justice is no longer permitted 
to come after journalists' source information. I think that 
would be fantastic.
    Short of that, I think you should legislate particular 
higher standards before the Department of Justice can get 
access to journalists' materials.
    Specifically, there should be--and it should be, again, as 
people have said, not up to the Department of Justice itself, 
but it should have to come to an Article III Judge and they 
should show that the information is absolutely crucial to 
whatever investigation there is, that they have tried all 
alternative sources to get that same information and have 
failed.
    There should also be a balancing test by the judge as to 
whether the information is important enough to outweigh the 
incredible ability of the press to inform the public about 
issues of public importance.
    So, essentially it is a very high standard. The judge 
should have to consider that. Then, as we talked about, the 
media should be able to have notice of it, to be able to 
participate in it, to argue about it. It should be adversarial 
and there should be a right of appeal.
    I mean, these are very, very serious rights that are 
being--and they should be subject to judicial review. That 
would go a long way, frankly.
    Mr. Johnson of Georgia. Okay. Do you believe that the Trump 
Administration followed the Department of Justice guidelines 
when pursuing journalists' sources in the cases of CNN, The New 
York Times, and The Washington Post that were recently 
revealed?
    Ms. Oberlander. Well, the Department has said that they did 
follow the guidelines. We don't know. There's a lot of 
information we don't know. We don't know what information they 
put before the court in their warrant applications, in the 
applications before the court to get this information. We'd 
like to see that.
    We'd like to see why a secrecy order was necessary. As I 
mentioned, these were records that are years old that they were 
looking for in public--leak investigations that had already 
been made public.
    So, there was no real, at least to my perspective, there 
was no real risk that having a notice go to the media would 
have in any way tipped off the subjects of the investigation or 
allowed anyone to destroy the evidence.
    Furthermore, this material was, in fact, in the possession 
of the third-party data provider. It wasn't even in the 
possession really of the media entity. So, the idea that they 
could then turn around and destroy it is somewhat--doesn't 
actually make any sense.
    Mr. Johnson of Georgia. The length of the gag orders in 
these cases was quite excessive. Would you agree?
    Ms. Oberlander. I would.
    Mr. Johnson of Georgia. I mean, two years--
    Chair Nadler. The gentleman's time has expired.
    Mr. Bishop.
    Mr. Bishop. Thank you, Mr. Chair.
    Mr. Burt, I think it bears repeating something that 
Professor Turley referred to in your testimony, that 
``Microsoft reviewed the number of secrecy orders that Federal 
law enforcement agencies have presented to us from 2016 to the 
present. We found that while the number has increased some, 
Federal law enforcement has consistently presented us with 
2,400-3,500 secrecy orders each year, or 7-10 per day.''
    Is that correct?
    Mr. Burt. Yes, that's correct.
    Mr. Bishop. That's an amazing number, particularly when you 
try to imagine what that might be when you go to the other big 
tech firms.
    Professor Turley, you have a figure--and forgive me for 
this ignorance--but you have a figure in your testimony, and 
you mentioned that the national security letters have gone from 
2000-2005, I believe it was, it went from 8,500-47,000 per 
year?
    Mr. Turley. That's correct.
    Mr. Bishop. Now, here's my ignorance.
    Would the secrecy order, Mr. Burt, that you're describing 
be the same? Would that include or overlap with national 
security letters?
    Mr. Burt. No, Representative. It would be in addition to.
    Mr. Bishop. So that would be separate, right? So, in other 
words, a national security letter sort of does similar--there 
are similar concerns associated with that. That would be over 
and above what you are talking about, secrecy orders in 
connection with search warrants.
    Mr. Burt. That's absolutely right.
    Mr. Bishop. Are those data published in the aggregate that 
you know about? Do you understand what I'm asking, Mr. Burt?
    Mr. Burt. Yes. The answer is there isn't any reliable 
source of that information in the aggregate. In fact, with 
regard to national security letters, we had to sue the 
government to be able to say anything about that.
    The resolution of that was that we can only describe the 
number of national security letters we get in these broad 
categories. For example, I can report that--and we do 
transparently report--that in the last reporting period, twice 
a year, we got between zero and 499. That's the most specific 
we can be.
    Mr. Bishop. Fascinating.
    Professor Turley, you spoke about in your testimony--I am 
afraid I didn't get your testimony before the hearing, so I 
haven't had occasion to digest it--but you advocate for a 
shield law. You mentioned one that's drafted. You said that it 
needs to have the definition of journalist modified. As I 
skimmed through, it looks like you think there needs to be a 
broader definition of journalist.
    This sort of goes to some of what Mr. Gaetz was saying, and 
I think Mr. McClintock responded to, about the possibility of 
setting up special privileges for an elite class.
    If journalists are partisan instruments of politicians--or 
the reverse, that is, they direct politicians, in effect--if we 
establish special privileges for them to be able to take 
information and disseminate it that is by law confidential, 
doesn't that grant the power to unilaterally not nullify a law?
    If you take the ProPublica information recently, the 
disclosure of thousands of wealthy taxpayers, selectively 
published, they said they thought about it, they know this 
information is unlawful to publish, but they've decided that 
their advocacy interests trump the law.
    How do we deal with that problem?
    Mr. Turley. Well, this isn't an absolute right. I mean, the 
media is subject, for example, to defamation, they're subject 
to being prosecuted for crimes committed directly by reporters.
    What we're talking about is a constitutionally founded 
privilege. In the critical case of Branzburg, the court heavily 
fractured over this question of privilege. There were some, 
like Douglas, who always believed we should have absolute 
privilege. A number of the Justices felt we should have a 
qualified privilege. In fact, most of the qualified privilege 
statutes are based on the language out of that case.
    A qualified privilege just simply gives some added scrutiny 
and protection to the media. It can be overcome in extreme 
cases. It's there to protect this core function of the media.
    If you take a look at the States, there's 40 States with 
these privileges. They haven't shut down prosecution. It has 
not been overwhelmingly burdensome. The judges have been able 
to use them. I think the same would happen with the Federal 
system as well.
    Mr. Bishop. In the 40 seconds I have got left, can you 
characterize, what is the privilege, what are they privileged 
to do? What are the qualifications upon that or conditions?
    Mr. Turley. Well, what the privilege does is it basically 
gives a full stop for the court. Before you allow reporters to 
be compelled to turn over information, you have to establish 
that you can't reasonably get the information from another 
source, that you have a clear need for this information, where 
the court's going to balance these interests.
    Some of these State laws are quite interesting. In New 
York, they have a different standard. If you go for privilege, 
sort of core news stuff, you have an absolute privilege. If you 
go for less key material, you have a qualified privilege.
    There's a lot of States that have explored different types 
of approaches to this and it gives you a lot of models to look 
at.
    Mr. Bishop. Thank you, Mr. Chair.
    Chair Nadler. The gentleman's time has expired.
    Mr. Cicilline.
    Mr. Cicilline. Thank you, Mr. Chair.
    I think it's safe to say that all of us were very upset 
when we read the reports detailing how in former President 
Trump's Administration the Department of Justice surveilled not 
only journalists, not only Members of Congress, including a 
Member of this Committee, but even Members' staff and family.
    So, I thank you for holding this hearing today and giving 
us an opportunity to really look at the potential abuse of 
power, and particularly the secrecy surrounding these efforts.
    I want to first say I agree with Ms. Oberlander. I think 
there is a higher standard that ought to apply to the press. I 
think that is reflected in the Free Flow of Information Act 
that Congressman Raskin has introduced. It has always been 
bipartisan.
    I also think making sure this applies, these protections 
apply to everyone is important, as Mr. Massie and Ms. Lofgren 
have said.
    One easy way to accomplish it, of course, would be to say 
the Fourth Amendment applies to the data that you generate, 
that you have a reasonable expectation of privacy of what you 
create, and all the Fourth Amendment rights would attach to 
that.
    What I want to focus on in my questions is the secrecy 
surrounding this, because while Microsoft is an example of a 
company that takes this responsibility seriously, to litigate 
it and challenge this, we have no assurances other companies do 
the same.
    Many of these big technology platforms don't have 
competitors. So, if they are willy-nilly giving your stuff away 
without contesting it, we don't know about it and we can't 
choose to go to another platform, because they don't exist. 
They are monopolies.
    So, I want to really dig down on the secrecy, because I 
think that's really one of the important issues here. I think 
we don't have a full understanding of what's presented to a 
court and what the court has to consider allowing these gag 
orders to be put in place.
    So, I am going to begin with you, Mr. Burt.
    What level of details are prosecutors required to provide 
both the court and the providers when they are seeking a gag 
order? Do they simply have to say, ``We meet the statute,'' or 
do they have to present facts which show, in fact, disclosure 
would result in one of the things articulated in the statute?
    Mr. Burt. It's a great question, Representative. The answer 
is that today they only have to present to the court this 
boilerplate assertion that they meet the criteria of the 
statute and that there's a reasonable suspicion that they can 
meet that standard.
    Mr. Cicilline. No facts underlying that assertion?
    Mr. Burt. That's right. The Justice Department's policy 
that they articulated in 2017 in response to our litigation 
said that they should articulate those facts.
    Mr. Cicilline. Thank you.
    Mr. Burt. Their own--
    Mr. Cicilline. No, I appreciate that.
    Mr. Burt. Their template says they don't have to.
    Mr. Cicilline. Thank you.
    Ms. Burton, what about after the secrecy order is lifted 
and the provider is able to give notice, how much information 
is shared with the targeted party? Is it required that the 
information be shared once the secrecy order has lifted?
    Ms. Burton. No, it's not, Congressman. That's one of the 
problems. I mean, it's an entirely self-regulated process at 
the Department of Justice.
    To take your concerns, I agree with you. It is not just a 
First Estate concern, and it is really a self-regulation 
concern. You cannot have the Department of Justice being 
prosecutor, judge, and jury. They determine when you get 
notice, they determine what you know, and you go to an Article 
III Court and you may or may not have enough information.
    Which is why I think you all are very much on the right 
track to have a procedural set of requirements that are in a 
statute, that it can apply more broadly, and we leave it to 
judges, who now have a standard, and there's notice to the 
parties, and it's not secret.
    We don't allow prior restraint in this country of the 
press. It should not be--
    Mr. Cicilline. I'm trying to get in a couple of questions. 
I appreciate that. Thank you.
    Mr. Burt, once the electronic surveillance-related gag 
order expires, is there currently an obligation for the 
Department of Justice to at least notify the target of the 
warrant that a gag order was in place?
    Mr. Burt. Absolutely not. In fact, they don't typically do 
that, and so it falls upon us do that.
    Mr. Cicilline. That burden that falls entirely on you, are 
you required to notify your clients or users or does that vary 
on a contractual basis?
    Mr. Burt. We are not required to, but we have a firm policy 
that we do notify in all cases.
    Mr. Cicilline. Is that same policy in place, to your 
knowledge, with respect to all the other large technology 
platforms?
    Mr. Burt. To my knowledge, that policy is not in place with 
all technology platforms.
    Mr. Cicilline. What limited information should the 
government communicate to suspects, in your view, that their 
Fourth Amendment rights may have been implicated by one of 
these orders or collections?
    Mr. Burt. Well, we believe that in those very rare 
instances where this kind of a secrecy order is justified--and 
we think the standard should be probable cause, facts should be 
presented, courts should find that the facts are sufficient--
but in those rare instances where that standard is met, then 
when the gag order expires, the target should be informed that 
there was a gag order and should be informed of the scope of 
the search.
    Mr. Cicilline. Thank you very much.
    Again, it seems to me it is inappropriate for us to expect 
that third parties are going to fiercely defend the privacy 
rights of individuals, which this current architecture requires 
some companies take it seriously, some don't, but citizens and 
users lose as a result.
    I thank you again for your testimony.
    I yield back, Mr. Chair.
    Chair Nadler. The gentleman yields back.
    Ms. Spartz.
    Ms. Spartz. Thank you, Mr. Chair.
    I'm actually kind of listening to all this discussion very 
surprised how many loopholes our laws have and very surprised 
to hear our Constitution hasn't changed, thank God. Ultimately, 
what Mr. McClintock brought up, what's happening, it is really 
appalling to me. No wonder our citizens are not trusting 
government and it's very bad.
    So, I have a quick question. I think Congressman Biggs 
brought another good question of rubber stamping. I will yield 
to him in a second, because I would like to finish that 
conversation.
    Professor Turley, just for you, what allowed for us to have 
these loopholes? Is it interpretation of the courts? Or is it 
really something in legal framework that's so ambiguous that we 
need to clarify? What is allowed?
    Because it seems like this due process should exist 
regardless of if we have a new technology or old technology, 
where we are. What's happened?
    Mr. Turley. Well, it's a perfect storm, because you have 
the court that opened this up creating a whole group of body of 
searches that can occur below the probable cause level with 
reasonable suspicion. That snowballed within a short time. They 
viewed those as narrow exceptions. It became the exception that 
swallowed the rule.
    Then you had technology that poured into that gap. That is, 
it happened to be technology that fell in those areas. Suddenly 
we're not protecting people, we're protecting places, or in 
this case we're not protecting places like the cloud.
    So, if you take stuff from one source to another, it's 
protected over here. The minute it goes to a cloud, which you 
have to use in many cases, or you use as a matter of course, it 
loses that protection.
    I think your point is really the vital one. I think a lot 
of people would be very surprised when they find out that their 
information is so readily available to the government.
    That itself is a very corrupting aspect in a free society, 
that the public has a different view of what their privacy is 
from what the government is actively doing, not in a small 
number of cases, in massive numbers of cases.
    Ms. Spartz. That sounds more like a surveillance State. We 
have to deal with that. You believe it needs to have some legal 
actions from Congress to be able to remedy this situation?
    Mr. Turley. This is not a particularly difficult problem to 
solve. It only takes will. You can easily create a framework 
that will protect privacy and fill this gap.
    Ms. Spartz. Well, thank you very much.
    I yield to Mr. Biggs.
    Mr. Biggs. I thank the gentlelady for yielding.
    When we left off, when I ran out of time, Professor Turley 
just answered my question. I'll just remind you of what it is 
and give you the context.
    I was asking about the stick that might be necessary to 
help what we typically would think of as an independent court.
    So, you all seem to be in agreement with guidelines, et 
cetera, statutory guidelines. How do you make sure that those 
are going to be tough enough?
    Mr. Burt. If I may--
    Mr. Biggs. Yes, Mr. Burt, and then down the line, then Ms. 
Burton.
    Mr. Burt. If I may, I think the concept of extending the 
Fourth Amendment to data that is stored in the cloud is a 
reasonable framework to consider here, because then that would 
take all the existing sticks, as you put it, that would apply 
when government overreaches and violates Fourth Amendment 
rights, exclusion of evidence and so forth. It would be 
applicable here as well.
    The irony is that Fourth Amendment jurisprudence is based 
on this notion of reasonable expectation of privacy. In fact, 
your security and privacy of your data is higher in the cloud 
than it would be if you kept it in your premises or on your 
network at your corporation.
    So, the law has not advanced with the technology to protect 
our citizens and our organizations' information.
    Mr. Biggs. Thank you.
    Ms. Oberlander. Just to add what my colleague here said, 
one of the reasons that media organizations are putting their 
data in the cloud is because they are also concerned about the 
security and that they can't afford to have the kind of 
technologies and technologists in their shops, in their shops 
who could protect from hacking and phishing and all the other 
problems that we have with our data. So, it puts them in a--
puts many of the media companies in a really tricky position.
    To the point about what kind of penalties you could have, 
there is the possibility perhaps of a 1983 action if rights 
were violated, and journalists have used that successfully in 
certain cases.
    Mr. Biggs. Ms. Burton, before you answer this, I think we 
all would presume, at least I do anyway, that there is a 
private property interest. You have private property rights in 
your data, right?
    It begs the question that Mr. McClintock and Ms. Spartz 
were raising, and actually Ms. Lofgren, and then Professor 
Turley expounded on it. Why then do we have these loopholes 
that attack Fourth Amendment rights over your otherwise well-
known, and it should be established, private property interest 
in your data?
    Chair Nadler. The time has expired. The Witness may answer 
the question.
    Mr. Turley. If it's to me, the answer--
    Mr. Biggs. Ms. Burton.
    Mr. Turley. Oh, Ms. Burton. I'm sorry.
    Ms. Burton. I think that the minute we get enough process 
into a statute that you're going to see prosecutors act more 
rationally. I would leave it to the courts to suppress the 
evidence and to dismiss cases. I think that, from a 
prosecutor's point of view, is remedy enough.
    I'm not in favor of creating lots more causes of actions 
around this. I think we're trying to simplify it. I think we're 
trying to protect rights. I think the courts would actually 
make sure that occurred.
    Chair Nadler. The gentleman yields back.
    Mr. Lieu.
    Mr. Lieu. Thank you, Chair Nadler, for holding this 
important hearing.
    Professor Turley, I'd like to follow up on Congressman 
McClintock's line of questioning and just walk through some 
standards and whether judges are involved.
    So, I wanted to talk about the difference between their 
contents of, let's say, a document versus metadata. So, if the 
Department of Justice wants to get the contents of an 
electronic letter that is on your home computer, they would 
need a warrant signed by a judge. Is that right?
    Mr. Turley. That's correct.
    Mr. Lieu. If they want the contents of that same electronic 
letter stored on a cloud, they will still need a warrant signed 
by a judge. Is that right?
    Mr. Turley. Right. If they get at the contents, if they can 
get metadata, they can show a--
    Mr. Lieu. No. I got it. No, no. Let's not confuse things. 
If they want the same, the content of that electronic letter on 
a cloud, they will need a warrant signed by a judge, right?
    Mr. Turley. Yes.
    Mr. Lieu. Okay.
    Now, let's talk about metadata. First, what is metadata?
    Mr. Turley. Well, it was defined by one person as basically 
data about data. That is metadata describes data. That can also 
then give you information as to the senders, the 
identification, the subject. That's a lot of information that--
    Mr. Lieu. Understood. Okay. So, let's say the Department of 
Justice wants to get metadata that they believe is stored on 
your home computer. They would need a warrant signed by a 
judge, right?
    Mr. Turley. To get access to a computer, that's correct.
    Mr. Lieu. Okay.
    Now, if they want to get metadata stored on the cloud, they 
could simply send a subpoena and get that data without a 
warrant. Is that right?
    Mr. Turley. Yeah. In addition, they make companies like Mr. 
Burt's company essentially the unwilling participants in that 
type of disclosure. They are being potentially commandeered.
    Mr. Lieu. Thank you.
    Basic question here. Grand jury subpoenas, a grand jury 
subpoena for metadata, is a judge involved in that process at 
all?
    Mr. Turley. For a grand jury, grand juries can issue for 
document production at a standard lower than probable cause. 
Judges are supervising that procedure. In most cases these 
things are issued with very little review. More importantly, 
grand jury subpoenas can come under the probable cause standard 
for document production.
    Mr. Lieu. Got it.
    So, let's go back to this example where if you had metadata 
that happens to be stored on the cloud, there is no longer a 
warrant requirement. What if Congress simply put in a warrant 
requirement for metadata stored on the cloud, what's your sense 
of that proposal?
    Mr. Turley. Well, you could do that, because remember, the 
probable cause standard is not some huge standard. It's 
actually--as a criminal defense attorney, I can tell you it's a 
pretty easy standard for the prosecution to meet. You have to 
have clearly articulable facts for getting that type of 
information.
    I don't think that the world come to a sudden stop in terms 
of prosecutions. It would make this--you would change the grade 
a bit to make it a little more of a climb for prosecutors.
    Because right now, this is similar to the false lantern 
approach in the East Coast when people would put a lantern to 
confuse people to think there was safe harbor and this was a 
lighthouse.
    So, people go to the cloud thinking--correctly--that the 
cloud has lots of protection for their data, and it turns out 
it's a myth once you do that.
    Mr. Lieu. Thank you.
    Now, I am sensitive to the view that we don't want to draw 
lines around certain groups of people and not others. I do know 
that the Constitution specifically talks about the free press. 
So, journalists are in fact in a different category.
    The Constitution also does put in just structurally 
separation of powers. When you have one branch, the Executive 
Branch, trying to intimidate, for example, Congress and seizing 
all sorts of information, that does pose problems.
    So, my view is that we could, in fact, try to do something 
different. I want to get your thoughts. What if the Department 
of Justice, when they are getting information on either 
journalists or Members of Congress, they had to provide 
notification, for example, to the Department of Justice 
Inspector General, just as sort of a second check on exactly 
what they are doing? What do you think about that?
    Mr. Turley. I think that would be a great idea in terms of 
greater transparency.
    I want to note that some aspects of this confuse me. You 
have three former and current Attorneys General saying they 
were not aware of this program. That's not supposed to happen. 
Since the 1970s, either the Attorney General or a Designated 
High Official is supposed to sign off on this.
    So, I don't know what happened there. It's one of the first 
things I think this Committee should try to find out about.
    Mr. Lieu. Thank you.
    My last question is to Mr. Burt at Microsoft.
    This increase in these secrecy orders, do you know what the 
investigations are about? Could it be, for example, about child 
pornography or something else? Does the DOJ tell what those 
investigations are about?
    With that, I yield back.
    Mr. Burt. We don't always know what the investigations are 
about. We do know enough to know that in the vast majority of 
these cases they are just routine investigations that are not 
about child abuse online or about national security issues, but 
they're just routine.
    I do want to make one thing clear, because I may have 
contributed to this confusion. When we talk about a standard 
like the warrant standard, the probable cause standard for a 
warrant, yes, we have to get a warrant before we produce 
content, email for example. Just a subpoena is all that's 
necessary to get metadata from us.
    What we are here talking about today is the secrecy order 
that accompanies that warrant or that subpoena. It's there that 
we need a higher standard and actual findings of fact to 
establish that a secrecy order is truly necessary.
    Mr. Lieu. Thank you.
    Chair Nadler. The gentleman yields back.
    Mr. Fitzgerald.
    Mr. Fitzgerald. Thank you, Mr. Chair.
    Sometimes I think we are kind of our worst enemies on this, 
whether it's Congress or as the judiciary was brought up 
earlier.
    Could you comment, Mr. Burt and Professor Turley, a little 
bit about changes or accommodations that have been made under 
the auspices of either national security or public health when 
it comes to kind of watering down of how this is viewed?
    Mr. Turley. Do you want to start?
    Mr. Burt. Go ahead.
    Mr. Turley. Well, there's been a lot of changes. The 
interesting thing is this body has shown that it can solve 
problems. You did that with healthcare information. You created 
added privacy protections. You've done that in creating new 
limitations on secret searches. All that can be done if you 
have the will do it.
    What we're really talking about here is not interfering 
with investigations, but to require a greater level of 
transparency and proof, but also to allow greater numbers of 
people to have access so they can raise it.
    This is a problem that we have a lot in national security 
litigation that I do, and that is the government often wants to 
do ex parte, in camera presentations and I'm in court screaming 
bloody murder, saying diplomatically to the judge, ``Judge, I 
know you are familiar with this, but you're not familiar with 
this case. You need somebody who knows what this case is about 
to spot whether these documents are material.'' So, that's a 
longstanding problem we have.
    The problems we face in classified trials are nothing like 
what is being done here. Basically, people are told they have 
no ability to challenge it.
    Take a look at the Gonzales case out of the Second Circuit. 
In that case, The New York Times reasonably said, ``No, we're 
not going to turn over our phone records to you,'' and then 
called their provider and said, ``By the way, if they ask for 
our phone records, please tell us so that we can go to court.'' 
The provider said no, no doubt because the Department of 
Justice said don't tell them.
    The Department of Justice's position in Gonzales was The 
New York Times had no standing to be heard on this issue to 
appeal this question. In what universe of due process would 
that seem reasonable to you?
    Ms. Fitzgerald. Mr. Burt.
    Mr. Burt. I would just add that what we've seen happen over 
the last two, three decades is that tools that were provided to 
law enforcement to address a particular problem and a 
particular concern, especially around national security, have 
now been overtaken by technology and the way that people keep 
and store their data.
    Those tools have now not been restricted and limited in an 
appropriate way to protect individual rights as technology has 
moved data from, say, on premises into the cloud.
    That's what we're seeking here, is a restriction on those 
tools that still enable the kinds of investigations that are 
truly necessary to be conducted for a brief period of time in 
secret, but that in most cases enable notification to our 
customers when their data is being obtained.
    Mr. Fitzgerald. Thank you. Thank you very much.
    Professor Turley, let me get a little more specific and 
down into some of the issues that had been discussed earlier by 
some of my colleagues.
    The 2017 report by Chair Ron Johnson on the Senate 
Committee on Homeland Security and Governmental Affairs found 
that the Trump Administration was facing about 125 leaked 
stories, about one a day. The report concluded that the leaks, 
with the capacity to damage national security, which is what I 
was trying to tee up earlier, flowed faster under President 
Trump than during President Obama and even George W. Bush.
    Why is this problematic? Why was there a difference between 
Administrations? Ultimately this misleading narrative that's 
been out there needs to be addressed. I'm just wondering what 
comments you might have on that.
    Mr. Turley. Well, frankly, I've never seen leaks like the 
ones we saw in the Trump Administration. They were occurring so 
frequently it was almost like you were getting leaks in real 
time. You would get leaks about meetings that just happened.
    That obviously can't happen. You can't have a functioning 
Presidency if you think that whatever you told the world 
leader, or your aides is immediately going to be heard on CNN 
or FOX. The government has legitimate reason to hunt leakers.
    My objection is what I call reverse engineering. Nobody can 
contest that the Trump Administration, when it announced it was 
going to go after leakers, had every right do that, to go try 
to find out who was leaking unauthorized information.
    What concerns me is that it's always tempting for 
prosecutors to reverse engineer. They know who received 
information. Just look at the byline on the article, that's the 
person who is the recipient.
    So, you can reverse engineer by just focusing the 
investigation on the reporter and then working back to the 
sender. That's a very dangerous approach. It's dangerous for 
the Constitution.
    The preferred system is to look at the suspects. In the 
process of that, you're going to find out the numbers of 
reporters, you have to, otherwise you're going to stop all leak 
investigations. It's where you start. My suspicion is this 
might be a case of reverse engineering which I'd love this 
Committee to confirm.
    Chair Nadler. The gentleman's time has expired.
    Mr. Raskin.
    Mr. Raskin. Thank you, Mr. Chair. Thanks for calling this 
hearing in the immediate wake of revelations that the DOJ 
sought the telephone and email records not just of journalists, 
but also of two of our colleagues, Mr. Swalwell and Mr. Schiff, 
as well as even family and staff members apparently.
    I want to thank the Witnesses for helping us examine the 
threats specifically posed to the freedom of the press by these 
practices. I think it's a matter of fundamental importance to 
American democracy.
    I'm pleased to note that tomorrow I will be introducing the 
PRESS Act, the Protect Reporters from Exploitative State Spying 
Act, which I've been working on with Senator Wyden for some 
time, along with my colleague Mr. Lieu.
    This bill is an update of the Free Flow of Information Act 
that I proudly introduced in the last Congress with our 
colleague, the Ranking Member, Mr. Jordan, in the 115th.
    It will prevent Federal law enforcement from being able to 
obtain information from covered journalists through their work 
devices and accounts, as well as their personal devices and 
accounts.
    It will also prevent the government from conducting an end 
run around these prohibitions by preventing them from seeking 
third-party communications held by computing and communication 
services except in narrow exceptional circumstances.
    I hope that colleagues on both sides of the aisle, as 
demonstrated by what appears to be broad consensus today, will 
join us in cosponsoring this bill and work to defend the 
freedom of the press against these practices.
    Ms. Burton and Ms. Oberlander, I'd appreciate if you could 
expound on the need to address the secrecy orders being used by 
law enforcement to prevent targets from even being aware that 
their information is being sought and what type of oversight 
the court should be conducting to rein in the abuse of secrecy 
orders.
    Ms. Burton. Thank you, Congressman.
    I would suggest that by having again a narrow procedural 
bill which does that, there cannot be a secrecy order without a 
compelling interest that's been identified and presented to a 
judge very specifically and a judge has actually made a ruling. 
That if we did that, you would see very few secrecy orders, 
because before we had this back door that everyone was going 
through, it wasn't a problem at the same levels that it is now.
    So, I would just suggest that if we have proper and clear 
requirements that there is a bilateral presentation to a court, 
either through the judiciary, which would create some 
opportunity to hear the other side of an argument if something 
really was a national security issue, a very narrow set of 
cases, that would probably resolve the secrecy issue.
    Mr. Raskin. Then the secrecy order would go back to being 
an exceptional case, rather than the rule now.
    Ms. Burton. Exactly.
    Mr. Raskin. It seems to be pretty perfunctory that they get 
them now, right? Yeah.
    Ms. Burton. That's right. It's having a dual process and 
it's having a presumption in favor of openness that judges 
respond very well to, in light of all the constitutional rules 
and cases that have upheld those basic tenets.
    Mr. Raskin. Okay.
    Did any of the other Witnesses want to comment on that?
    Ms. Oberlander. I would only add that there are a couple 
other things we can do, too.
    So, as we've discussed, narrow the length of time that 
these secrecy orders are in effect by putting a cap on them in 
the statute. Right now, in 2705(b), there's no time limit. So, 
you add 45 days or 90 days, and that's it, you then have to 
tell the subject, the media entity, that their materials have 
been requested, that would help as well.
    Then the other thing that has been presented in some of our 
testimony is that, in cases where it's truly necessary to not 
inform the affected media, maybe we can have an independent 
third party, some sort of advocate, perhaps who doesn't 
necessarily let the media know that they've been hired, but who 
comes in and talks to the judge and says, these are the First 
Amendment--these are the very, very important First Amendment 
interests here and you should please be considering them. So, 
adding, sort of, another to the process.
    Mr. Raskin. Then, Ms. Oberlander let me just stick with you 
for a second. You noted in your testimony some of the policies 
that are being used by DOJ to limit the use of subpoenas 
against journalists, but you observed that these are merely 
internal policies that are subject to override at whim by 
future Administrations and they don't address the end runs that 
are being conducted routinely by law enforcement to obtain 
third-party data from companies like Microsoft, as noted by Mr. 
Burt.
    I wonder, what do you think about the need for a fresh 
shield law, given everything that we've learned in last few 
months?
    Maybe I can close just with that question to all the 
Witnesses.
    Ms. Oberlander. I am delighted to hear that you're 
introducing the PRESS Act tomorrow. We absolutely need a shield 
law, which will, frankly, protect from government overreach but 
also in private cases, as well, and civil cases. So, I really 
think we absolutely need it, and I'm really thrilled to see 
that Congress is working towards--
    Mr. Raskin. Next, just if I could go down the line there, 
Professor Turley, do you agree we need one?
    Mr. Turley. Oh, I do agree. The only quibble I had in my 
testimony is on the--it's more than a quibble, is a 
disagreement about the definition of covered persons.
    I also think that it can be tweaked to increase some 
issues. For example, there's a single line, ``National security 
may be considered by a court,'' that's in the previous 
legislation, and it really doesn't say how that should be 
weighed by the court. I expect a lot of judges would look 
askance at that as a standard.
    Mr. Raskin. Okay.
    Ms. Burton, do you agree?
    Ms. Burton. I agree, but I wouldn't let that process, which 
will be a longer process, stop this Committee from issuing a 
bill and a law right away. I think that we cannot underestimate 
the harm of privacy and the harm of a lack of process here, 
which, to me, is incredibly dangerous to the American public. I 
do support a shield bill. I think it's a more complex 
discussion which we should be reflecting on also.
    Mr. Raskin. Thank you.
    I yield back, Mr. Chair. Thank you for your indulgence.
    Chair Nadler. The gentleman yields back.
    Mr. Jordan.
    Mr. Jordan. Thank you, Mr. Chair.
    I want to thank the Chair for putting this hearing together 
today on this important subject. I was just thinking about, in 
kind of a broad sense, how serious this situation is.
    Americans have a Fourth Amendment expectation of privacy 
regarding all their information, including, as we've talked 
about, information stored in the cloud. Yet, government can 
come to a third party, like Mr. Burt's company, and, with 
something less than a warrant, get that information. When 
government does that, they tell Mr. Burt that he can't tell his 
customer what's going on, he can't tell his customer that, hey, 
your Fourth Amendment liberties have just been violated. When 
government initiates it all, the Attorney General doesn't even 
sign off on it.
    Now, if that's not serious--the current situation that 
brought us here is the situation that has been in the press. We 
have had Mr. Barr, I think it's in Mr. Turley's testimony. He 
says, very first point, the authorization, ``It's notable.'' 
I'd said it's more than notable. I'd say it's shocking, it's 
alarming, that Jeff Sessions, Bill Barr, and Merrick Garland 
all deny any knowledge of what took place. Somebody had to sign 
off on it.
    So, you've got the fundamental issue at stake here, and you 
got no one who's been Senate-confirmed--which is part of our 
checks and balances on protecting our liberties--who's even 
signed off on this.
    So, I find this--as Mr. Gaetz led off on our side, the idea 
that we can work together on this, Mr. Chair, and do something, 
whether it's the shield law that I've cosponsored in the past 
with Mr. Raskin or what have you. That is the situation.
    I'm just curious, Mr. Burt, has it happened to the same 
customer several times?
    Mr. Burt. I'm sure it has happened to the same customer 
several times, although I can't say that with any specificity. 
I'm sure it has happened.
    Mr. Jordan. So, it could even be worse than I just 
described.
    Mr. Burt. It could be.
    I would just--one thing, Congressman, is that one of the 
things we always do when we get these processes, we look to 
make sure that it's adequate. We will not produce our 
customers' content, our email or other content, without a 
warrant. We require a warrant.
    We still get subject to the secrecy order, so we can't tell 
the customer that their data's been taken. Only the customer 
can actually exercise their Fourth Amendment right. You can't 
exercise your right if you don't know it's been violated.
    Mr. Jordan. Even when you suspect it might be and they tell 
you, as in the Gonzalez case, which Mr. Turley has cited, they 
can specifically say, no, you can't even--they can't do it. 
There's no way to go make your case and be an advocate and do 
what you need to do in a court.
    Mr. Burt. That's right. The court would say, we don't have 
standing on the Fourth Amendment issue. We would be told we 
don't have the right to tell our customer that they should go 
look to see if their Fourth Amendment rights have been 
violated.
    Mr. Jordan. Okay.
    So, Mr. Turley, what should we do? This may be the first 
time this Committee, this Congress, has actually had some kind 
of agreement on maybe we can work together on something. So, 
tell us steps one, two, and three, what you think we should do.
    Because the idea that Mr. Raskin and I, who don't agree on 
a whole lot, agree and we've cosponsored this legislation is 
telling. You've heard the comments from both sides.
    So, give us the one, two, three that the Congress of the 
United States should pass.
    Mr. Turley. Well, putting aside the shield law, which we 
discussed, I note there are six areas I think should look at, 
but I think that you need to strengthen these standards. You 
need to give courts more concrete standards, give standing to 
companies, like Microsoft, like The New York Times, to be able 
to contest these issues, to limit these types of agreements.
    You've got to stop relying on the goodwill of Department of 
Justice. Department of Justice says that these types of orders 
have to be, quote, ``extraordinary measures,'' not standard 
investigatory practices. If the reports are true, as to what 
we've been reading about, then that and a buck will buy you a 
cup of coffee. It was not worth the paper they wrote it on. You 
need to establish concrete standards that can be appealed, and 
that the critical parties of interest can be in that room.
    Then we also need greater transparency on how many of these 
things are being issued and their conditions. You have a number 
of courts that have complained in writing that they're getting 
nothing but boilerplate language from the Justice Department 
and little ability of the court to say no.
    Mr. Jordan. Great.
    Thank you all.
    Mr. Burt, you wanted to--
    Mr. Burt. Yeah. We detail in my written testimony the steps 
we think the Committee should consider, but I could just 
emphasize a couple of them as really critical.
    First, the restriction on us telling our customer is a 
restriction on our First Amendment right. A number of courts 
have recognized that, which means that the standard of a 
secrecy order should be a strict scrutiny standard. That's not 
being applied. So, the corrective legislation would be clear 
that strict scrutiny should be applied and that there must be 
findings by the court based on compelling evidence submitted to 
the court showing that standard has been met.
    Even then, these privacy orders should never be longer 
than, we propose, 90 days without clear evidence being shown 
later on as to why they should be extended.
    We think just those steps would significantly reduce the 
number of these privacy orders that are even sought and would 
certainly reduce the number that are being granted and confine 
them to those cases where they are truly necessary in the 
national interest. Because they would have to show, to get that 
privacy order, that they can meet one of those five statutory 
bases for getting a privacy order, which are reasonable reasons 
to proceed in a short-term, private, secret way.
    Chair Nadler. The gentleman's time has expired.
    Mr. Jeffries?
    Mr. Jeffries. I thank the distinguished Chair for holding 
this hearing, as well as the Witnesses for your presence here 
today.
    Clearly, in the constitutional construct of this country, 
we've got an Article I Legislative Branch that I'm very proud 
to serve in, the Article II Executive Branch, the Article III 
Judiciary, all apparently constructed to make sure that there 
are checks and balances.
    Also, I think the Framers of the Constitution recognized 
the importance of a free and fair press. It's in the First 
Amendment, the first decision made to amend the Constitution, 
recognizing that perhaps a fourth estate was also central to 
their vision as to what the democratic Republic would look 
like, were we able to keep it.
    So, I just wanted to ask a few questions, and, Ms. 
Oberlander, I'll start with you. Throughout your career, you've 
advised media companies and journalists, I believe, on the 
legal implications of reporting on matters of public concern in 
national security. Is that right?
    Ms. Oberlander. Yes, that is.
    Mr. Jeffries. In your view, how has the government's use 
of, what I would phrase, secret subpoenas and gag orders 
threatened the ability of journalists to actually do their job?
    Ms. Oberlander. So, journalists who are afraid that they 
are being surveilled or even that they have been surveilled in 
the past or that they are--it's very difficult to go and 
convince or talk to or be able to fairly represent to a source 
that they will try to maintain their confidentiality. It's 
quite chilling.
    I mean, some of it is on the source side, where they hear--
they see that the journalists have been subject to subpoenas 
after the fact, and they say, ``I can't talk to you.'' It makes 
it very, very challenging.
    Mr. Jeffries. Is it fair to say that, in providing 
information to the public, which is a great service, that the 
media, the fourth estate that journalists provide, that they 
often will rely on confidential sources? Is that right?
    Ms. Oberlander. Yes. There's a lot of reporting, national 
security reporting but also all sorts of other very important 
reporting, that relies on confidential sources.
    Mr. Jeffries. Can you elaborate on the importance of 
maintaining confidential sources without, sort of, this 
practice being chilled by an overbroad or overly aggressive 
Department of Justice utilizing these secret subpoenas to try 
to unroot these sources?
    Ms. Oberlander. Well, yes. If you--in our papers, in the 
testimony, you can look at all sorts of incredibly important 
stories of, really, national importance that were based on 
confidential sources. Some were, in fact, national security 
stories, but others were conditions at Walter Reed, levels of 
corruption in foreign governments.
    In fact, frankly, as a person who has worked at Univision, 
I can report that there's an awful lot of reporting about 
what's happening internationally with other governments, not 
the American Government, where you have very, very important 
reporting coming through and where the sources are literally 
afraid for their lives.
    So, if you cannot maintain their confidentiality, if 
there's a risk that they're going to be disclosed, then they 
really are--they may be killed. They have very legitimate fears 
of retaliation. That, of course--fortunately, we tend not to 
have killed too many journalists or sources here that I'm aware 
of in the U.S., but it's definitely a big part of our 
reporting.
    Similarly, there have been reports, much reporting, about 
all sorts of fraud: Fraud in H-2A visa applications, things 
that are relying on confidential sources, people who don't want 
to be disclosed because they may be here, they may be 
undocumented, but they still may be subjected to quite horrible 
conditions; the Enron reporting; the BALCO reporting; and, just 
now, even the reporting about the tax filings of wealthy 
Americans.
    Mr. Jeffries. Now, in justifying what some of us may 
characterize as overly aggressive and/or inappropriate behavior 
at times, Department of Justice or other governmental entities 
will sometimes cite national security. That's a very broad 
phrase. Certainly, all are concerned about national security.
    In your experience, can you just, in the final few moments 
that I've got, articulate whether that is being invoked in an 
overly broad fashion? How might we think about viewing and 
balancing national security as a concern but also allowing the 
free and fair press, as vital to our democracy, to also be able 
to thrive?
    Ms. Oberlander. So--
    Chair Nadler. The time of the gentleman has expired. The 
Witness may answer the question.
    Ms. Oberlander. So, there's a longstanding problem of 
overclassification of information in the country. Because of 
that, if a source discloses some information that is classified 
and maybe gives the government an opportunity to argue that the 
disclosure is a violation of one of the secrecy acts or the 
Espionage Act, you all of a sudden have a national security 
issue, when, really, much of that information is not of that 
kind of importance where you would be disclosing something 
truly secret and dangerous to the country.
    So, one way of restricting it is to restrict the definition 
of ``national security'' in any of the statutes that we pass--I 
mean, in terms of what would qualify for an exception--and to 
narrow it, maybe, as has been proposed, just to include 
terrorists and potential terrorist acts, a really dramatic 
issue, and not just a level of embarrassment to the government. 
That would be one approach.
    Mr. Jeffries. Thank you.
    Chair Nadler. Mr. Bentz?
    Mr. Bentz. Thank you, Mr. Chair.
    Thanks all the Witnesses for their excellent testimony and 
their doubly excellent testimony as it appears in my notebook 
here.
    We had a 25-hour, marathon discussion about Big Tech just 
last week, and much of that discussion focused on eroding 
thoughts about privacy.
    So, Professor Turley, I think you mentioned that the 
reasonable expectation of privacy perhaps isn't as reasonable 
as it once was, given what we're now doing.
    So, your awareness of that space leads me to ask you, what 
is our new standard? What's the alternative if none of us 
should expect privacy anymore in this dual life we live, one 
online and one sitting here today?
    Mr. Turley. Well, I think that is the danger, that we could 
move towards a post-privacy world. That's something that none 
of us wants to see happen.
    The Katz standard is unlikely to change, but it means that 
our protection from government surveillance is based on our 
reasonable expectation of privacy. As that expectation falls, 
the government's ability to engage in warrantless surveillance 
increases, and that can make expectations fall further.
    This is the ultimate example of that. People store a great 
deal of their information on the cloud. As they begin to 
understand that what they send in messages, in terms of 
metadata, is not protected and phone numbers are not protected 
and all these other areas are treated as just subject to the 
standard of reasonable suspicion, which is barely a speed bump 
for prosecutors, their expectations will decline further.
    What worries me is--I tell my students this all the time 
when I teach privacy at the law school--is that my students' 
expectation of privacy is a fraction of my own, and we're 
seeing this decline in generations. It has real impacts on 
government ability to engage in warrantless surveillance.
    That's why this is an occasion where the Congress actually 
can correct the error of the courts, can come in and say, we 
actually don't want to live in a post-privacy world. There is 
new technology here, particularly on the cloud, and we're going 
to protect it.
    Because if we're really serious about Katz, that the Fourth 
Amendment protects people, not places, then go protect people. 
You find them in the cloud, in terms of what they are leaving 
there. Then you would actually defend Katz more than the 
Supreme Court has done.
    Mr. Bentz. Thank you, Professor.
    Let's move to Ms. Burton, then.
    On page 11 of your written testimony, you note that there 
had been a constitutional violation, I think was the way you 
put it, preventing a lawyer communicating with their clients by 
virtue of one of these gag orders.
    Are you familiar with any other situation where such a 
prohibition has occurred, where a lawyer has been told by a 
judge, you can't talk with your client?
    Ms. Burton. No, I'm not aware of one, Congressman. I think 
it's a clear violation of prior restraint laws and the 
attorney-client privilege laws. If I had been subject to that, 
I would've brought a separate action in the courts to have that 
vacated.
    Obviously, that's not something that should--you shouldn't 
need to do. It should be part of continuing legislation that 
we're considering today.
    Mr. Bentz. Right.
    At the bottom of the paragraph, your last sentence, you 
state, ``Any legislation should clarify the extraordinary 
presumption against such orders and the heavy burden that 
government must bear to justify one.''
    Would you describe how--or tell us how you would craft the 
definition of that heavy burden.
    Ms. Burton. Yeah, I think there has to be a compelling 
interest before any kind of a secrecy order can be imposed.
    One of the things we've done is we have contractual 
provisions with all our cloud providers that require them to 
give us notice. So, that has actually helped, which tells me 
that if we were to add some language into statutes, we would 
have the same benefit of that.
    The government will typically go to whoever is easiest to 
get the information from. If there's a battle over a 
contractual provision, I give credit to Microsoft, they've been 
very good at giving us notice, but that's not the case in all 
our communication providers.
    Mr. Bentz. Well, thank you.
    Thank all of you for your patience.
    I yield back.
    Chair Nadler. The gentleman yields back.
    Mr. Swalwell?
    Mr. Swalwell. Thank you, Chair, and thank you for holding 
this hearing.
    As we look at the last Administration and the abuses at the 
Department of Justice, it's clear that we had a President and a 
Department that rewarded the President's friends, reducing the 
sentences or issuing pardons for Paul Manafort, Roger Stone, 
Michael Flynn, and then punished and weaponized the Department 
to go after the President's enemies.
    I guess I'll start with Ms. Oberlander, if you would engage 
me on this. Would you agree that Presidents set the tone for a 
country, that how a President engages, whether they're a bully 
or they're compassionate or they're a leader, has a real effect 
on just how everyday Americans can carry themselves?
    Ms. Oberlander. I would. I do think that the attacks on the 
media of the last Administration have had a profound and 
negative effect on how the media is perceived by all Americans. 
I think the cries of, ``fake news'' and the specific attacks on 
particular journalists has really undermined and worked to 
really injure the standing of the press.
    Mr. Swalwell. Ms. Oberlander, you're correct. We've seen at 
the Trump rallies the attacks on the media. We've seen, across 
the country, attacks and violence against journalists. You did 
not know my questions ahead of time.
    Mr. Chair, this is not an advertisement for my violence-
against-journalism bill.
    Ms. Oberlander, my concern, aside from what Donald Trump 
and the Department did--because I have faith that Merrick 
Garland is going to get to the bottom of this and that in 
Congress, we will understand exactly who was responsible.
    To kind of extrapolate what you were saying, the Department 
of Justice is not the only law enforcement agency in America. 
Is that right?
    Ms. Oberlander. I think that's correct, yes.
    Mr. Swalwell. In every State, you have a State Attorney 
General and, of course, county and municipal law enforcement.
    Ms. Oberlander. Yes, you do.
    Mr. Swalwell. Do you fear that if you have a President who 
was willing--who detests accountability and was willing to 
weaponize his own law enforcement agency against his enemies, 
that could have the effect, just as we mentioned earlier with 
the President setting the tone, of governors and mayors seeing 
it as a permission slip to weaponize local law enforcement?
    Ms. Oberlander. Well, I do want to say that the subpoenas 
to the media have been going on across--this is not a partisan 
issue. I mean, we did see that President Obama issued a number 
of--there were more leak investigations than there had ever 
been, and that's continuing--we've had a growth of that.
    So, it's not purely a political issue, but, yes, the 
attacks on the media have had an effect both Federally and at 
local and State jurisdictions.
    If you look at the--there's been a lot of video of how 
media, who were labeled ``Media,'' ``Press,'' et cetera, were 
treated and injured during some of the protests last summer. It 
does feel that, in some cases, they were singled out because 
they were press.
    Mr. Swalwell. To distinguish--because I agree with you; it 
was wrong that the Obama Administration allowed that. Would you 
agree that, while that was an aggressive pursuit of leaks, the 
difference between what we have seen or suspect with the Trump 
Administration is that it was a punitive use of power, meaning 
it was used--the motivation was to go after perceived enemies, 
whereas on the Obama Administration side it seemed it was an 
aggressive use of law enforcement? Wrong, but I think there is 
a distinction.
    Ms. Oberlander. I mean, there is absolutely a distinction 
between the way the Administrations operated. I wouldn't want 
to characterize one motive or the other on that front.
    I will say that there has been--during the Trump 
Administration, we believe that there have been twice as many 
leak investigations opened up as there were in the prior 
Administration.
    Mr. Swalwell. Ms. Oberlander, I don't want anyone to walk 
away from this hearing believing that Members of Congress think 
that they are above the law. If a Member of Congress commits a 
crime or if there's probable cause for a search warrant, he or 
she should have their records subpoenaed or their property 
searched and seized.
    What can we do--aside from additional protections for 
journalists, what can we do for non-journalists, as far as 
additional protections?
    Ms. Oberlander. So--and I completely agree. I will say that 
even the shield laws that we've looked at and all the Attorney 
General guidelines--I do want to point out that, if a 
journalist is suspected of committing a crime not related to 
news gathering, that the crime is not itself growing out of the 
news gathering, then none of these protections apply. The 
government can come after and look for their materials and see 
if--so there has always been an exception, a carve-out, for 
crimes that have nothing to do with news gathering in all of 
that.
    I do think that--for everyone, I do think there should be, 
at the very, very least--and this applies to Members of 
Congress--a duty of candor on the part of the Department that, 
any time they are looking for materials from a Congressperson 
or their staffs or their family and they know whose materials 
they're looking for, they need to tell the third-party provider 
or the service provider of whose information it is.
    Apple has said that they had no way to identify--
essentially, that they didn't know that this was congressional 
staff and families. So, I think there should be a legislative 
obligation to disclose what they know and why they're looking 
for it. Then in the limited, very limited, places where there 
is no notice given, the service provider will be able to make a 
determination of whether that's something that they should be 
objecting to or not.
    Mr. Swalwell. Great.
    I yield back.
    Chair Nadler. The gentleman's time has expired.
    Mr. Johnson?
    Mr. Johnson of Louisiana. Thank you, Mr. Chair.
    I appreciate our Witnesses, but I have to use a few moments 
here to address the elephant in the room. I am here at the 
southern border, La Joya, Texas, participating remotely, 
because we're here with President Trump, with Governor Abbott, 
and about two dozen Members of Congress to highlight the crisis 
here.
    Mr. Chair, I have to say, our Committee, the House 
Judiciary Committee, has jurisdiction, broad jurisdiction, and 
this is the most pressing issue facing the country, and it's 
being totally ignored by the Committee. We have to point that 
out.
    Last night, Mr. Chair, we were on the border until probably 
1:00 or 1:30 in the morning. We watched just droves of migrants 
in caravans coming across the border all night, completely 
undeterred, because the border wall construction was stopped 
there just south of La Joya. There's a big, gaping hole. There 
are many, of course, all across the southeast Texas border.
    We appreciate Vice President Harris finally making a trip 
to El Paso, but that is not where the crisis is at its apex. 
It's here in south Texas, many hundreds of miles south of where 
the Vice President went.
    The House Judiciary Committee has a responsibility to 
address this crisis. We had 180,000-plus encounters at the 
southern border just in May alone. It is a record increase, and 
it is a crisis.
    We saw small children abandoned last night at the border, 
walking across unaccompanied. The Border Patrol--Customs and 
the Border Patrol--Protection--the agents here are so 
frustrated because they can't stop it. All they can do is work 
as processing agents for the cartels who are trafficking humans 
into this country. They take them to a facility. Most of them 
are not COVID-tested. They give them travel arrangements, and 
they're sent into the country to all points, all 50 States 
apparently, with no expectation that they'll be tracked or 
returned at all. This is a humanitarian crisis.
    Oh, by the way, fentanyl seizures are up 934 pounds at the 
southern border alone just in May, a 300-percent increase over 
May of last year. This affects every State in the nation and 
every American, ultimately. It is an outrage. It is a 
dereliction of our duty.
    I'm saying to my colleagues on both sides of the aisle, we 
must address this. The Republicans on our Committee have 
introduced legislation to fix this. I've got a number of bills 
myself to help with the asylum reforms and all the things that 
we know need to be done. But they have been ignored.
    I just want to go on record and use my time this morning to 
say, we will be highlighting this today on the border. We hope 
that the media covers this and shows the American people what's 
going on. I think, very frankly, and I say respectfully, Mr. 
Chair, it is a shame the Judiciary Committee is not doing 
anything about it.
    I will yield back my time, because I'm about to go to the 
border here. We need to talk about this, and we need to have a 
hearing. I yield back.
    Chair Nadler. The gentleman yields back.
    Ms. Jayapal?
    Ms. Jayapal. Thank you, Mr. Chair.
    I hope Mr. Johnson will ask Donald Trump why he separated 
thousands of children from their families. I hope he asks him 
why the Department of Justice under the Trump Administration 
undermined the civil liberties of so many people across the 
country with these secrecy orders.
    I wanted to pick up on, I believe it was, Mr. Cicilline's 
questions about what is needed to get these protection orders. 
I think that this whole process is really quite stunning for 
most Americans, who don't distinguish between what happens to 
their data that's stored and what would happen if they were to 
be in their home and their files were to be seized.
    So, I want to just read from--this is a U.S. Department of 
Justice Office of the Deputy Attorney General memo from October 
19th, 2017. In the footnote, it says, when applying for a 
2705(b) order to accompany a subpoena that is--to accompany a 
subpoena seeking basic subscriber information in an ongoing 
investigation that is not public or known to the subject of the 
investigation, ``stating the reasons for protection from 
disclosure under 2705(b) usually will suffice.''
    It actually just puts a point on--I think every one of you, 
in some way or another, has commented on this. I think, Mr. 
Turley, you were speaking to this as well. It's quite stunning 
to me that there really seems to be no standard at all. So, of 
course, the courts are not going to get any information, 
because the direction is you don't need to provide it.
    So, I'm wondering, on a scale of 1-10, of one being a 
rubber stamp and 10 being a real process that protects our 
civil liberties, our rights, just curious where you would put 
the current standard. We can just go through quickly.
    Mr. Turley?
    Mr. Turley. I put it at a one.
    I really compliment you for highlighting that footnote, 
because it is how it reads. It's basically telling prosecutors, 
``Confine what you say. You don't have to give any details.''
    The Department of Justice benefits from that, right? If you 
can use boilerplate and use it over and over again, then 
judges, when they see it, basically say, ``This is all they 
have to show.'' That's how you get to these high numbers, in 
terms of the use of these devices.
    Ms. Jayapal. Mr. Burt?
    Mr. Burt. I would agree that it's a one.
    While there's that footnote, that same policy, which is the 
one that emanated from our litigation against the Department, 
says that they're supposed to articulate facts. Then when you 
look at the template that the Department of Justice provides to 
the 93 offices around the country that says, here's how to get 
these secrecy orders, it says, ``Just write down this 
boilerplate.''
    So, the actual form template is consistent with the 
footnote, and there's really no meaningful process.
    Ms. Jayapal. Ms. Oberlander?
    Ms. Oberlander. I mean, I don't have a lot of exposure to 
these, only the ones that have been reported. Certainly, for 
the ones that have been reported, one or two, which is pretty 
low.
    Ms. Jayapal. Yeah.
    Ms. Burton?
    Ms. Burton. I'd put it at a zero. I mean, this falls under 
the category of a ham sandwich can be indicted.
    Ms. Jayapal. Right.
    Ms. Burton. This falls into the government calls the shots 
and that's the end of the discussion. That goes to a zero to 
me.
    Mr. Turley. I object. I wasn't given that option when I 
took the test.
    Ms. Jayapal. You stuck to the instructions.
    Now, let's say, Ms. Burton--and I'll just stick with you on 
this one--let's say that the extension is obtained and then the 
very next day the case is dropped because there's not enough--
there's not enough evidence, whatever.
    What happens to the extension? Does the DOJ go back and 
say, ``Oh, actually, we don't need that extension anymore''? 
Can you give us some knowledge about that?
    Ms. Burton. Yeah, we have a case where 15 years ago, very, 
very beginning of cloud computing, it is still a sealed 
proceeding. I mentioned it in my testimony. So, I think this is 
a critical problem. You've got to have a sunset provision at 
the very least.
    Again, if you have Pentagon Paper-type standards before you 
can even enter into this kind of a secrecy order, you aren't 
going to have a big problem. I mean, national security and 
secrecy orders are a very small percentage of what we're 
talking about.
    Ms. Jayapal. Right.
    Ms. Burton. So, I think you would have a sunset and a small 
problem.
    Ms. Jayapal. So, Mr. Burt, I was struck by the data of 
Microsoft receiving 5,500 requests just in the first half of 
2020 and your company turning over basic data to 54 percent of 
the requests. Compare that to The New York Times reporting that 
Apple turned over basic data in 43 percent, Google turned it 
over in 83 percent, Facebook turned it over in between 85-89 
percent.
    It seems to me that we are essentially depending on tech 
companies, in this case, to negotiate the civil rights and 
civil liberties of their users. Why is it that your rates--and 
if Apple were here, I would ask them as well--were so much 
lower? It seems to me you take this very seriously in how you 
move forward with these requests.
    Chair Nadler. The time of the gentlelady has expired. The 
Witness may answer the question.
    Mr. Burt. Yes, well, we do take it very seriously, because 
we think it is our obligation to protect our customer interests 
here and because we do believe this is a First Amendment 
violation, a restriction on our ability to inform our customers 
when the data they trust us to hold securely for them has been 
taken by the government.
    Somewhat in defense of some of my competitive companies, 
you also have to understand that different companies have 
different categories of data. So, we have a lot of what has 
been referred to as ``metadata.'' Often what we get is a 
subpoena for that metadata then accompanied with a privacy or a 
gag order. So, our percentage about how often we provide 
content versus metadata is, in part, a reflection of the volume 
of accounts where we do have metadata, whereas with a social 
media company, for example, that metadata might be less 
interesting to the government. They might be more interested in 
the content of the postings.
    I don't know, because I don't represent them, and I don't 
see the demands that they get. There are possible explanations 
other than just how seriously we do take our obligation.
    Ms. Jayapal. Well, thank you for taking it seriously.
    I yield back, Mr. Chair.
    Chair Nadler. The gentlelady yields back.
    Ms. Scanlon?
    Ms. Scanlon. Thank you, Mr. Chair.
    Thank you to all our Witnesses for speaking today about 
these really important issues surrounding the DOJ's 
extraordinary use of its investigative powers to seize 
materials from members of the press, Members of Congress, and 
their staff and families.
    As a lawyer and someone who's proud to represent 
Philadelphia, I had to note Ms. Oberlander's written testimony 
where she talked about the fundamental values underpinning the 
First Amendment and the uniquely American principle of valuing 
a free press.
    The first strong expression of that principle arose during 
the John Peter Zenger trial, which occurred before the 
Constitution was even written. That case stemmed from Zenger's 
refusal to disclose the sources of articles critical of the 
British Government that he published in his newspaper.
    Of course, it was the brilliant Philadelphia lawyer Andrew 
Hamilton--no relation to Alexander--who represented Zenger in 
that case. Hamilton argued for the critical importance of a 
free press to preserve our liberty by exposing and opposing 
tyrannical power by speaking and writing truth. Those 
principles were written into the Constitution.
    How striking that almost 300 years later we're still 
addressing the same issue. We need to preserve the ability of a 
free press to protect its sources, particularly from a vengeful 
or tyrannical government that's trying to prevent the press 
from speaking and writing truth.
    Now, Mr. Burt mentioned the problem that, when data is 
obtained under a gag order from Microsoft or other platforms, 
they can't raise the Fourth Amendment protections because those 
belong to the individuals whose data is being seized, but then 
we have this catch-22 because they also can't tell those 
individuals that their data's been seized and thereby give them 
the right to assert their Fourth Amendment rights.
    As I understand it, the workaround here that some news 
agencies have been able to implement is that they have 
contractual provisions that require the tech platforms to 
notify them if the government seizes the data. Then the gag 
order extends to the attorneys as well, so we still have those 
problems.
    Do I have that wrong?
    Mr. Burt, you are shaking your head.
    Mr. Burt. Yes. That's not quite right--
    Ms. Scanlon. Okay.
    Mr. Burt. --because the media companies--we do disclose 
when we can. We have customers, including some media companies, 
that have very specific disclosure obligations written in by 
contract. Because, as I pointed out earlier, we don't have an 
obligation to tell our customers when their data has been 
subpoenaed or obtained by a warrant, but we do it as a matter 
of policy. So, some of customers say, ``Well, we want that in 
the contract,'' and we agree to that, but it's always subject 
to the secrecy order.
    So, we can't inform the media companies' outside counsel, 
we can't inform anyone. Even within the company itself, within 
Microsoft, we're restricted as to who can know about some of 
these secrecy orders.
    So, it's not a workaround for this problem. For the press 
to exercise its right to be a free press, they have to know 
when their data is being taken by government. We can't tell 
them, when we have a secrecy order.
    Ms. Scanlon. Okay.
    Ms. Oberlander, you discussed the fact that the construct 
that is being used now creates issues with respect to attorney-
client privilege. Is that right?
    Ms. Oberlander. Yes. I mean, certainly, as when you just 
extend the secrecy order to the in-house counsel and you don't 
let them tell their client, yeah. To their outside counsel, for 
that matter.
    Ms. Scanlon. So, does that impede the free press's ability 
to collect data, et cetera? Who does that impact?
    Ms. Oberlander. So, first, the attorney can't do what 
they're hired to do, which is to give advice to their client. 
In some ways, it's better than nothing, because they can, in 
fact, hire, if they're permitted to, outside counsel, who can 
go and try to make their position known to the government, 
which is what happened with these gag orders that we've been 
talking about. It's very, very limited.
    It also creates--just in terms of the client relationship, 
if your client doesn't think that you're telling them the truth 
or that you know something about their work, then there is a 
level of distrust there that can poison the entire relationship 
going forward.
    Ms. Scanlon. So, it sounds like these processes create a 
corrosive impact upon the whole system.
    Ms. Oberlander. I believe it does, yes.
    Ms. Scanlon. Mr. Turley, you mentioned that the current DOJ 
procedures requires senior DOJ leadership to sign off on these 
secret subpoenas. Is that correct?
    Mr. Turley. Yes, that's correct.
    Ms. Scanlon. As you noted, the three most senior officials 
at the Department of Justice during the relevant time period, 
both former Attorneys General Sessions and Barr and Deputy AG 
Rosenstein, all deny that they signed off on the subpoenas in 
this arena. Is that right?
    Mr. Turley. That's my understanding, yes.
    Ms. Scanlon. So, do you think the process failed, or are 
these answers from those officials disingenuous?
    Mr. Turley. Well, that's the first thing I put in my 
testimony for this Committee to confirm, because it doesn't 
make sense to me--that standard of a high level of approval was 
put in in the 1970s as part of reforms overall. Then, after the 
controversy during the Obama Administration, it was ramped up 
again, it was reaffirmed that you need that type of signoff.
    This is one of those things that, sort of, should make the 
sand balance over in the Department of Justice. I mean, if 
you're coming up with a search that's hitting on journalists or 
Members of Congress, you would think that would go straight to 
the AG's desk. I believe these AGs; they don't have any 
recollection of approving this or being informed of it. That's 
the first thing that I think the Committee needs to determine, 
because if that's true, something seriously went wrong here.
    Ms. Scanlon. Okay. Thank you.
    I see my time has expired, and I yield back.
    Chair Nadler. The gentlelady yields back.
    Ms. Garcia?
    Ms. Garcia. Thank you, Mr. Chair, and thank you for putting 
together this wonderful group of experts to visit with us on 
this very important topic.
    Like many Americans, I was alarmed to learn that, 
reportedly, the Trump Administration seized records, seized 
records from Apple and others, to obtain phone and email 
records belonging to some of our very own colleagues, their 
families, and their staffs. I mean, it was outrageous. Then 
also from news reporters, which, again, is outrageous behavior.
    It appears now from some of the testimony we've heard today 
that, more often than not, gag orders were sought from the 
providers to make sure that they could not alert anyone. To me, 
this is a blatant abuse of power.
    During the House impeachment investigations and trials of 
Donald J. Trump, I constantly reminded my colleagues and all 
Americans that democracy is a gift that each generation gives 
to the next. We must protect that democracy, and we must do all 
that we can to stop this kind of behavior.
    Former President Trump has time and time again placed his 
own personal interests above the American people, and it 
appears that he did that in this case, too. My colleague Mr. 
Swalwell, who looks like he was a target of these attacks, 
mentioned that earlier. It is again looking at and wanting to 
get some of his critics.
    It's evident that our Founding Fathers vested the power in 
Congress for oversight, so I am so glad they we're doing that 
today. Congress and the American people deserve the right to 
know whether these unauthorized disclosures of classified 
information were properly predicated and approved.
    I've said it before, and I'll say it again: Nadie esta por 
encima de la ley. No one is above the law.
    I'd like to start my questions with Ms. Burton.
    Ms. Burton, you mentioned in the three or four things that 
you would seek in reforms, which were--it's just very 
refreshing that it appears to be true; we seem to have a 
consensus even in our Committee that reforms are needed, and it 
looks like we have almost unanimity among the panelists. So, it 
is a rare day for us in Judiciary.
    You talked about safeguards; you talked about transparency. 
If you could wave the magic wand, what would due process look 
like to you to safeguard the First Amendment rights and Fourth 
Amendment rights?
    Ms. Burton. Right. I would make them broader than the First 
Amendment. I'd make them a constitutional right, where you 
would give the court the obligation to look at what the 
government presented, and it had to be very specific, and there 
had to be a compelling reason before anything could be done in 
secret. The minute that showing was not made, a series of other 
protections come in, whereby counsel for the press can come in, 
there's no secrecy order, there's notice, there's no judges.
    I think that it's very important that we have clear, 
articulated standards of what due process means in this case. 
So, for example, I think cloud information should be treated 
the same as file-cabinet information. There's no reason--
    Ms. Garcia. I agree, those have to be separate.
    Ms. Burton. I would put that into the legislation.
    So, I think it's a series of waterfall things that would 
follow, one from another, that would make it a very 
compelling--and problematic for the government on about 95 
percent of the cases that they're now proceeding in secret 
with.
    Ms. Garcia. Well, thank you.
    Mr. Burt, you talked about judicial review, and you also 
talked about limiting the gag orders to 90 days and an 
extension requiring a high standard for any kind of extension.
    What exactly do you have in mind? Do you feel like the 
scrutiny for the extension needs to be the same or even higher 
than the original gag-order application?
    Mr. Burt. Well, I think it's the same standard that needs 
to be applied. It's really a strict scrutiny standard, because 
you're trying to confine the First Amendment rights of the 
cloud provider to inform their customer about what's happening. 
So, you can say, we've set aside that for a 90-day period 
because we have one of these very rare special circumstances 
where that kind of secrecy is required in the national 
interest.
    If a court is convinced of that and then puts the gag order 
in place for 90 days, that should be as long it goes, unless 
government can come back and establish to the same degree, with 
the same degree of strict scrutiny analysis. So, you have to 
come forward with compelling evidence, and you have to show 
that there is no other alternative that can satisfy the 
government's legitimate interest. So, you'd have to reestablish 
that that is necessary for an extension of that 90 days.
    There should definitely not be any lower standard just 
because you got a 90-day gag order. If anything, as you're 
suggesting, perhaps at least the court should be considering, 
really, why do we need another 90 days?
    Ms. Garcia. Thank you.
    Chair Nadler. The gentlelady's time has expired.
    Ms. Dean?
    Ms. Dean. Thank you, Mr. Chair.
    I thank all our talented Witnesses for your expertise and 
advice to us.
    Ms. Oberlander, I'd like to compare and contrast some of 
the things we talked about earlier which has to do with State 
standards as contrasted with Federal standards. Obviously, we 
know where we stand on the Federal standards.
    I come from Pennsylvania, like my friend and colleague 
Representative Scanlon. Our shield law is among the nation's 
strongest. In fact, our State courts have read our State 
legislation to protect as an absolute privilege any information 
which could expose the source's identity.
    Do you believe our State law or other State shield laws 
that are much more effective could be used as a template for us 
here as we craft Federal policy?
    Ms. Oberlander. Well, I do. Pennsylvania does have a good 
shield law. New York, where I live, has a very, very strong 
one, also, an absolute privilege for confidential sources and a 
qualified privilege for nonconfidential material. I absolutely 
think that those both could be models for a Federal shield law.
    I do think that, because you have such a great experiment 
across all the different States, that one of the places where 
the State statutes haven't kept up is on the definition of 
``journalist.''
    So, it really does depend on which State you are looking 
at. A lot of them are--some of them, at least, are tied to the 
fact that you have to get the protections of the statute, you 
have to work for a newspaper. Magazine and digital radio, they 
don't necessarily permit without some challenge. Like, if 
you're an independent journalist now who is running a 
subscription newsletter or somebody--I work with a lot of 
journalists who are professional journalists but they're not 
making any money.
    So, the definition of journalist within that is something 
that you'd have to look at. I wouldn't necessarily say that the 
State statutes are models on that.
    However, in terms of setting aside an absolute privilege 
for confidential sources and the qualified privilege, they are.
    Ms. Dean. That's helpful.
    I'm thinking of my own constituents, journalists in the 
Fourth Congressional District, and I have many. They feel--and 
if maybe you could detail the vulnerability. While they enjoy 
the protection of a State statute, depending upon geography, 
politics, and other factors, they are left vulnerable.
    Can you detail some of that tension?
    Ms. Oberlander. Yes. I'm going to use the example of New 
York again, because that's where I practice.
    If you are a journalist, you've done a terrific 
investigative story, maybe it's malfeasance in New York City 
government--we'll move it outside of Federal--but there is--or 
it's a regular--it doesn't have anything to do with government 
or it's a private malfeasance kind of investigative story, you 
have sources--if you get a subpoena from the New York State 
Supreme Court at 60 Centre Street and they want your 
confidential source information, who's your source, you can go 
in, you can wave the shield law, and you don't have to provide 
your source information. It's an absolute privilege.
    Across the street, in the Federal courthouse, there is a 
different standard. It is a qualified privilege, to the degree 
it exists. You have to go--and there is something. You do have 
to go, and you show that--or the government or whoever is 
looking for the information would have to show that it's highly 
relevant to their lawsuit, that they've tried to get it from 
other places, they haven't, and that the balance of equities 
generally weighs in favor of disclosure, but, as a journalist, 
you may have to disclose your source.
    So, when you're talking, when you're reporting it, when 
you're dealing with your sources, you can't say to them with 
any real certainty, ``I am not going to have to give up your 
identity.'' That creates enormous havoc.
    Ms. Dean. Incredibly dangerous. Thank you for that clear 
description.
    Ms. Burton, it's been, I guess, more than 40 years since 
Congress passed the Privacy Protection Act. Now, we see 
government can go directly to third-party providers to compel 
work product, as opposed to going to the journalists who were 
protected under the act. The PPA is clearly insufficient.
    Knowing the actions of DOJ that have been discussed today, 
how should Congress specifically continue--and I know you've 
offered some, but--continue to strengthen protections offered 
by PPA?
    Ms. Burton. Thank you for the question.
    Of course, the guidelines first came because the Department 
of Justice was end-running constitutional rights. Then, when 
that barrier was not high enough, they went to warrants. 
Warrants were easy to get stamped in a court. Then you, 
Congress, passed the PPA.
    Now, we come to communication providers. I think that the 
legislation that's being considered here, the simpleness of it, 
without a lot of other pieces, but just the simpleness of it to 
put procedures in place, is what's going to be relevant not 
just today, but whatever other forums and venues and technology 
comes in the future. I think it's about process, not about 
anything else.
    So, that's why I would urge us to get this bill passed into 
law quickly.
    Chair Nadler. The gentlelady's time has expired.
    Mr. Stanton?
    Mr. Stanton. Thank you very much, Mr. Chair.
    I want to say thank you to our Witnesses for spending your 
day with us and assisting this Committee in its important work.
    Back in early June, I, like all Americans, was shocked to 
find out the Department of Justice had secretly tried to attain 
email records of multiple reporters in newsrooms like The New 
York Times, The Washington Post, and CNN. It is frustrating to 
me--in fact, it's infuriating, to be frank--that Department of 
Justice, under Presidents of both parties, has led the hunting 
expeditions into the file cabinets of news reporters.
    Journalists and reporters serve a vital function in our 
democracy, working relentlessly to keep our public informed. 
Their work is tough, thankless. Yet, day-in and day-out, they 
do their work. They investigate leads, they find out facts, and 
they tell the stories that need to be told.
    It is freedom of the press that allows the American people 
to learn of the actions of their government, both good and bad, 
to learn of actions like the DOJ secretly surveilling reporters 
and our colleagues here in the halls of Congress. It is freedom 
of the press that allows the American people to stay informed, 
stay safe, to form their own opinions, and to be better 
citizens.
    So now, more than ever, we do need to safeguard the 
protections of the First Amendment, and this Congress must do 
more to ensure reporters can do their their jobs.
    Congress has, in the past, considered a press shield law. 
One issue when drafting such a law is the question that we 
discussed a little bit here today of who should qualify as a 
journalist and what activities deserve added protection.
    We can all point to responsible news organizations and 
journalists who are longstanding institutions of the press, but 
what about those others who may not fit the traditional mold? 
What about an online blog or even someone like Darnella 
Frazier, the courageous young lady that filmed the murder of 
George Floyd and won a Pulitzer Prize special citation because 
of her courageous acts?
    Where do you draw the line about who would be covered by 
such a press shield? I'd open it up to any of the Witnesses to 
answer that question.
    I know, Mr. Turley, you put some of that in your prepared 
testimony.
    Mr. Turley. Yes, I did. My objection to the current 
legislation is that it follows a rather dated definition of 
journalism. It specifies that this has to be part of your 
livelihood. It also notes that you should have a supervisor or 
editor that is overseeing your work.
    The fact is the media has changed dramatically. Today, many 
bloggers perform many of the same functions as reporters. Many 
reporters are looking more like bloggers. They're engaged in 
the internet and social media to a degree that they didn't. So, 
you have this sort of merging.
    You also have what are sometimes called net-newsers. Today, 
polls show that people now mix, as sources of their media, 
internet and traditional sources. In fact, more people get 
their news from social media today than newspapers.
    So, we have to, as we talk about technology changing, we 
also have to update our view of what a journalism is--a 
journalist is. This is not an easy task. I'm not pretending 
that this doesn't have problems. You can't make everyone a 
journalist, because, if that's the case, then journalism means 
nothing. You have to have some way of distinguishing between 
what people do.
    What I have argued is, it should be a focus on what their 
function is, their writing, as opposed to how much they're 
getting paid for it.
    So, Ted Koppel tomorrow could resign from the network and 
be writing the same columns he did today. Would that mean he's 
not a journalist? Under this law, he would not be a journalist, 
because he wouldn't be making any money at it.
    Mr. Stanton. Yeah.
    Mr. Turley. That's obviously something that we don't want 
to have, an inherent flaw, in a shield law.
    Mr. Stanton. I wanted to ask a question--Mr. Burt, you 
raised in your opening testimony the issue of blanket requests. 
This, I guess, is a relatively new phenomenon and obviously 
very frustrating for you and Microsoft. Maybe some of the other 
Witnesses have experienced it as well.
    Can you explain in a little more detail what--talk to us 
about that blanket request, what it is, and how we might be 
able to help you in Congress to fix those blanket requests for 
information.
    Mr. Burt. Yeah. So, a blanket request, like the one we 
received yesterday--and I think there was another one, 
actually, I was informed, that came in today--is a secrecy gag 
order that prevents us from notifying customers not just as to 
a particular subpoena or a particular warrant but to all 
subpoenas, warrants, and orders issued in the course of a 
particular case or investigation.
    What that really highlights is the lack of adequate 
standard to get a secrecy order in the first place. Because 
that standard has to be particular. The government should have 
to show that, for any specific request for data, that they can 
meet the standard, the strict scrutiny standard, necessary to 
impose a gag order.
    To say that you can do that for every request, in even the 
most routine request for information and data, throughout an 
entire investigation just shows how this process is being 
abused.
    Chair Nadler. The time has--
    Mr. Stanton. Thank you so much. I yield back.
    Chair Nadler. The gentleman yields back.
    Ms. McBath?
    Ms. McBath. Thank you, Mr. Chair.
    Thanks each and every one of you for being here this 
afternoon. This is a pretty heavy discussion.
    As Americans, we, the people, give our government a great 
deal of power to protect our national security. These include 
the authority to collect some very sensitive information and to 
keep it secret. We have laws, including criminal penalties, to 
make sure that secrets stay secret when lives are definitely on 
the line.
    What I'm describing is how it's all supposed to work. 
Government actors are given significant power and tools that 
they're supposed to use to keep us safe. They're given the 
weighty responsibility of keeping information so secret so 
nothing gets out that could actually put lives at risk.
    Inevitably, there will be times when classified information 
is leaked to the press. We all know that. In these moments, it 
can be hard to tell a brave whistleblower from an unpatriotic 
criminal. It's often only in the writing of history that we 
actually will be able to say whether or not a leak was in the 
public interest or a serious threat to our national security.
    So, we have a complex set of tools and laws, and, 
ultimately, courts are tasked with getting this careful balance 
just right--the right of pursuing justice, protecting our 
national security, and also protecting the free press that is 
foundational to our democracy.
    So, the question before us is whether that system is really 
working right now, or is it in need of repair?
    So, one element of this system is the shield laws, State 
laws that allow reporters and editors and others to protect 
their sources. At least 40 States and the District of Columbia 
have some form of shield law on the books, including the State 
that I represent, which is Georgia.
    I'm going to direct these questions to either Ms. Burton or 
Ms. Oberlander. Both of you, please, feel free to jump in.
    Do these State laws vary in their approach to providing 
reporters protection from compelled disclosure? Also, to the 
extent that they do vary, has the State-by-State approach 
adequately protected our journalists that have been engaged in 
First Amendment activities?
    Ms. Oberlander. Well, they do vary. As I previously 
mentioned, some States have a qualified privilege for 
everything, where you have to go through some sort of balancing 
test before you can get it. Some States have an absolute 
privilege for--most places don't have an absolute privilege for 
everything--but for confidential sources, they might protect 
that absolutely. There are variations. They do all provide some 
level--well, most of them provide some level of protection.
    The Federal circuits, as well, have different standards. 
Again, it could completely depend on what circuit you're in as 
to what is the standard you have to prove.
    So, all of them--the fact that there are these varying 
standards creates great uncertainty on the part of the 
journalists and of the people who want to provide them 
information.
    To your point about national security, though, and to the 
degree that there is an investigation into some type of leak or 
some other type of national security in that search, it would 
probably be under the Federal--it would probably come out of a 
Federal court, if not always. Then you would be faced with the 
question of which circuit you're in. Again, those standards do 
vary.
    Ms. McBath. Thank you.
    Ms. Burton, did you want to respond?
    Ms. Burton. Yeah. I wanted to respond to your first 
comment, which I think is very important, regarding the 
balancing of national security interests, because we haven't 
really spoken about that.
    The Pentagon Papers case--again, 50 years today--makes 
notice of that, where you had a judge who was told that 
national security would result in the killing of many troops. 
He took a very strong look at all the information and then 
determined that, while he couldn't be sure, that he had to 
balance against other rights, which in this instance were the 
press rights.
    So, that balancing and courts that really look at these 
things carefully, whether it is in the shield law or national 
security, that's kind of the best you can get. There's lots of 
fact. There is a patchwork of statutes. We have to rely on the 
judiciary to do their job properly and we have to require of 
them.
    So, I would say, on the State shield laws, we use a Federal 
privilege on that, and I think that's the way in which we'd 
begin to smooth it. Every State is different and it's very much 
a patchwork at this point.
    Ms. McBath. Thank you so much.
    I'm about out of time, but I want to thank both of you for 
really giving us good, detailed answers for these questions.
    I yield back the balance of my time.
    Chair Nadler. The gentlelady yields back.
    Ms. Escobar.
    Ms. Escobar. Thank you, Mr. Chair.
    Many thanks to our panelists for being here today and for 
helping educate the Committee and the public about what's at 
stake.
    As we continue to read more information, I hope no more 
information emerges that there were more Members of Congress, 
more members of the public, more members of the media whose 
privacy was violated.
    As we may possibly hear more of that, I think it's 
critically important that the public sees that we take action, 
and that we're responsive to their right to privacy, and that 
we are a country that honors freedom of speech and that honors, 
in many ways, the press.
    So, Ms. Oberlander, I'm going to have a couple of questions 
for you.
    I have to respond, as the only Member on this Committee 
from the border, and who represents a border community, I have 
to respond to one of my colleagues who has chosen not to govern 
on this important issue today and has instead chosen to 
participate in the Donald Trump, Greg Abbott circus that is 
happening in my State, in south Texas.
    For the record, and just so that my colleague know, for the 
record, apprehensions--or encounters rather--of migrants are 
actually down this year when compared to 2019. May 2021 versus 
May 2019, numbers of encounters are actually down.
    I think what we're going to see on the floor today and 
tomorrow probably will be an absence of many of our Republican 
colleagues, who have chosen to abandon their job here in 
Washington, DC, in an effort to participate in a political 
stunt.
    Back to the topic at hand. Actually, Ms. Oberlander, in 
some ways this conversation about the border for me speaks to 
the importance of protecting the Fourth Estate.
    During the last four years, during the Trump years, much of 
what we learned about what was happening in the immigration 
space, in terms of family separation, in terms of some of the 
cruelest, most abhorrent anti-immigrant public policy of our 
generation, we learned through the media.
    I served in Congress, was sworn in in 2019, and much of the 
information that I gained, even as a Member of Congress, came 
from the media and came from courageous journalists who had 
cultivated sources who were shocked by what was going on around 
them and who were willing to shine a bright light on policy 
that America deserved to know.
    From my perspective, I've been vocal about the Biden 
Administration continuing to empower the government in the same 
way, although I do want to recognize that the President has 
made some really important statements. Our DOJ is in some ways 
still engaging in the same way.
    Because you work with journalists and publications, can you 
tell the public what we risk if we continue to go down this 
road, their access to information, what you've seen, and what 
lies ahead?
    Ms. Oberlander. Thank you, Congresswoman.
    Yes, I think that if there are limitations placed on 
journalists or that there is a fear that their confidential 
sources and their work product is going to be accessed 
inappropriately, outside the rule of law, then you will see a 
real diminution in the flow of information. You really will. 
People will not agree to be--they will not come forward as 
sources of information.
    For example, around the border you had sources within the 
government who were saying, ``These are the policies, this is 
what I'm seeing.'' You also had sources, you also had the 
individuals who were affected by these policies, who really had 
the--ran the risk of retaliation, of being deported. Yet, they 
were willing to come forward and say, ``Listen, I am being 
placed here. I am not able to make a living wage. My children 
have been separated.'' Many of them were afraid of being 
identified and being deported.
    So, what happens then is, if they don't come forward, the 
entire public loses that information. We all miss the things 
that we would like to know to make our decisions, to decide who 
to elect, how to govern. It is a real diminution of the 
information available to the public.
    Ms. Escobar. It absolutely is. That's why we have to take 
action. I'm glad to see that there's bipartisan support for 
that. Look forward to working on the recommendations from this 
panel.
    Thank you, Mr. Chair. I yield back.
    Chair Nadler. The gentlelady yields back.
    Mr. Jones.
    I'm sorry, Ms. Ross.
    Ms. Ross. Thank you, Mr. Chair.
    Thank you to the Witnesses for your insights and for your 
patience. I'm second to last, so if you were wondering when you 
were going to have lunch, it's coming soon.
    As a State legislator, I worked to promote transparency and 
responsible governance in my State of North Carolina. As a 
civil rights attorney, I've worked on both Fourth Amendment and 
First Amendment issues, and done a lot of work with the Press 
Association and to prevent State agencies and law enforcement 
from conducting unlawful searches. So, this is a very, very 
interesting topic for me.
    Your testimonies highlight the abuse of prosecutorial 
discretion and do pose important questions about how we can act 
to fulfill our duty to preserve democracy and a robust free 
press.
    Unchecked prosecutorial power poses concern for all 
Americans, regardless of their political perspective. It's 
important that we usher in procedural and normative shifts that 
will emphasize responsibility with regard to prosecutorial 
discretion and secrecy orders on the part of law enforcement.
    Freedom of the press and government accountability are the 
bedrocks of our democracy. This Committee has the 
responsibility to address and mitigate the potential for 
prosecutorial abuse and its actual overreach.
    My first question is about business, Mr. Burt, and it seems 
like business has been unduly burdened by doing the 
government's work.
    So, I'd like to ask you what the incentives for service 
providers like Microsoft are to challenge legal demands issued 
by law enforcement agencies when they are legally deficient. 
You are getting a lot of these requests. Why are you resisting 
it as much as you are?
    Mr. Burt. Well, my title actually is Corporate Vice 
President for Customer Security and Trust. I mention that 
because a lot of the work that I do with my organization is 
designed specifically to try to ensure that our customers can 
trust us with their data and their information and with their 
transformation to a new digital world.
    So, it's very important to Microsoft as a company that our 
customers know that in these instances where we are subject to 
gag orders and we can't even tell them that their data is being 
demanded by government, that we will ensure that we only 
respond when those requests are truly valid and legal, and that 
even then we will challenge those, whenever we have a 
sufficient basis to challenge those requests we will challenge 
them if we can, and to try to limit the scope of these secrecy 
orders.
    What we've learned is that litigation just isn't a 
sufficient tool. The volume's too high, the abuse is too great, 
and we really need legislative reform.
    Ms. Ross. Can you just remind the Committee about the 
business burden here? How many people hours? How much money 
does it cost you every year to deal with many of these 
illegitimate requests?
    Mr. Burt. I don't actually have those numbers. We could 
provide those later to specifically address that.
    We have a very large team that responds to lawful access 
requests. Globally, it's more than 60,000 a year. As we 
mentioned in our testimony, there are seven to ten of these 
secrecy gag orders that we get every day and we have to review 
those for their sufficiency.
    We've litigated, eight or nine cases, and each one of those 
litigations is expensive, and we have made progress through 
that litigation.
    It is a burden to have to manage this all because 
government isn't doing its job in an appropriate way.
    Ms. Ross. Thank you. I look forward to getting that follow-
up information.
    This next question is a follow-up on the definition of who 
the press is, if we pursue the shield laws.
    Ms. Oberlander and Ms. Burton, we've heard from Mr. Turley 
about this, but do you have anything to add? Because I fear 
that that might be a place where it gets a little thorny for 
the Committee.
    Ms. Oberlander. I mean, I agree with Mr. Turley. I believe 
that you should look not at who somebody works for, but at what 
activities they are engaged in, and are they regularly 
producing or writing or photographing or editing or involved 
with those people in putting news out of local, national, 
State, international importance to the public. It could be a 
small public. It could be a large public. I would look at that.
    Then, around the edges, whatever definition you come up 
with, there will be questions. I think that then there have 
always been questions. I think that will be something that a 
court will have to look at the statute and say, ``Well, does 
this person fall under it or do they not?''
    So, I would hope that the definition of journalist doesn't 
tie us up from not getting a shield law.
    Chair Nadler. The time of the gentlelady has expired.
    Mr. Jones.
    Mr. Jones. Well, thank you, Mr. Chair, for convening the 
full Judiciary Committee today to examine what we can do to 
prevent abuses like the Trump Administration's secret seizures 
of data from the accounts of Intelligence Committee Chair 
Schiff, Representative Swalwell, and numerous journalists.
    Let me be clear about something: The Department must act 
faster to investigate, expose, and end these abuses. It is long 
past time for this Department of Justice to right the wrongs of 
the last one.
    I worked for the Justice Department early in the Obama 
Administration, and I understand that the integrity of the 
Department is important. That is exactly why this Justice 
Department's reluctance to make a clean break from its 
predecessors' misdeeds is so misplaced.
    The way to restore the Department's integrity is to 
repudiate the notion that the DOJ was Donald Trump's personal 
attorney, not to continue to provide him and his policies pro 
bono defense.
    The Trump Administration may not have been the only 
Administration in our nation's history to engage in these 
abuses--in fact, that is well established--but it must be the 
last.
    So, I look forward to working with everyone, on a 
bipartisan basis, for bipartisan legislative solutions to the 
challenges that we face.
    I want to focus in on something that a number of Witnesses 
mentioned earlier.
    From what has been reported over the last few weeks, 
secrecy orders, in particular, have prevented the counsels of 
the targeted media companies from sharing information with 
their clients. Clearly, these orders strain the rules of 
professional responsibility and attorney-client privilege.
    Ms. Oberlander, you touched on this earlier in your 
exchange with Ms. Scanlon, but I'd like to give you an 
opportunity to elaborate. Is there anything you'd like to add 
about this problem?
    Ms. Oberlander. Well, I mean, I do want to say that letting 
somebody at the media organization know about the attempt to 
get their material is better than not letting anybody know 
about it. So, the answer is not to not tell them.
    It really does create a very, very difficult place for the 
attorneys. I mean, it creates problems with their relationship 
with their client. Corporately, if it is a corporate issue, it 
creates issues with when you can't tell the CEO, or the boss, 
or the chief editor.
    It's really--it's just untenable, frankly. It's not a 
solution to the secrecy orders to tell just one lawyer and gag 
them from telling anybody else.
    It also is, frankly, a prior restraint and really should be 
looked at, like my colleagues have said, under the strictest 
scrutiny. If you can't stop The New York Times from publishing 
the Pentagon Papers, you should have the same standard before 
you limit their lawyer from telling the other journalists about 
the request.
    Mr. Jones. Ms. Burton, what is your perspective on how 
these secrecy orders directed at the attorneys who represent 
journalists and media organizations can threaten or compromise 
the attorney-client relationship?
    Ms. Burton. Thank you for the question.
    I think that a statute that you are all getting closer to 
drafting here would create a separate cause of action to 
immediately go into a court to vacate that proposed order 
before the attorney is gagged.
    I have to say that I'm not sure I agree with Ms. Oberlander 
that it's better that someone in the organization knows. It is 
so corrosive when that occurs.
    So, I would statutorily have a separate cause of action 
that would give the attorney and the business side of that 
operation the opportunity to challenge it.
    Mr. Jones. Thanks so much.
    I just want to string together a few basic but vital 
concepts from the course of this hearing.
    Ms. Oberlander, there is no exception to the First 
Amendment for legal organizations, right?
    Ms. Oberlander. No.
    Mr. Jones. Nothing in the Constitution exempts leak 
investigations from the Fourth Amendment's protections against 
unreasonable searches and seizures, correct?
    Ms. Oberlander. That's what I believe.
    Mr. Jones. That's what I learned as well.
    Finally, nothing in the Constitution exempts leak 
investigations from the Fifth Amendment's guarantee of due 
process, correct?
    Ms. Oberlander. That's right.
    Mr. Jones. So, as far as our constitutional rights are 
concerned, a leak investigation is like any other. Yet, from 
what we have heard today, what passes for due process in these 
matters is anything but.
    I just want to ask a series of questions on notice.
    Mr. Burt, I just want to review the notice process with 
you.
    When a subpoena is issued for someone's data to a third-
party email or cloud provider like Microsoft and a secrecy 
order is imposed, the person whose data is seized is not 
notified in way about the subpoena, correct?
    Mr. Burt. That's correct.
    Mr. Jones. That secrecy order might extend indefinitely, 
correct?
    Mr. Burt. Unfortunately, that's true.
    Mr. Jones. How about when a secrecy order with a limited 
span does expire? Even then, at the expiration date, the law 
doesn't guarantee any notice to the person whose data the 
government has seized, correct?
    Mr. Burt. That's correct. There's no requirement the 
government notify. We always do once the secrecy order has 
expired.
    Mr. Jones. Even when there was no conceivable risk at that 
point that notifying the recipient could interfere with an open 
investigation or delay a trial?
    Mr. Burt. That's right. There is no practice--
    Chair Nadler. The gentleman's time has expired. The Witness 
may answer the question.
    Mr. Jones. Thank you, Mr. Chair. I yield back.
    Chair Nadler. The gentleman yields back.
    Ms. Bush.
    Ms. Bush. St. Louis and I thank you, Chair Nadler, for 
convening this hearing.
    The secrecy surrounding the issuance of the electronic 
surveillance and accompanying gag orders is deeply concerning 
and in many ways every actor is implicated--from the Department 
of Justice, which in this case has abdicated its role to uphold 
constitutional protections, to the private companies that 
follow the Department's orders without any transparency, to the 
legislators who have thrown their hands up and allowed the DOJ 
to transgress without any accountability and transparency.
    While it is shocking to hear that the DOJ was engaging in 
such surveillance practices against government officials, their 
staffers, and their families, it is not an anomaly. As a 
protester and activist, I know firsthand how invasive law 
enforcement surveillance can be.
    It's for this reason that I have been vocal in my 
opposition to DOJ's blanket ability to surveil all Americans, 
especially Black and Brown protesters who have been sounding 
the alarm on this issue.
    The Department's ability to surveil Americans exercising 
their First Amendment right to protest has built the 
infrastructure that has now allowed the department to surveil 
Members of this body.
    Companies like Apple and others are then left to hand over 
the records at their disposal, betraying the trust of the 
people who use their products.
    In this instance, Apple complied with the DOJ, 
demonstrating the thorny position of tech companies balancing 
their customers' private online activity with legitimate 
requests from this country's chief law enforcement agency.
    Mr. Burt, it has been reported that some data hosts or 
providers have challenged the government's electronic 
surveillance orders and the gag orders. However, the companies' 
ability to challenge the orders is limited and it is not 
assured.
    Mr. Burt, how does the abuse of secrecy orders affect 
investigations against Black and Brown communities?
    Mr. Burt. Well, I think, as you point out, you always have 
to be aware of the fact that government, as a majority 
institution, can sometimes disproportionately affect those in 
minority positions or who have less representation.
    Therefore, our Constitution and the constitutional rights 
on which our country is founded are designed to protect those 
minority interests and those minority rights especially.
    That's why, when you have a law enforcement agency that's 
able to act secretly, without creating the adequate record to 
be able to challenge and review those secrecy orders and 
understand the basis for them and to ensure that they're only 
issued when absolutely essential in the national interest, 
there is almost certainly going to be disproportionate impact 
of that secrecy.
    Ms. Bush. Thank you.
    Can you tell me, how do you decide which orders to 
challenge?
    Mr. Burt. Unfortunately, in most cases we don't know 
enough, because we are provided so little information, we don't 
know enough to even know when we have an opportunity to 
challenge.
    We challenge those that on their face are inadequate or 
clearly not legal, and in most cases, we find prosecutors then 
agree and withdraw that. That's a big percentage that we 
challenge. We also challenge those that for other reasons we 
think we can negotiate a different approach by the law 
enforcement agency.
    Then we have to look at those relatively rare instances 
when we know enough, or we can discern enough to know that we 
have a factual basis for litigating the scope of a secrecy 
order. That, unfortunately, is too rare.
    That's another reason why deferring this to the private 
sector, to the cloud providers, is not a workable solution. 
It's why we need to have a legislative solution that creates a 
greater burden on law enforcement and imposes on the judiciary 
the obligation to ensure that appropriate standards are met and 
a record of that is maintained.
    Ms. Bush. Okay. So, also considering the sheer volume of 
orders a provider like Microsoft can see, how burdensome is it 
to require providers to determine if and when each order merits 
a challenge? Like, tell us about that.
    Mr. Burt. Well, I was asked that question earlier and I 
don't have specific data that I can provide about the nature of 
that burden.
    We take it very seriously. We have a very large team that's 
devoted to this effort and it is constantly looking at how we 
can best protect our customers' rights and interests. So, it's 
a significant investment by Microsoft in doing this work.
    I think the point for the Committee, though, is not about 
the burden on Microsoft. No one is going to be too sympathetic 
to the fact that my company has to spend money on this problem.
    The problem is you should not be deferring to the private 
sector that responsibility, because it could vary from company 
to company how seriously they take this. We have only limited-
visibility and limited-legal rights to challenge these secrecy 
orders.
    We explore those rights as much as we can. You can't count 
on every provider doing that to the same degree or to the same 
extent. That's not where enforceability of these important 
rights should rest.
    Chair Nadler. The gentlelady's time has expired.
    This concludes today's hearing. Thank you to our 
distinguished Witnesses for participating.
    Without objection, all Members will have five legislative 
days to submit additional written questions for the Witnesses 
or additional materials for the record.
    Without objection, the hearing is adjourned.
    [Whereupon, at 1:32 p.m., the Committee was adjourned.]

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