[House Hearing, 118 Congress]
[From the U.S. Government Publishing Office]


                          FIXING FISA, PART II

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

                                HEARING

                               BEFORE THE

                  SUBCOMMITTEE ON CRIME AND FEDERAL 
                        GOVERNMENT SURVEILLANCE

                                 OF THE

                       COMMITTEE ON THE JUDICIARY

                     U.S. HOUSE OF REPRESENTATIVES

                    ONE HUNDRED EIGHTEENTH CONGRESS

                             FIRST SESSION

                               __________

                         FRIDAY, JULY 14, 2023

                               __________

                           Serial No. 118-35

                               __________

         Printed for the use of the Committee on the Judiciary
         
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               Available via: http://judiciary.house.gov
               
                               __________

                                
                    U.S. GOVERNMENT PUBLISHING OFFICE                    
53-045                       WASHINGTON : 2023                    
          
-----------------------------------------------------------------------------------                    
               
                       COMMITTEE ON THE JUDICIARY

                        JIM JORDAN, Ohio, Chair

DARRELL ISSA, California             JERROLD NADLER, New York, Ranking 
KEN BUCK, Colorado                       Member
MATT GAETZ, Florida                  ZOE LOFGREN, California
MIKE JOHNSON, Louisiana              SHEILA JACKSON LEE, Texas
ANDY BIGGS, Arizona                  STEVE COHEN, Tennessee
TOM McCLINTOCK, California           HENRY C. ``HANK'' JOHNSON, Jr., 
TOM TIFFANY, Wisconsin                   Georgia
THOMAS MASSIE, Kentucky              ADAM SCHIFF, California
CHIP ROY, Texas                      ERIC SWALWELL, California
DAN BISHOP, North Carolina           TED LIEU, California
VICTORIA SPARTZ, Indiana             PRAMILA JAYAPAL, Washington
SCOTT FITZGERALD, Wisconsin          J. LUIS CORREA, California
CLIFF BENTZ, Oregon                  MARY GAY SCANLON, Pennsylvania
BEN CLINE, Virginia                  JOE NEGUSE, Colorado
LANCE GOODEN, Texas                  LUCY McBATH, Georgia
JEFF VAN DREW, New Jersey            MADELEINE DEAN, Pennsylvania
TROY NEHLS, Texas                    VERONICA ESCOBAR, Texas
BARRY MOORE, Alabama                 DEBORAH ROSS, North Carolina
KEVIN KILEY, California              CORI BUSH, Missouri
HARRIET HAGEMAN, Wyoming             GLENN IVEY, Maryland
NATHANIEL MORAN, Texas               BECCA BALINT, Vermont
LAUREL LEE, Florida
WESLEY HUNT, Texas
RUSSELL FRY, South Carolina
                                 ------                                

                   SUBCOMMITTEE ON CRIME AND FEDERAL
                        GOVERNMENT SURVEILLANCE

                       ANDY BIGGS, Arizona, Chair

MATT GAETZ, Florida                  SHEILA JACKSON LEE, Texas, Ranking 
TOM TIFFANY, Wisconsin                   Member
TROY NEHLS, Texas                    LUCY McBATH, Georgia
BARRY MOORE, Alabama                 MADELEINE DEAN, Pennsylvania
KEVIN KILEY, California              CORI BUSH, Missouri
LAUREL LEE, Florida                  STEVE COHEN, Tennessee
RUSSELL FRY, South Carolina          HENRY C. ``HANK'' JOHNSON, Jr., 
                                         Georgia

               CHRISTOPHER HIXON, Majority Staff Director
          AMY RUTKIN, Minority Staff Director & Chief of Staff
                            
                            
                            C O N T E N T S

                              ----------                              

                         Friday, July 14, 2023

                                                                   Page

                           OPENING STATEMENTS

The Honorable Andy Biggs, Chair of the Subcommittee on Crime and 
  Federal Government Surveillance from the State of Arizona......     1
The Honorable Sheila Jackson Lee, Ranking Member of the 
  Subcommittee on Crime and Federal Government Surveillance from 
  the State of Texas.............................................     3
The Honorable Jerrold Nadler, Ranking Member of the Committee on 
  the Judiciary from the State of New York.......................     5

                               WITNESSES

Jonathan Turley, Professor, George Washington University Law 
  School
  Oral Testimony.................................................     8
  Prepared Testimony.............................................    10
Philip G. Kiko, Principal, William & Jensen
  Oral Testimony.................................................    21
  Prepared Testimony.............................................    23
Elizabeth Goitein, Senior Director, Liberty & National Security 
  Program, Brennan Center for Justice
  Oral Testimony.................................................    35
  Prepared Testimony.............................................    37
Gene Schaerr, General Counsel, Project for Privacy and 
  Surveillance Accountability
  Oral Testimony.................................................    80
  Prepared Testimony.............................................    82

          LETTERS, STATEMENTS, ETC. SUBMITTED FOR THE HEARING

All materials submitted for the record by the Subcommittee on 
  Crime and Federal Government Surveillance are listed below.....   107

Materials submitted by the Honorable Sheila Jackson Lee, Ranking 
  Member of the Subcommittee on Crime and Federal Government 
  Surveillance from the State of Texas, for the record
    An article entitled, ``Bipartisan Coalition Responds to the 
        FBI's New Policies Under Foreign Intelligence 
        Surveillance Authority.'' Jun. 13, 2023, Brennan Center 
        for Justice
    An article entitled, ``Epic Coalition: New FBI Procedures 
        under FISA under Section 702 `Out of Touch' with Extent 
        of Abuse and Gravity of Privacy Threat,'' Jul. 13, 2023, 
        epic.org

                                APPENDIX

Statement submitted by the Honorable Sheila Jackson Lee, Ranking 
  Member of the Subcommittee on Crime and Federal Government 
  Surveillance from the State of Texas, for the record

 
                          FIXING FISA, PART II

                              ----------                              


                         Friday, July 14, 2023

                        House of Representatives

       Subcommittee on Crime and Federal Government Surveillance

                       Committee on the Judiciary

                             Washington, DC

    The Subcommittee met, pursuant to notice, at 9:17 a.m., in 
Room 2141, Rayburn House Office Building, the Hon. Andy Biggs 
[Chair of the Subcommittee] presiding.
    Present: Representatives Biggs, Gaetz, Tiffany, Nehls, 
Moore, Kiley, Lee, Fry, Jackson Lee, Nadler, Dean, and Johnson 
of Georgia.
    Mr. Biggs. Good morning.
    The Subcommittee will come to order. Without objection, the 
Chair is authorized to declare a recess at any time.
    We welcome everyone to today's hearing on the Foreign 
Intelligence Surveillance Act, FISA.
    I will now recognize myself for an opening statement. 
Again, I welcome my colleagues. Thank you for being here. We're 
trying to beat a vote time. So, we want to get as much done as 
we possibly can before that is called. If we're not finished, 
I'll let you know that we're planning on coming back following 
the vote series if we still are engaged here.
    I thank our witnesses very much for being here. Appreciate 
you being here as well.
    Congress enacted the Foreign Intelligence Surveillance Act 
in 1978 in response to revelations that the Federal Government 
had seriously abused warrantless surveillance resulting in 
rampant privacy violations. Forty-five years later the same 
remains true. Despite efforts to rein in these abuses, the 
Federal Government continues to use its powers to illegally spy 
on American citizens. The Federal Government uses your tax 
dollars to spy on you using a law called the Foreign 
Intelligence Surveillance Act or FISA.
    In 2019, Inspector General Michael Horowitz exposed the 
extent to which the FBI violated its authorities under FISA. IG 
Horowitz identified significant concerns and serious 
performance failures, including numerous factual misstatements 
and omissions in the FBI's unjustified investigation of Trump 
campaign associates.
    In 29 applications that the FBI made to the FISA Court to 
authorize surveillance, IG Horowitz found, in 25 of them, there 
was unsupported, uncorroborated, or inconsistent information, 
totaling more than 200 instances where the applications were 
inaccurate, unsupported, or omitted information.
    The FBI was unable to even locate the Woods File and in--
let's see. Yes, for the other four applications, so, of the 29, 
couldn't even find four Woods Files and found over 400 
instances of noncompliance with Woods Procedures across the 29 
applications sample.
    In February 2020, Director Wray testified before this 
Committee and told the American people that they should not, 
quote, ``lose any sleep over the vast majority of FISA 
applications.''
    Former Director Comey labeled FISA a top tier FBI program. 
On further review by the Inspector General, it was revealed 
that the FBI failed to recognize the significant risk posed by 
the systemic noncompliance with the Woods Procedures, which 
provide the factual justification for FISA applications.
    In May of this year, Special Counsel John Durham released 
his report on the FBI's Crossfire Hurricane investigation. That 
report not only backed up Inspector General Horowitz' findings 
but also found that political and confirmation bias by FBI 
employees led the FBI to lie to the Foreign Intelligence 
Surveillance Court and illegally spy on the Trump campaign for 
an entire year.
    In the recent investigation of Special Counsel Durham, he 
found that some FISA applications ultimately arose from sources 
close with the Kremlin who were known to be targets of ongoing 
U.S. investigations related to fraud and espionage. Durham 
concluded that the FBI ran with the first justifications found 
to spy on the Trump campaign despite clear indications of 
foreign unreliable sourcing. These reports detail only a 
fraction of the government's abuses of the FISA program.
    At the end of this year, Section 702 of FISA will expire. 
Section 702 does not require a warrant or any other 
justification to an independent arbiter such as a judge or 
magistrate before the government agent can query databases 
about an individual who is a U.S. citizen.
    Reports in recent years have exposed the government's and 
specifically the FBI's abuse of this program. The law designed 
to provide tools to collect foreign intelligence and prevent 
terrorist attacks has been worked into a domestic spy tool that 
has been used millions of times over the past three years to 
target Americans.
    In 2021, the FBI queried the communications of over 3.3 
million--communications more than 3.3 million times and of more 
than one million discrete U.S. citizens. In 2022, the FBI 
conducted thousands of U.S. person queries.
    A recent FISA Court opinion revealed that the FBI conducted 
more than 278,000 improper searches of U.S. persons' 
communications in 2022, including those of people who attended 
protests, 19,000 donors to a Congressional campaign, and, in 
another instance, the FBI looked at the communications of those 
very donors. Think about that. Nineteen thousand people on a 
donor list were being queried and looked at by the FBI simply 
because they did donate.
    As Congress considers whether to reauthorize this program, 
this Committee will be at the forefront and has the opportunity 
to shed a light on the broad issue of warrantless mass 
surveillance in violation of the Fourth Amendment. We must 
consider whether FISA and Section 702 can be reformed or if 
it's beyond repair.
    I, for one, see no reason for Members on either side of the 
aisle to trust the FBI with this tool. The FBI has used FISA, 
specifically Section 702, to spy on Americans to violate the 
Fourth Amendment and conduct warrantless searches.
    FISA Section 702--let's see here. It's clear that the 
government is using communications acquired through this 
program to conduct backdoor searches, which I think we'll hear 
more about today. Most of this is done without a warrant. 
Section 702 information acquired without a warrant can later be 
used by the FBI in criminal prosecutions unrelated to foreign 
intelligence or national security. The FBI has misused 
privileged spying powers to conduct rogue surveillance on 
innocent Americans, and we cannot allow that to continue.
    I've called for serious reforms or full repeal of FISA for 
years. I think it is built on a dubious Constitutional 
foundation. The FBI has used this tool designed for foreign 
surveillance to spy on Congressional donors, January 6th 
protestors, Black Lives Matter protestors, and even elected 
officials, including one of our own Congressional colleagues. 
We must end those warrantless--we must end warrantless 
surveillance of Americans and hold accountable any Federal 
official who violates the civil liberties of Americans.
    Make no mistake, actors within the FBI and other similar 
Federal agencies who continue to conduct unlawful and 
unconstitutional surveillance of Americans should be brought to 
justice. Some argue that these are no more invasive than a 
stop-and-frisk Terry stop, but at least in a stop-and-frisk, 
you have personal contact and actual communication between the 
target and the government agent. I suggest that even a 702 
query is more akin to a wiretap, which requires a warrant 
before executing that query, that wiretap. The FBI claim now is 
that it's OK because it has put in place new protocols and new 
software. Unlike a warrant, all the FBI measures rest 
ultimately on post-action review, and it's not by an 
independent arbiter.
    I continue to believe that we will be able to work across 
the aisle with our colleagues because so many of us agree on 
this issue, and I extend my hand to them and look forward to 
working with Ranking Member Jackson Lee and other Members of 
this Committee as we confront this serious issue.
    Again, I thank those on the panel for being here today. I 
thank our witnesses and those in the audience.
    I yield back and now recognize the Ranking Member, Ms. 
Jackson Lee, for an opening statement.
    Ms. Jackson Lee. Mr. Chair, thank you so very much. I am 
very pleased to join you in convening today's hearing on the 
Foreign Intelligence Surveillance Act, or FISA.
    As I indicated during Part I of our examination of FISA, 
this Subcommittee has a critical role to play in the 
reauthorization of Section 702, which expires in less than six 
months.
    Let me acknowledge all my colleagues that are present here 
today, in particular Ranking Member Nadler. The two of us may 
be the only ones present that were here when the Judiciary 
Committee single-handedly had to put a pause on the PATRIOT Act 
and begin to address some of our concerns after 9/11. Even in 
that dastardly devastating loss of life, it was important to 
recognize that we are a Nation of laws and the Constitution and 
to be able to respond at that time.
    I know that the thousands of agents across America have as 
their general premise to investigate crimes as FBI agents and 
to follow the law and to protect the American people. That I 
will acknowledge. We had the opportunity to be briefed just a 
few days ago by members of the FBI, and I will acknowledge that 
there is a critical understanding of the challenges that we are 
now facing. Congress is the arbiter of the Constitution and the 
responder to the American people and the protector of the 
American people's Constitutional rights.
    With that in mind, this vital set of provisions under 
Section 702, which has been the subject of much scrutiny and 
criticism, permits the Federal Government to collect foreign 
intelligence targeting non-U.S. persons outside of the United 
States without obtaining individualized orders. It is, of 
course, a unique provision.
    While I expect that today's witnesses will discuss many of 
those criticisms, I hope that we're able to have a constructive 
conversation about the ways in which Congress can make certain 
that U.S. persons are not ensnared in the web of international 
surveillance. I will look forward to their insight because we 
will act. Congress must act. Beginning with the Foreign 
Intelligence Surveillance Act, which first passed more than 30 
years ago, to address abuses in collecting and using foreign 
and domestic intelligence, the government must show not only 
that there is probable cause to believe the target of 
intelligence surveillance is an agent of a foreign power, but 
also that foreign intelligence gathering is a primary purpose 
of the collection.
    Following the 9/11 attack and significant advancements in 
technology, the foreign intelligence gathering needs of the 
country shifted considerably yet were often stymied by the need 
to obtain individual FISA Court orders for overseas 
surveillance, which requires substantial manpower, as presented 
to Congress by law enforcement.
    In response, Congress passed the FISA Amendment Act, FAA, 
of 2008 that authorized the Federal Government to collect 
massive amounts of information through the targeted 
surveillance of foreign persons reasonably believed to be 
outside of the United States without a warrant. Congress has 
granted agencies within the U.S. intelligence community this 
authority through FISA and Section 702 so that they may gather 
foreign intelligence information to seek out, pursue threats 
from foreign terrorists and Nation-states that mean to harm us.
    Together these statutes have been vital to the protection 
and safety of Americans. However, as we consider 
reauthorization of Section 702, we must be certain that we are 
not conceding, very clear, the Constitutional rights of 
Americans in the name of national security. That is what makes 
America unique. That is what is the grounding of the 
Constitutional pillars that are our definition. FAA requires 
intelligence agencies to design targeting procedures to limit 
the scope of collection before the government acts and 
minimization procedures to limit the use of information about 
U.S. persons after the government incidentally collects that 
information.
    The Foreign Intelligence Surveillance Court reviews these 
procedures for legal sufficiency. Although the statute includes 
protections for U.S. persons whose information is inadvertently 
collected but not constitutionally subject to targeting, we 
know that the NSA and DOJ have repeatedly reported the 
unauthorized use of backdoor searches of the 702 databases. As 
a release from The Brennan Center pointed out, internal 
oversight measures hailed as robust failed to prevent flagrant 
abuses, including 133 warrantless searches aimed as Black Lives 
Matter protestors and 19,000 searches for communications to a 
single Congressional campaign.
    We're also faced with considering what guardrails are 
appropriate to prevent Federal agencies from evading the legal 
protections of Americans' privacy by purchasing data from data 
brokers.
    These and other problems with FISA and Section 702 have led 
several of my colleagues, particularly Chairs Jordan and Biggs 
and all of us, to take a position averse to reauthorization of 
Section 702 in its current form.
    Since this is the second hearing of this subject, I hope 
that my colleagues are obtaining sufficient information to help 
us reach a compromised position to move this reauthorization 
forward and to acknowledge that all of us have criticisms, but 
I think what is broken needs to be fixed.
    Given the threats facing our Nation, from the ruling 
Chinese Communist Party that represents both the leading and 
most consequential threat to U.S. national security and 
leadership globally, according to Director of National 
Intelligence Avril Haines, to terrorist groups such as ISIS, 
al-Qaida, and Hezbolla, that continue to plot attacks against 
the United States, it is critical that we take appropriate 
action before the expiration of government authorities under 
this provision and simply make it right, make it correct, make 
it constitutionally infrastructured, if you will, to be able to 
function for what is needed and to protect the American people.
    That is why I will reiterate my thoughts from Part I of 
this conversation. We worked together to pass USA Freedom Act 
in 2015, demonstrating that we're capable of building consensus 
around our common values dedicated to privacy, transparency, 
and protection from unreasonable searches and seizures. Let us 
do so again together, on behalf of the American people, 
reshaping these critical tools so that they serve the 
government's needs and are also protecting the privacy of every 
American.
    I look forward to the testimony of our witnesses and yield 
back, Mr. Chair.
    Mr. Biggs. Thank you. I thank the Ranking Member Jackson 
Lee.
    Now, the Ranking Member of the entire Committee, Mr. Nadler 
from New York.
    Mr. Nadler. Thank you, Mr. Chair, and thank you for 
continuing this Committee's important work on FISA 
reauthorization and on the overall question of the warrantless 
acquisition of U.S. person information.
    At our last hearing, we heard from government watchdogs who 
described the FBI's ongoing compliance issues with Section 702. 
Today I hope to hear from the witnesses about the impact of 
these violations, even when they are unintentional, and about 
what changes this panel believes would make inappropriate 
queries of the 702 database all but impossible.
    As I said at the beginning of our last hearing on this 
topic, I have never voted to reauthorize Section 702. I am 
deeply uncomfortable, as we should all be, with the legal 
fiction that it is permissible for the government to search our 
most private communications without a warrant simply because 
they were aiming for non-U.S. persons overseas. I understand, 
however, that this authority is becoming increasingly important 
to our national security, and so I will entertain reauthorizing 
Section 702, provided that we meet this basic privacy challenge 
head-on.
    Although, Section 702 authorizes only the targeting of non-
U.S. persons who are outside the United States, we know that 
massive amounts of U.S. person data are swept up under this 
problematic surveillance. We also know from what reporting is 
available that the government has a lot of this data, that much 
of it could not have been obtained without a warrant had they 
tried to collect it directly.
    As the reauthorization debate has begun in earnest, the FBI 
has assured us that they only receive a small percentage of the 
total information collected under Section 702. We cannot 
discuss precise numbers in this setting, but nobody should take 
comfort in the fact that the FBI only has access to some 
portion of a staggeringly large volume of information, 
including vast amounts of data about U.S. persons.
    The FBI has also demonstrated, after two decades of 
tinkering with the system, an improved training and the 
reconfiguration of their database has reduced the number of 
improper queries of Section 702 information by roughly 90 
percent this past year alone. That is no small feat. I wonder 
where this debate would be today if the Department of Justice 
and FBI had taken the noncompliance problems seriously years 
ago.
    Again, it is difficult to find comfort in the percentages. 
If two years ago there were two million improper queries and 
last year there were only 200,000 improper queries, we are 
still left to contend with 200,000 successful attempts to 
sidestep our Constitutional protections.
    In a recent briefing, the FBI and the Department of Justice 
told our Members and our staff that one cause of noncompliance 
was a simple misunderstanding, in quotes, of the legal 
standards under Section 702. That was their term, 
``misunderstanding.'' I have no doubt that FBI personnel in 
field offices across the country may have had trouble 
interpreting the law, and I'm pleased that the administration 
is correcting course, but I find it deeply troubling that the 
FBI would blame its field offices for a problem that clearly 
originated from its leadership.
    Let's tell the stories that actually happened. Congress 
last reauthorized Section 702 in 2017. Over the course of the 
next few years, DOJ and the FBI diverged on how to interpret 
the legal standards for searching the Section 702 database. The 
FBI told us at the time that it was perfectly appropriate for 
the Bureau to take a looser view of the statute, an approach 
that ultimately gave them more access to our private 
communications. This was not misunderstanding. It was a 
deliberately maximalist interpretation of the law.
    The scathing FISA Court opinion that has been released 
since our last year hearing, the one that showed the FBI 
querying the database for particular campaign donors, George 
Floyd protestors, and January 6th suspects is a direct rebuke 
of that interpretation.
    I understand that the FBI has since corrected course. I'm 
deeply gratified that the leadership of the Department of 
Justice took control and decided to adhere to the limits 
Congress put in place. This so-called misunderstanding really 
gets to the heart of the matter.
    Chair Biggs and I agree on very little, but here is one 
place we agree. Whatever we think of the last administration, 
whatever we think of the current administration, we cannot 
count on the next administration to get this right. We have to 
build a Section 702 regime that fully respects our privacy, no 
matter who is in charge, not 90 percent of our privacy; all of 
our privacy. The changes the FBI has made to this program in 
the run-up to reauthorization are welcomed, but they're 
insufficient.
    I look forward to hearing from our panel today about what 
else we must do to correct this program before it can be 
reauthorized.
    Thank you, Mr. Chair. I yield back.
    Mr. Biggs. Thank you, Mr. Nadler.
    Without objection, all other opening statements will be 
included in the record.
    We will now introduce today's witnesses. I'm very excited 
to welcome this august panel.
    Professor Jonathan Turley, Professor Turley is the J.B. and 
Maurice C. Shapiro Professor of Public Interest Law at the 
George Washington University Law School. He's a nationally 
recognized legal scholar who has written extensively in areas 
ranging from Constitutional law to legal theory.
    Thanks for being here, Professor.
    Mr. Phil Kiko is a Principal at Williams & Jensen, PLLC. He 
is a former Chief Administrative Officer of the House of 
Representatives and has served in a number of positions with 
Members of Congress and Committees, including this Committee, 
the Judiciary Committee.
    Thanks for being here, Mr. Kiko.
    Mr. Gene Schaerr is a partner at Schaerr Jaffe, LLP, and 
serves as the General Counsel at the Project for Privacy and 
Surveillance Accountability. The Project for Privacy and 
Surveillance Accountability advocates for greater protection 
for Americans' privacy and civil liberties in government 
surveillance programs.
    Thank you for being here, Mr. Schaerr.
    Ms. Elizabeth Goitein--am I close?
    Ms. Goitein. Very. It's ``Goitein.''
    Mr. Biggs. Goitein, OK. Ms. Goitein is the Senior Director 
of the Brennan Center for Justice's Liberty and National 
Security Program. Her work focuses on Presidential emergency 
powers, government surveillance, and government secrecy.
    We welcome each of you here today. We thank you for 
appearing. I think we're all very excited to hear what you have 
to say, particularly potential remedies and reformation 
recommendations.
    We will begin by swearing you in. If each of you would 
please rise and raise your right hand.
    Do you swear 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 reflect the witnesses have all answered in 
the affirmative.
    Thank you. Please be seated.
    Please know that your written testimony will be entered 
into the record in its entirety. Accordingly, we ask that you 
summarize your testimony in five minutes. I will begin tapping 
just before that five minutes so you are aware that your time 
is about to expire, and the floor will open up, and your Chair 
will disappear. No, that really won't happen. I can't believe I 
said that. I'm not filtering. Anyway, I'll try to filter.
    Professor Turley, we recognize you for your five minutes.

                  STATEMENT OF JONATHAN TURLEY

    Mr. Turley. Thank you, Chair Biggs. Thank you, Ranking 
Member Jackson Lee, and thank you, Ranking Member Nadler, and 
all the Members of the Subcommittee. It's an honor to speak to 
you today about FISA and the reauthorization of Section 702.
    Today's hearing will raise admittedly difficult legal 
questions, and there's some questions, however, that should not 
be in doubt. There's no question that the FBI and other 
agencies have continued to defy Federal law and abuse their 
powers under FISA. There's no question that both the courts and 
Congress have been misled in the use of FISA in prior years. 
There's no question that the scope of the harm to privacy and 
Constitutional rights has been immense. The only question is 
what you're going to do about it. I think it is a significant 
moment in today's deeply divided politics that not only are the 
witnesses on this panel largely united in our views, but it 
appears that many of the Members of both parties are as well.
    Quite frankly, the FBI is back, once again, at a 
reauthorization, as Ranking Member Nadler mentioned, saying 
that ``you can trust us.'' For those of us who have been 
critical of FISA, it is an exercise of really breathtaking 
audacity, including, as Congressman Nadler stated, ``the 
continued reference to misunderstanding laws after years of 
litigation and discussion of those laws.''
    If we reauthorize Section 702 without significant changes, 
then we have a become a Nation of chumps. It's not like this is 
being held from us as facts. We have documented evidence of 
massive violations of the privacy of U.S. citizens. So, this is 
not something that is being hidden. It's in plain sight.
    Now, obviously, one of the possible responses from Congress 
can be simply to let this provision sunset. You just go back to 
the way it was in 2008. That would convey an important 
deterrent for agencies that, if you abuse it, you lose it, and 
this would certainly warrant that type of response.
    Assuming that you want to add guardrails, there are a 
number of things that I've suggested in my written testimony--
my colleagues have recommended others in theirs--these include 
ending backdoor searches, strengthening minimization standards, 
barring parallel construction, dealing with commercially 
available information as a circumvention of Constitutional 
protections, and the creation of special advocates in the FISA 
process.
    When Ronald Reagan famously talked about the Russian 
proverb ``Trust, but verify,'' we actually have our own such 
proverb or viewpoint, and that was contained in Federalist No. 
51 when James Madison said, ``you can never have government 
where you trust on the good motivations of the government 
itself.''
    This was part of his discussion that, if all men were 
angels, no government would be necessary. He said, ``that the 
key to good government was to oblige the government to control 
itself.''
    FISA fulfills Madison's worst expectations. That trust has 
been repeatedly violated by the FBI and other agencies. So, 
once again, I ask, what are you going to do about it? Now, 
government power is a lot like gas in a closed space. If you 
expand the space, the government will expand evenly to fill it. 
If you allow a crack, the gas will escape. Section 702 wasn't a 
crack. It was a wide-open door that allowed for these types of 
violations to occur, this pretense of incidental violations of 
privacy.
    I won't get into the specific details right now, but I'll 
be happy to talk about them. I do want to know, one of the 
suggestions that I make is for the creation of special 
advocates. As was mentioned earlier, Congress did create amicus 
as part of FISA. That system was commendable, but it has been 
an utter failure in my view. We need the creation of a 
different type of advocate within the FISA system. Just as 
there are advocates to protect our security in FISA, there 
should be advocates protecting our privacy in FISA, and we need 
to create a firm, structured role for that. In many ways, the 
Vatican had the devil's advocate that often had to present 
evidence against the wishes of the Vatican. We have to have the 
same process at FISA.
    Thank you very much for the opportunity to speak today, and 
I'd be happy to answer questions.
    [The prepared statement of Mr. Turley follows:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
    
    Mr. Biggs. Thank you, Professor Turley.
    Mr. Kiko, you're recognized for your five minutes.

                  STATEMENT OF PHILIP G. KIKO

    Mr. Kiko. Chair Biggs, Ranking Members Jackson Lee and 
Nadler, it's an honor to testify before this Committee.
    I was asked to share my experience in successfully 
assisting and crafting complex antiterrorism legislation, in 
particular, the USA PATRIOT Act and its progeny, and to provide 
some perspective associated with the issue of 702 expiring at 
the end of this year.
    A little background. Following widespread wiretapping and 
surveillance abuses, Congress originally enacted FISA to make 
sure that government agencies must secure authorization to 
gather foreign intelligence. In addition, FISA created two new 
Article III courts. The most significant later reforms in FISA 
were the enactment of the PATRIOT Act as a result of the 
attacks. The pressure on this Committee to do something after 
the 9/11 attacks was enormous. However, the Committee came 
together, considered all the options, formal hearings were held 
to discuss new antiterrorism authorities. We had a lot of 
unofficial late-night sessions. Committee Members sitting at 
the dais here, the Committee sought input from everyone; the 
door was wide open to craft the PATRIOT Act.
    One of this Committee's top bipartisan priorities was to 
ensure that we protected not only our national security, but 
our cherished civil liberties, and that core principle has been 
the hot point of contention in every FISA debate.
    The PATRIOT Act provided enhanced investigative tools to 
prevent the future terrorist activities and the prevention of 
preliminary acts in crimes to further such. It amended FISA by 
creating 16 new authorities. Looking back, one of the best 
things Congress did was to incorporate the sunset provisions. 
The idea of sunsetting these authorities was not popular at the 
time, particularly with the Justice Department, but the PATRIOT 
Act would be enacted with its extraordinary new powers and 
safeguards to civil liberties. Only the sunset provisions were 
there to preserve Congress' power to change the law.
    Since 9/11, FISA has been amended several times, including 
the addition of 702 in 2008, and it created procedures to 
collect foreign intelligence when communications travel to the 
United States communication infrastructure. It was designed to 
target non-U.S. persons reasonably believed to be located 
overseas, and it was viewed as a vital tool to protect 
Americans, including our men and women in uniform.
    Have the law enforcement agencies and intelligence 
communities earned our trust to retain those expansive 
authorities? I would say the answer I think is no. My written 
statement goes into the problems in detail, and this Committee 
knows more than ever the myriad of ways in which the failures 
have occurred.
    I should add this frustration is not a partisan one. Since 
the leak of the Snowden documents, the public disclosure of 
abuses that resulted in the passage of the USA Freedom Act, we 
have continued to witness serious escalating concerns 
surrounding misconduct and abuse of civil liberties. The public 
record is replete with abuse. The public trust has 
deteriorated.
    Obviously, something needs to be done. Traditional 
oversight is not good enough because it always looks backward 
after the damage has been done. When an agency abuses statutory 
construct, whether intentionally or through malfeasance or 
through negligence, there needs to be consequences for bad 
behavior. The lack of any consequences for these abuses 
compounds the lack of trust. Let's make the system more 
accountable.
    As for oversight, how can there be effective oversight when 
so few clearances of Congressional staff there is. Probably, of 
all the people that are doing oversight on the House side, I'd 
say more than--there's not more than 15 or 20 people that have 
the clearances that really goes. So, how are you going to do 
effective oversight? Trust me, they understand that in the 
agencies.
    So, 702 expires this year. The important provisions should 
not be lost if for no other reason than FISA was enacted to 
constrain. However, there's been abuse. If Congress decides to 
let it expire, which is their prerogative, then figure out a 
way to legislate a different mechanism to replace it.
    I stand ready to assist in any way I can. Thank you very 
much.
    [The prepared statement of Mr. Kiko follows:]
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    Mr. Biggs. Thank you, Mr. Kiko.
    Now, I recognize Ms. Goitein for your five minutes. Thank 
you.

                 STATEMENT OF ELIZABETH GOITEIN

    Ms. Goitein. Thank you.
    Chair Biggs, Ranking Member Jackson Lee, and Ranking Member 
Nadler, and Members of the Subcommittee, thank you for this 
opportunity to testify on such an important topic.
    Section 702 was passed to enhance the government's powers 
to conduct surveillance of foreign terrorists. Today, according 
to the government, it's used to combat a range of foreign 
threats, including cybersecurity attacks, fentanyl trafficking, 
and Espionage Act. Of course, if that were all Section 702 were 
used for, we wouldn't be here today. The reason that this 
authority is so controversial and the reason it should not be 
reauthorized without far-reaching reforms is that it's become a 
rich source of warrantless access to Americans' communications.
    How did this happen? Section 702 authorizes warrantless 
surveillance. Therefore, it can only be targeted at foreigners 
abroad. The surveillance inevitably sweeps in Americans' 
communications because Americans communicate with foreigners. 
If the government's intent were to spy on those Americans, it 
would have to get a warrant in a criminal investigation or a 
FISA Title I order in a foreign intelligence investigation.
    So, to prevent the government from using Section 702 as an 
end run around these Constitutional and statutory requirements, 
Congress did two things. It required the government to minimize 
the retention and use of Americans' information, and it 
required the government to certify that it is not using Section 
702 as a backdoor to spy on Americans.
    These protections have proven to be meaningless. All the 
agencies that receive Section 702 data conduct warrantless 
electronic searches of that data for the express purpose of 
finding and retrieving Americans' phone calls, emails, and text 
messages. The FBI conducted 200,000 of these backdoor searches 
in 2022 alone. This staggering number leaves no doubt that 
Section 702 has become a domestic spying tool, one that allows 
the government to circumvent the protections of the Fourth 
Amendment and FISA.
    Now, Congress and the FISA Court have an attempted to put 
some limits on this practice, but agencies have routinely 
violated those limits. In 2018, Congress enacted a warrant 
requirement that applies to a very small fraction of the FBI's 
backdoor searches. This requirement has been triggered roughly 
100 times. By the government's own admission, the FBI has never 
once complied with it.
    The FBI has also engaged in widespread violations of its 
own rules for backdoor searches according to the FISA Court. 
These violations include searches for the communications of 
more than 130 racial justice protestors, thousands of people 
suspected of involvement in the January 6th attack on the U.S. 
Capitol, 19,000 donors to a Congressional campaign, and 
multiple U.S. Government officials, journalists, and political 
commentators.
    The starting point for any conversation about reauthorizing 
Section 702 must be a requirement that the government obtain a 
Title I order or a warrant before searching Section 702 data 
for Americans' communications.
    That's only the beginning, because if Congress stops there, 
the government could exploit gaps in the law to obtain much of 
the same information, not just without a warrant but without 
any legislative limits or judicial oversight.
    For instance, generally speaking, FISA only applies when 
the government collects information inside the United States or 
from U.S. companies. This geographical boundary is a holdover 
from a time when domestic surveillance usually meant 
surveillance of Americans, and overseas surveillance usually 
meant surveillance of foreigners. In the digital age, 
Americans' communications are likely to be rooted and stored 
overseas as they are in the United States. Overseas 
surveillance can, therefore, have just as great an impact on 
Americans' privacy as domestic surveillance. Yet, for the most 
part, the government writes its own rules for overseas 
collection, and those rules expressly permit bulk collection 
and backdoor searches.
    There are also gaps in FISA's exclusivity provision that 
allow the government to treat certain parts of FISA as 
optional. For instance, FISA appears to require the government 
to obtain a court order to collect American cell phone location 
information. The government can and does obtain access to vast 
databases of this highly sensitive information by purchasing it 
from data brokers.
    There's little point in closing the backdoor search 
loophole if the government can simply pivot to other loopholes 
in the law. Meaningful reform of Section 702 will require a 
comprehensive approach to reining in warrantless surveillance 
of Americans.
    Thank you. I look forward to your questions.
    [The prepared statement of Ms. Goitein follows:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
    
    Mr. Biggs. Thank you very much.
    Now, we'll go to you, Mr. Schaerr, for your five minutes.

                   STATEMENT OF GENE SCHAERR

    Mr. Schaerr. Thank you, Chair Biggs, Ranking Member Jackson 
Lee, Ranking Member Nadler, and other Members of the 
Subcommittee.
    It's an honor to appear before you today on behalf of our 
civil liberties organization, the Project for Privacy and 
Surveillance Accountability, or PPSA. We work with groups 
across the spectrum to address government surveillance abuses 
and encroachments on the Fourth Amendment, and I'm here to urge 
you to treat the expiration of FISA Section 702 as a once-in-a-
generation opportunity for Congress to reassert its rightful 
Constitutional prerogative to broadly determine when, why, and 
how Americans can be surveilled by their own government. To 
that end, with our allies, we have urged Congress to enact 
comprehensive reforms that implement five key principles 
designed to protect Americans' privacy without sacrificing our 
security.
    Today I'll focus on just three of those principles and how 
they can help you bring all government surveillance of 
Americans with appropriate statutory guardrails and oversight. 
By the way, although I represent Carter Page and many other 
clients, I'm appearing today only on behalf of PPSA.
    The first principle that we've urged flows from the 
consent-of-the-governed concept articulated in the Declaration 
of Independence and then embodied in Article 1 of our 
Constitution. It is that American citizens should not be 
subject to surveillance by their own government without their 
implied consent, in the form of a statute duly enacted by their 
representatives here in Congress. Americans shouldn't be 
subject to surveillance merely at the whim of the FBI or any 
other executive official, none of whom has authority to consent 
to surveillance on our behalf. Yet, under administrations 
headed by both parties, the CIA, for example, has exploited 
technology-created gaps in FISA's reach to conduct a bulk 
collection program that sweeps up much of Americans' sensitive 
data. Similarly, as we've heard, the FBI routinely conducts 
backdoor searches of information collected under Section 702, 
and we've also heard the government routinely buys our most 
personal information from third-party data brokers. Without a 
clear statute governing all surveillance activities, Congress 
will be doomed to forever playing whack-a-mole with the 
surveillance agencies.
    The second principle is that, as Ms. Goitein said, ``any 
government access to Americans' communications or other private 
data should be undertaken only pursuant to a probable cause 
judicial order.'' Such a warrant or other order provides at 
least some assurance that the government has a specific concern 
that justifies the surveillance. A probable cause order 
requirement, moreover, should not apply just to direct 
surveillance but also to more indirect forms of surveillance, 
like searching for information about Americans in the database 
of purchased information or in the massive trove of data 
compiled under Section 702.
    On that point, you've already heard many examples of 
overreaching backdoor Section 702 searches--and I won't repeat 
them--but the potential for abuse of purchased data, including 
geolocation data and other Fourth Amendment protected 
information, is, if anything, even greater. Currently, neither 
of these indirect forms of surveillance is meaningfully 
constrained by statutory guardrails or judicial oversight. They 
should all be subject to a probable cause order requirement 
similar to the requirement for surveillance under FISA Title I.
    The third principle is that any surveillance of Americans 
should be subject to adequate mechanisms in both Congress and 
the Judiciary to ensure accountability for compliance with 
governing law. That's important because, as we know, the 
current system is rife with violations.
    The Chair mentioned earlier the DOJ inspector general 
report that found so many violations of the requirements 
applicable to applications to the FISA Court, and those 
problems highlight the need for an enhanced system of having 
civil liberties experts or amici advise the FISA Court in 
sensitive investigation along the lines of the Lee-Leahy 
Amendment that a couple of years ago passed the Senate 
overwhelmingly.
    More generally, any revamp of FISA must go well beyond 
ensuring that Congress has the tools to adequately oversee 
surveillance agencies. That revamp must also include enhanced 
penalties for violating statutory guardrails, for lying to 
courts, for refusing to comply with statutory reporting 
requirements, and other meaningful consequences for misbehavior 
or stonewalling.
    As the people's agents, you can stop this game of 
surveillance whack-a-mole. You can do that by asserting your 
Constitutional authority against an Executive Branch that under 
both parties is too often overbearing and against the Judicial 
Branch that too often gives the Executive an undeserved benefit 
of the doubt. Please don't let this rare opportunity slip away.
    [The prepared statement of Mr. Schaerr follows:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
    
    Mr. Biggs. Thank you, Mr. Schaerr.
    I now recognize the gentleman from Florida, Mr. Gaetz, for 
his five minutes.
    Mr. Gaetz. Ms. Goitein, many of my constituents will watch 
this hearing, and they'll say: Well, the Foreign Intelligence 
Surveillance Act, I'm not a foreigner. Why should that bother 
me?
    What would you say?
    Ms. Goitein. Americans' communications are swept up in 
enormous volumes, so enormous that the government won't tell us 
how big it is because it would be a very awkward number for the 
government to disclose. I suspect that's the real reason. Those 
communications are available to FBI agents without a warrant or 
a court order of any kind.
    Mr. Gaetz. You talked about these backdoor searches, and 
that's been an intense focus of the Committee. Could you help 
define that for folks, so they understand the risk there?
    Ms. Goitein. Sure. What a backdoor search is, is an 
electronic query of data obtained under Section 702. So, the 
communications are obtained. They are placed into data systems 
at the NSA and then shared with the FBI, the National 
Counterterrorism Center, and the CIA. Then agents can run 
electronic queries of those data systems using identifiers 
associated with Americans, so using an American's email 
address, for example. They can plug that in, and that will 
return any communications that were obtained under Section 702 
that have an American on one end of them and then--
    Mr. Gaetz. It almost feels like there's a digital file out 
there about millions of Americans, and I'm sort of wondering 
how--and we've tried to get straight answers from folks who 
work in the government about this question, but what we've 
learned is it's upwards of 10,000 people who can conduct some 
of these backdoor searches.
    Have any of your studies evaluated the breadth of 
individuals who can engage in this violation of our civil 
liberties?
    Ms. Goitein. No. We don't know the number, but I think--
    Mr. Gaetz. Isn't that scary? Shouldn't we--it seems like 
something we should know; how many people can do backdoor 
searches and information that was not collected pursuant to any 
probable cause or a warrant.
    Ms. Goitein. Yes, it would be a good thing to know. One of 
the reasons why I think we should be curious about it is 
because the government has told the FISA Court that one of the 
reasons for all these violations we've seen is that FBI agents 
didn't understand the standard for those searches, and that 
standard is that the search has to be reasonably likely to 
obtain foreign intelligence or evidence of a crime.
    That doesn't sound like rocket science to me, and that 
standard has been in place for 15 years.
    Mr. Gaetz. They break it--I just read an order from the 
Foreign Intelligence--the FISC, the court, and the court said: 
``Well, you weren't just using these searches and queries to 
get legitimate law enforcement information.''
    At times people at the FBI were searching, themselves, 
searching their ex-lovers, searching their neighbors in this 
system. So, it seems as though they're not really--there's not 
a standard that is adhered to.
    Ms. Goitein. It's adhered to often in the breach. There 
were 278,000 violations of that standard in 2021.
    Mr. Gaetz. If you've got 278,000 violations of the 
standard, as you've said, the breach is the standard in a lot 
of ways.
    So, we have this tactical question coming up. We have FISA 
that is set to expire, and I believe we should let it. I 
believe it--the standard of violation of breach is so pervasive 
that the patient is not savable, that we have to design 
something totally different outside of 702.
    Then I have other colleagues who are likeminded in my 
desire to protect civil liberties but who suggest tactically 
that the best broach is to try and insert strong warrant 
requirements.
    This is my seventh year in Congress. Mr. Kiko, I certainly 
don't have your experience, but I want to draw on it because I 
want to get your advice. I've gone down this road with the 
Cheney-istas and others who bring us to the precipice of 
reform, and then, at the last moment, it seems as though the 
civil libertarians rarely prevail over those who purport to be 
defending national security no matter how many violations of 
our liberties occur.
    So, would you advise a reform effort or an expiration 
strategy, and why?
    Mr. Kiko. Well, I would--that's a very tough question, and 
I know that's why you asked it. I would--can actually see--my 
preference would be some kind of reform effort with teeth and 
accountability because there haven't been any teeth and there 
hasn't by any accountability in the oversight that's been 
conducted. At the end of the system, they say they're going to 
do something. It never gets done; 4 years later we find out 
there's massive violations. Everybody comes. Well, we're going 
to do it this time.
    There's no accountability among the people who are breaking 
the law. There's no accountability among the administration. It 
doesn't matter. There's nothing.
    Mr. Gaetz. It sounds like there needs to be penalties.
    Thank you for your testimony. I yield back.
    Mr. Biggs. Thank you.
    The Chair recognizes the gentlelady, the Ranking Member, 
Ms. Jackson Lee.
    Ms. Jackson Lee. Thank you very much, Mr. Chair, and I 
thank the witnesses very much.
    Just a slight moment down memory lane, Ms. Goitein, and 
something called COINTELPRO. I won't ask you to get in the 
weeds, but it was used extensively against Dr. Martin Luther 
King and the whole landscape of civil rights activists and 
workers to give minimal liberties to African Americans during 
the 1950-1960's.
    So, here we are again with what was needed to be able to 
protect Americans, and I think it's important to indicate that 
the process was that, if there was communication and it was 
with a foreign operative, foreign citizen, the FBI for 
Americans would not be targeting you, not supposed to be, but 
were targeting that foreign citizen or the communications 
thereof.
    How did we mess up so badly?
    Ms. Goitein. Wow, that's a tough question.
    What I would say is that FISA as enacted in 1978 required 
the government to obtain an individualized court order showing 
probable cause that the targeted surveillance was a foreign 
power or an agent of a foreign power when domestically placing 
a wiretap to collect communications between even foreign 
targets and Americans, and that was to safeguard the Americans' 
Constitutional rights that they have in that communication.
    What Section 702 did is it got rid of that requirement, and 
it enabled the government to say that, as long as it's 
targeting a foreigner, we don't really have to worry so much 
about the Americans' Constitutional rights.
    Now, that's not actually what Section 702 says. It says: 
``You're going to pull this in the American side of the 
communications, but you should minimize it. You should delete 
it. You should not share it.'' Unfortunately, that's not what 
has happened.
    Ms. Jackson Lee. So, that is--because I'm--that's the crux 
of one of the elements of the problem?
    Ms. Goitein. Absolutely.
    Ms. Jackson Lee. There this mountain piles up, and no one 
feels any compulsion, not compelled to say let me immediately 
send it into the incinerator, throw it into the trash, et 
cetera. It doesn't happen.
    Ms. Goitein. Right. Even if the FBI comes across Americans' 
information or other agencies, NSA, CIA, that doesn't even seem 
to be foreign intelligence or evidence of a crime, they pretty 
much don't get rid of it until it reaches the age-off deadline, 
which is five years. It's five years with a lot of exceptions, 
so it's five years or in many cases much longer.
    Ms. Jackson Lee. Let me try to home in on what Americans 
may be impacted by. With respect to these cases, this pile of 
information which an agency has not complied with the 
guidelines that Congress put in place and/or their own 
policies, to your knowledge, has the evidence found in this way 
typically excluded in a criminal case?
    Ms. Goitein. Well, in most criminal cases, the government 
doesn't give the notice to criminal defendants that is required 
under FISA. There has been a long pattern of the government 
evading its notice obligations. If the defendant doesn't know 
that FISA has been used--that Section 702 has been used in that 
defendant's case, there's no way the defendant can raise a 
challenge, let alone have the evidence excluded. Most likely 
the way that the government has been avoiding this notice 
obligation is through parallel construction, which is a well-
documented practice of essentially recreating the evidence 
using less controversial means.
    So, one of the things that Congress should do, if and when 
it reauthorizes Section 702, is to prohibit parallel 
construction.
    If I could quickly speak to Congressman Gaetz' question, I 
think the problem with simply letting Section 702 expire is 
that--
    Ms. Jackson Lee. I will allow you to do so. The Chair is 
going to give me a little bit more time if you answer.
    Mr. Biggs. Oh, no, no.
    Ms. Jackson Lee. If you'll go quickly.
    Ms. Goitein. I'll go very quickly. Is that Congress will 
then lose the opportunity to make necessary reforms to other 
surveillance authorities and to close gaps that are in those 
authorities that allow the government to operate without any 
statutory authority at all. If Congress merely lets Section 702 
expire, the government will shift its surveillance activities 
to these other methods.
    Ms. Jackson Lee. So, let me quickly get from you the 
singular change, other than what we just talked about, parallel 
construction, that we should be looking at.
    Mr. Biggs. The gentlelady's time has expired, but you may 
answer that question.
    Ms. Goitein. If I have any message for you today at all is 
that you cannot just go with one singular change. A warrant 
requirement for backdoor searches is necessary. It is far from 
sufficient. There are other reforms that need to be made not 
only to Section 702 but also to overseas surveillance that 
currently happens without any statutory authority, to the 
practice of purchasing Fourth Amendment protected information 
from data brokers, and several other reforms that I mentioned 
in my written testimony.
    Ms. Jackson Lee. Thank you.
    I yield back.
    Mr. Biggs. Thank you.
    I recognize the gentleman from Wisconsin, Mr. Tiffany.
    Mr. Tiffany. Yes, thank you, Mr. Chair.
    The subject of this hearing, Mr. Chair, is fixing FISA. 
Correct?
    So, with all due respect, Mr. Kiko, I heard the comment you 
made that was along the lines of that both parties agree. On 
one of the most significant abuses of FISA, we do not have 
agreement, and that was in regard to one President Donald J. 
Trump. It was abused. Mr. Durham highlighted what an abuse it 
was of FISA, and we have many people, including on this panel, 
that still will not recognize that. That is dangerous for the 
American Republic, because if you have a praetorian guard that 
thinks they can take down a President, are we all free? Are we 
all free?
    Mr. Turley, building off from Mr. Gaetz' questioning, so 
let's say we don't authorize. What will happen? Let's say we 
didn't--will there be things that fill in the gaps? Do we have 
existing law?
    Mr. Turley. Well, thank you for asking that question, 
because there is a--what economists sometimes call a path 
dependency that can set in with these types of programs that 
you can't imagine not having 702. I can because 702--and many 
of the Members of this panel can because we were here. You were 
in Congress. I was testifying when 702 was created. So, there 
was an existence before 702--and Rome did not burn--that you 
have a system that can handle it.
    The question is whether Congress feels that these abuses 
are so serious that you want to use a rule, that if you abuse 
it, you lose it. This is not the first time the FBI has come 
before you and said: Oops, you know, we misunderstood the law. 
Oops, we did millions of improper searches. Oops, we actually 
violated the privacy of citizens in exactly the way that people 
said would happen.
    At some point, Congress has to decide whether 702 was a 
good path to take. If it decides to reauthorize 702, the 
solutions are very, very clear.
    Mr. Tiffany. Mr. Turley, if the people are not honorable in 
those agencies, is it even fixable?
    Mr. Turley. Well, part of the problem I had with Director 
Wray's testimony this week is, when he talked about FISA, he 
kept on saying that was that earlier Director. Well, the 
Director may have changed, but the people in the FISA system 
have not. There's been a consistent culture of violations here 
that go back throughout the history of FISA. This gets to, 
again, the sort of premise that was the flow of FISA of 
trusting the government to act on good motivations. I think 
that it's repeatedly shown, quite frankly, it cannot be trusted 
with that level of discretion.
    Mr. Tiffany. Unfortunately, I've only got five minutes 
here. I want to get a couple more questions in.
    Mr. Schaerr, so Mr. Gaetz, once again, said tactically what 
should the reforms be. What would be one reform that you say 
needs to be done if Section 702 is left in place?
    Mr. Schaerr. Well, our--
    Mr. Tiffany. Turn your mike on.
    Mr. Schaerr. Several others have come up with a list of 
reforms, and they're about--there are over 25 of them. Perhaps 
the most important is the warrant requirement, the probable 
cause requirement that we discussed earlier.
    If I could just briefly answer the question that you asked 
earlier, Congressman, as a former White House counsel, lawyer, 
the answer that I would give to your question as to why it 
would be a mistake just to let Section 702 expire is that you 
then have a statutory vacuum, which the Executive Branch loves. 
If you're a lawyer in the White House or the Justice 
Department, you're going to ask--the question you're going to 
ask is: If we do this, will we be violating any law?
    If there's no law on point, your inclination is going to be 
to ask: Well, does the President have an inherent authority to 
do this thing that the intelligence community wants to do?
    Of course, they tend to read Presidential authority 
broadly. So, if there's no statute that governs the issue, 
you're basically going to be opening the door to the White 
House and Justice Department lawyers to come up with creative 
rationales.
    Mr. Tiffany. So, you're concerned that we'd be ceding 
authority to the Executive Branch?
    Mr. Schaerr. Absolutely, it's not their role.
    Mr. Tiffany. What if there was a penalty of removal of 
qualified immunity for somebody that abused this?
    Mr. Schaerr. I think that's something that ought to be 
considered.
    Mr. Tiffany. OK. I got to get one more question in here.
    Ms. Goitein, Mr. Turley did a terrific job of anticipating 
my question.
    Did you hear the testimony of Director Wray?
    Ms. Goitein. I did not. I was busy preparing for this 
hearing.
    Mr. Tiffany. Well, I would just say to you that you were 
incredibly prepared, and we really appreciate that.
    Mr. Chair, I just want to say thank you for putting 
together this panel. It's one of the finest that I've been 
before.
    Mr. Biggs. Thank you.
    They have notified votes. They have called them. What we're 
going to do here, so everybody knows, is I'm going to go to Mr. 
Nadler for his questioning, and then we're going to recess 
until after the votes, which would mean I would anticipate 
somewhere between 11:15-11:30 we'll be back in this room. Sorry 
about that interruption.
    With that, Mr. Nadler, please.
    Mr. Nadler. Thank you.
    Let me first say that, with respect to what Mr. Tiffany 
said, we may have a disagreement over whether FISA was abused 
in a certain case, and not with respect to the former 
President. That doesn't affect our deliberations now. We all 
agree that FISA has been massively abused, and we've got to fix 
it.
    The idea of eliminating qualified immunity here is a good 
one. I'd like to eliminate qualified immunity entirely.
    Mr. Kiko, in the three months since this Committee last 
held a hearing on FISA, we learned that the FBI conducted 
unminimized warrantless backdoor searches of campaign donors, 
George Floyd protestors, and many others.
    If the FBI sought to search Americans' communications, no 
matter the reason, they would normally need a warrant under the 
Fourth Amendment.
    Could you briefly explain to us why the court has found 
warrantless searches of the 702 databases to be acceptable 
under the Constitution, Mr. Kiko?
    Mr. Kiko. I don't think a warrantless search is acceptable 
under the Constitution, and that was what was anticipated when 
the Fourth Amendment was created.
    Mr. Nadler. No, we agree on that. My question is, why has 
the court found warrantless searches of the 702 databases to be 
acceptable under the Constitution?
    Mr. Kiko. I haven't looked at that particular question, so 
I would ask a panel Member to--
    Mr. Nadler. Anybody else?
    Ms. Goitein?
    Ms. Goitein. I'd be happy to answer that.
    The FISA Court has found that warrantless searches are 
Constitutional. The FISA Court has essentially said, as long as 
the initial collection was lawful, then you apply some kind of 
lower standard to analyzing the queries rather than treating it 
as a separate Fourth Amendment event.
    However, Section 702 has recently made its way to the 
regular Federal Courts. I say recently because for many years 
the government was not providing notice to criminal defendants, 
so there was no way to raise the issue.
    In the past few years, regular Federal Courts have had a 
chance to look at this question and there is a divide among 
those courts. You have four District Court judges holding that 
these searches are Constitutional. Then you have four Appellate 
Court judges expressing serious Constitutional concerns.
    The only Federal Appellate Court to rule directly on this 
question was a unanimous three-judge panel on the Second 
Circuit, which held that you do have to treat the query as a 
separate Fourth Amendment event subject to its own 
reasonableness analysis. The Supreme Court has made clear that 
warrantless searches are presumptively unreasonable unless they 
fall within an established exception to the warrant 
requirement, such as consent or exigent circumstances. The 
Second Circuit remanded to the District Court to conduct that 
analysis.
    So, the courts--it is far from settled that these queries 
are Constitutional.
    Mr. Turley. Mr. Ranking Member, could I just add one thing 
as well to that? That is, this was a reference to the 
Hasbajrami case in the Second Circuit, and I agree with 
everything that is being said. One of the barriers that we see 
in Federal Court is that people have been denied standing to 
challenge these issues.
    Mr. Nadler. Ms. Goitein, the number of searches conducted 
among U.S. person identifiers went from 3.4 million in 2021 to 
less than 120,000 in 2022.
    Can you explain what remedial measures that DOJ put in 
place to reduce the number and whether you consider these 
changes sufficient to protect Americans from unwanted 
surveillance?
    Ms. Goitein. Sure. The FBI imposed some new training 
requirements, some new oversight requirements. It changed its 
data systems in various ways. These changes resulted in the 
searches, as you say, going from 3.4 million to 200,000 
searches.
    Now, I would say that one warrantless search of Americans' 
communications is too many. Two hundred thousand warrantless 
searches? That's 500 warrantless searches for our 
communications every day. That is just a jaw-dropping number. 
The fact that the FBI seems proud of that number really tells 
you how little regard they have for Americans' civil liberties.
    They have made these changes according to the FBI's own 
internal study. Noncompliance has been reduced to four percent. 
I think there are a lot of reasons to question that number. 
Even if you accept that number, four percent of 200,000 
searches--
    Mr. Nadler. That's a lot of people.
    Ms. Goitein. --that's 8,000 searches every year that 
violate the FBI's own low standards.
    Mr. Nadler. Thank you, Ms. Goitein.
    How can FISA be modernized to protect Americans' 
communications that are inadvertently acquired through Section 
702? What would be the impact of such changes in our national 
security? How can they be--what should we do, in other words?
    Ms. Goitein. Right. So, I think the solution is to require 
a warrant or a FISA Title I order to conduct these queries. The 
government has put forward absolutely no evidence and no reason 
to believe that this would harm our national security.
    After all this time, the government has managed to come up 
with three examples of situations where U.S. person queries 
were useful. The government has been very vague about exactly 
how those queries happened or were used and how they produced 
the benefit that the government is claiming. More importantly, 
the government has given no reason to think that a warrant 
requirement or a Title I order requirement would have prevented 
the queries from occurring.
    So, for example, there's the Colonial Pipeline ransomware 
attack. In that case, the queries took place after the attack. 
So, there would certainly be probable cause to support any 
query that would return evidence of a crime. Similarly, there 
were queries to try to identify and protect potential victims 
of assassination plots.
    Mr. Biggs. The gentleman's time has expired.
    Ms. Goitein. I would argue that surely these potential 
victims would have consented to a search had the FBI bothered 
to ask.
    Mr. Nadler. Thank you. I yield back.
    Mr. Biggs. Thank you.
    Again, thank you to the panel. Thanks for indulging us to 
go vote. We hope everybody votes with me.
    Anyway, we'll be back probably about an hourish, and feel 
free to make yourself comfortable here. Thank you.
    [Recess.]
    Mr. Biggs. I call the hearing back to order. Thank you 
again. I apologize for our recess.
    The Chair recognizes Mr. Nehls for five minutes.
    [Chart.]
    Mr. Nehls. [Audio malfunction.] I wholly agree.
    The FBI, on the other hand, has abused its FISA authorities 
and violated Americans' Constitutional rights. In several 
investigations and audits DOJ Inspector General Michael 
Horowitz and Special Counsel John Durham exposed the extent to 
which the FBI violated its FISA authorities.
    For example, in 2019, the OIG issued a 478-page report 
finding that the FBI has abused its FISA authority to illegally 
surveil former Trump campaign associate and American hero 
Carter Page. The report found 17 significant errors or 
omissions and 51 wrong or unsupported factual assertions in the 
application to surveil Mr. Page.
    The FBI relied upon uncorroborated information to support 
its application to surveil Mr. Page because they wanted to 
keep--my opinion--Donald J. Trump, the greatest President in my 
lifetime, from office.
    Per the report, the FBI cherry-picked facts to support its 
application, ignored exculpatory evidence, and even doctored 
evidence presented to a FISA Court judge to support its 
surveillance against Page.
    The FBI's FISA applications to surveil Trump's associate 
Page were based almost entirely on the debunked allegations in 
the Steele dossier that had no probable cause.
    I think it's very important that we go through Mr. Carter 
Page, an American hero. In 1993, graduates from the Naval 
Academy. So, wanted to serve his country. He worked as an Intel 
Officer for five years.
    Then you go forward. From 1993-2000, he begins working as 
an Investment Banker in London, making some money; 2004 gets 
promoted, moves to Moscow.
    That's where things kind of get interesting. In 2007, Page 
becomes an Internal Energy Consultant in Moscow and London. 
Then, in 2008, the CIA, they begin debriefing Page about his 
contacts with the Russians; 2009, now FBI counterintelligence 
interview, they interviewed Page, in which Page told them he 
was reporting information to the CIA.
    So, back in 2009 already, the FBI, the CIA, they know who 
Mr. Carter Page was.
    In 2013, some Russian agents, in January 2013, some Russian 
agents approached Page in an attempt to cultivate him as a 
source. He rejects, of course. In April of the same year, the 
FBI records one of the Russian agents complaining about Page 
because Page wasn't working with them, he wasn't going to do 
anything for the Russian agents. He's an American hero.
    In June 2013, the FBI interviews Page again, and Page said 
he was working, and he had spoken with the CIA. Page agrees to 
cooperate as a key witness in the FBI undercover investigation 
of the Russian agents that want to turn him.
    So, he is working, he is doing everything he can for his 
country, as he has when he started back in the Navy.
    Then it gets interesting. March 2016, Page meets with the 
FBI agents and Federal prosecutors about their case against the 
Russian agents. One of those Russian agents was found guilty, 
spent 30 months in prison. That couldn't have been done without 
Carter Page.
    Then, all of a sudden, this is where things get really 
sour. March 2016, Page joins the Trump campaign as a Foreign 
Policy Adviser. In April 2016, the FBI headquarters advises New 
York Field Office to investigate Page.
    Couple months later, in August 2016, FBI headquarters opens 
an investigation of Page and prepares a request to eavesdrop 
him under FISA. August.
    The CIA sends a memo to the FBI headquarters and advised 
the Crossfire Hurricane team that Page was an operational 
contact for the CIA for five successive years, 2008-2013, and 
the FBI does nothing. They do nothing with it.
    What do we know? The FBI withheld this information from the 
FISA Court, and the court approves the FISA warrant and 
secretly surveils Page. Wow. Wow.
    So, he is an American hero until he joins the Trump team. 
You wonder why people up here feel that the FBI cannot be 
trusted and why we say that they have weaponized the FBI to go 
against the American people, specifically with a dissenting 
point of view, like Carter Page and Donald J. Trump.
    They haven't stopped yet. They continue to go up against 
Donald Trump, whether it's Mar-a-Largo, whether its indictments 
up there with the job in Manhattan.
    It's just horrible what the FBI--we have to rein them in. I 
will not support the idea of reauthorizing 702 for the FBI 
until they get their house in order.
    With that, I yield back.
    Mr. Biggs. Thank you.
    The Chair recognizes the gentlelady from Pennsylvania, Ms. 
Dean.
    Ms. Dean. Thank you, Mr. Chair, and I thank the Ranking 
Member, for having this important hearing today, an important 
moment of bipartisanship in the understanding that the FISA 
application has gone horribly wrong. It is our responsibility 
to do something about it.
    So, I thank all the witnesses for being here today, for 
your expertise and your historical understanding of where we 
are and the grave moment that we're in.
    The Foreign Intelligence Act, FISA, the Legislative Branch, 
we're entrusted with making the laws of the United States. It's 
our job to decide what the rules should be, delineating fair 
from unfair, safe from unsafe.
    Sometimes these decisions are straightforward and easily 
guided by the Constitution and common sense. Other times the 
decisions are more difficult. It feels like we're in one of 
those places now with a clear-cut understanding that the abuses 
of the FISA applications and queries are unacceptable.
    We know we have a responsibility, as do the agencies, to 
protect our national security, to protect us against crime any 
time we can possibly do it. We must always protect civil 
liberties, people's right to privacy, and our Constitutional 
rights.
    Ms. Goitein, I was interested in your very eloquent history 
of what's going on here and what has happened. We do need to 
review the FISA process.
    What are the most, if you had maybe three areas of reform, 
what would be the most important--I know it's denser than 
that--but what would be the most three top areas of reform?
    Ms. Goitein. I've been trying to narrow it down a little 
bit because I know that that's helpful. It's difficult. There's 
a lot that needs to be done. I think I can at least narrow it 
to three buckets.
    The first bucket is ensuring that Section 702 works as 
intended. That means that it's not a domestic spying tool. For 
that, we need to have a warrant requirement or a requirement of 
a FISA Title I order before the government conducts U.S. person 
queries of Section 702 data.
    Part of the Section 702 reform also has to be narrowing the 
scope of permissible surveillance so that the government is not 
allowed to conduct surveillance of foreign targets who do not 
reasonably pose any threat to the United States or have any 
information about a threat to the United States.
    That is actually a vicarious protection for Americans' 
privacy, because the larger the scope of permissible foreign 
targets, the greater the volume of incidental collection of 
Americans' communications.
    So, that's the Section 702 bucket.
    Then, I would say that Congress needs to complete the 
modernization of FISA by ensuring that Americans' 
communications and Fourth Amendment-protected information are 
protected from warrantless surveillance regardless of where in 
the world the government obtains that information.
    Then, finally, I would say that the Congress has to close 
the data broker loophole. While we were on break, the House 
passed by voice vote a bipartisan amendment, cosponsored by 
Representatives Jacobs and Davidson and with a long bipartisan 
list of cosponsors, which I'm not going to list because I'm 
afraid I'll forget someone by accident, but the House passed an 
amendment that would prohibit the Department of Defense from 
buying its way around the Fourth Amendment and obtaining 
Americans' Fourth Amendment-protected information by buying it 
from data brokers.
    That is proof of concept Congress can do this, and Congress 
now needs to do that for all Federal agencies.
    Ms. Dean. That is very helpful.
    Mr. Kiko, thank you too for your testimony and your work on 
this. We talked about whether to sunset and allow it to expire, 
Section 702, or to reform it, as we've just had some 
conversation around that.
    What are the consequences of allowing 702 to simply expire 
later this year?
    Mr. Kiko. Well, I think allowing it to expire, you're 
turning over the keys to Article II, to the Executive Branch. 
We've had enough experience to know that even when they have a 
statute, there are ways to weasel around it.
    I just would be very--I mean, Article I is the Congress. 
They're the ones that establish the law. We're going to have 
to--my experience would be to draft something.
    You're going to have to have close oversight. You're going 
to have to bring the administration to heel for the 
consequences of abuse. Also, we don't have to have it read as 
broadly as it is for data purchases and for all this other 
stuff that they have been somehow figured to have jurisdiction 
over.
    So, if you could narrow that, but really have tight 
oversight and also consequences for people and agencies that 
don't follow what the law is.
    Ms. Dean. I thank you both.
    I thank you, Mr. Chair. My time has expired. I yield back.
    Mr. Biggs. Thank you.
    The Chair recognizes the gentleman from California, Mr. 
Kiley.
    Mr. Kiley. Professor Turley, in your statement you quoted 
Justice Brandeis' famous formulation of privacy as the right 
``to be let alone,'' which I do believe is indeed one of the 
rights most valued by Americans, and that most Americans would 
be horrified to hear of the government having access to their 
private communications.
    There's something really fundamental about the separation 
between the public and the private, the idea that each of us 
has a sphere of personal privacy that is inviolable. That goes 
to the heart of what it means to live in a free society.
    Sometimes you hear a contrary view that, well, if you're 
not doing anything wrong, what do you care if the government 
has access to this?
    What would be your response to that?
    Mr. Turley. Well, thank you very much for that question.
    What's interesting about the quote that you just cited is 
that this was part of the Katz/Olmstead line of cases. Katz 
said that, ``the Fourth Amendment is there to protect persons, 
not places.'' It got rid of the trespass doctrine as the key 
test for whether your rights are violated.
    We've sort of returned to that because the location of a 
lot of this data, if it's abroad, for example, or it's routed 
through an international source, suddenly loses its protections 
as a citizen.
    So, to answer your question, how does that impact you? The 
answer is that 702 and the abuses under that section impact 
free speech, associational rights, a host of other 
constitutional rights, because it creates a chilling effect. 
That if citizens know that their communications are part of a 
massive data bank, that the government can search and piece 
together who you've talked to, who you sent to, you begin to 
live in this fishbowl society. That impacts us as citizens, it 
impacts how we exercise rights, which is what Brandeis was 
referring to.
    Mr. Kiley. Mr. Schaerr, we've been talking a little bit 
about how this right was put into our Constitution by our 
Founders in the form of the Fourth Amendment and how a lot of 
the jurisprudence and our understanding of the Fourth Amendment 
is rooted in this idea of a reasonable expectation of privacy.
    So, we've heard that the law is, as far as the courts are 
concerned, is a little bit unsettled when it comes to how that 
applies to the situation we're talking about today.
    So, in your view, is that a lens that Congress should look 
through when deciding what to do about FISA, the reasonable 
expectation of privacy that Americans have? How should that 
apply to the gathering of information under Section 702?
    Mr. Schaerr. Well, two points.
    First, while Congress should take account of what the 
courts have said on the application of the Fourth Amendment in 
this setting, I don't believe, with all respect, that you as 
Members of Congress should feel bound by what the courts say.
    All of you--and I apologize if this comes across as a 
lecture--but all of you have taken an oath to support and 
defend the Constitution of the United States, not the 
interpretation of the Constitution by some Federal District 
judge in the Western District of Wisconsin or wherever he or 
she may be. You have the ability, and I think the right and the 
duty under the Constitution, to reach your own conclusions 
about what the Fourth Amendment requires.
    Second even Congress has an important role to play in 
determining for the courts what is a reasonable expectation of 
privacy and when do the people of the United States have a 
reasonable expectation of privacy.
    Even if some courts don't think that we have a reasonable 
expectation of privacy in our electronic data, which, as we've 
heard, may get sold to data brokers and then sold to other 
people, Congress can step in and say, no, we think the people 
of the United States do, in fact, retain a reasonable 
expectation of privacy in their private data, even if it's held 
by Google or Amazon or somebody else, and we, the Congress of 
the United States, believe that Americans retain an expectation 
of privacy and communications that have been collected pursuant 
to 702.
    Mr. Kiley. That's right. So, could we take the analysis a 
step further?
    So, I think most Americans would understand we live in a 
dangerous world and intelligence gathering is very important. 
Sometimes aggressive tactics are needed. It's possible that on 
occasion information can be incidentally collected.
    So, the question becomes, once that information is there 
and in the government's hands, what do you think is the 
reasonable expectation of Americans as to what is done with 
that information, how long it's kept, who can access it? 
Because that's really the question when it comes to reforming 
FISA that we need to consider.
    Mr. Schaerr. Well, certainly. If people have not expressly 
consented to have that data collected and put into the 702 
database, or wherever else it goes, it's fair to say that they 
should retain an expectation of privacy in that data, even if 
somebody else has it.
    Therefore, Congress can say to the FBI, consistent with the 
Fourth Amendment, if you're going to search that database of 
purchased data, or if you're going to search the database of 
702-
derived information, you need to get a probable cause order 
from a court.
    Mr. Kiley. Thank you very much. It's great to see the 
bipartisan agreement on a lot of these principles.
    I yield back to the Chair.
    Mr. Biggs. Thank you.
    The Chair recognizes the gentleman from Georgia, Mr. 
Johnson.
    Mr. Johnson of Georgia. Thank you, Mr. Chair.
    Having practiced criminal defense law for 27 years and 
acted as a judge for 12 years prior to my 17 years now in 
Congress, I understand Fourth Amendment principles and 
understand the concept of a reasonable expectation of privacy.
    I cannot wrap my head around the concept of a reasonable 
expectation of privacy in data that has been acquired over the 
open market by anybody who wants it, like Russia, China, Iran, 
or North Korea. That's data that is purchased every day by our 
adversaries. Why should our own government not be able to 
acquire that same data that we certainly have no reasonable 
expectation of privacy in, given the fact that it's on the open 
market?
    However, we in this country can certainly rely on the 
Constitution and its principles to protect our privacy, 
especially when privacy concerns bump up against security 
concerns.
    We've lived through harrowing terrorist attacks on U.S. 
soil and through attempts by foreign actors to meddle in our 
national elections. That's why, while taking affirmative steps 
to protect our civil liberties, we must give our intelligence 
community the tools it needs to protect us.
    Section 702 of the Foreign Intelligence Surveillance Act is 
one of those tools necessary to protect our national security.
    Due to the classified nature of much of the work that's 
done under Section 702 FISA authority, Americans will never 
know how it has kept them safe, the degree to which it has kept 
them safe. They will, through politicians, hear of problems 
with implementation of the legislation and demonization of 
those who would access that information to protect us.
    In the real world, law enforcement can control the street 
to monitor suspicious activity. They don't need a reasonable 
expectation of privacy to be out on patrol. We need to bring 
real world processes to the cyber world, and Section 702 allows 
us to do that, letting law enforcement patrol the information 
highways to neutralize threats.
    However, just as cops have certain limitations, the 
intelligence agencies have limits on their ability to search 
the Section 702 database when it comes to U.S. person 
identifiers. If the agency's investigation is related to 
national security, then a database search using U.S. person 
identifiers is allowed when the agency believes it is, quote, 
``reasonably likely,'' that such a search will retrieve foreign 
intelligence or evidence of a crime.
    If the agency's investigation is unrelated to national 
security, then the agency must get an order from the Foreign 
Intelligence Surveillance Court before it can search the 
database using U.S. person identifiers.
    In the past, it seems that the FBI has fallen short due to, 
among other things, lack of proper training on the limitations 
imposed on them by law. In this day and time, when politicians 
recklessly demonize government in general, and the FBI and DOJ 
in particular, the public is susceptible to claims that the FBI 
willfully defies the law, abuses its power as a regular course 
of conduct, and, as some have argued, is generally, quote, 
``bad.''
    I respectfully disagree with the assessment of the 38,000 
employees of the FBI, including special agents and support 
professionals, many of whom put their lives on the line every 
day to protect us from danger, both foreign and domestic.
    I would also point out that it's not about bringing this 
administration to heel. These FISA excesses existed during the 
Trump Administration and before.
    I am heartened to see that the Department of Justice is 
working hard to improve agency compliance with the civil 
liberties protections in Section 702. I look forward to 
continuing the dialog on how we can improve compliance with 
Section 702, how we can improve the act itself.
    With that, I will--well, I don't have time.
    Mr. Biggs. Yes, you can't yield anything back. You don't 
have any time left. Thank you, though.
    Mr. Johnson of Georgia. Well, I said what I wanted to say.
    Mr. Biggs. I know you did.
    We will now recognize the gentlelady from Florida, Ms. Lee.
    Ms. Lee. Thank you, Mr. Chair.
    Thank you to all of you for being here today.
    As we work to identify solutions and improvements to this 
process, for us to have a panel such as this is extremely 
helpful. So, we are very grateful to have your years of 
experience and your background working in the subject matter 
here with us today, both your written testimony and what you 
have shared with us during this hearing.
    A number of us commented, and I think it bears noting again 
here today, the good work and integrity of so many of the men 
and women of the FBI who work out in field offices across this 
country.
    However, that said, we are, of course, here to address a 
very specific and serious concern, which is the misuse of FISA 
and surveillance techniques. I believe there is broad agreement 
here that we have much-needed reforms to discuss.
    I'd like to go back, Mr. Schaerr, to some of what you've 
testified about in parts of your written testimony that you 
submitted to us.
    So, we know that 702 is providing the FBI with access to a 
large amount of information about Americans. One thing that you 
have touched on when we look at the concept of potentially 
creating alternative statutory schemes or potential revision, 
the concept that the government is also utilizing other sources 
of information, private data, other things to essentially 
surveil or gather information about Americans.
    I'd like to hear more about that subject and what you would 
propose, if anything, we should be doing to try to monitor or 
curtail that practice.
    Mr. Schaerr. I assume that you're referring to the purchase 
of data.
    Ms. Lee. Yes, sir.
    Mr. Schaerr. Which is, in my view, an equally, if not more 
serious problem than the vast trove of information that's 
collected under--pursuant to Section 702.
    Certainly, both of those enormous databases together can be 
an enormously powerful surveillance tool. Like any other 
surveillance tool, it should be subject, in my view, to a 
judicial order with a probable cause requirement. I think 
that's the most important thing that can be done.
    I don't think any of us here on the panel are disputing the 
wisdom or the ability of the FBI to collect the underlying 
data. Yes, in many instances it's broader than it needs to be. 
The key event is not so much the collection of the data as the 
searching of that data using identifiers that are specific to 
American citizens.
    In my view, that constitutes a search for Fourth Amendment 
purposes. Even if you disagree with that, it's still an 
important event to the privacy of an American citizen and is 
therefore something that Congress can and should regulate very 
closely.
    Ms. Lee. All right. Thank you, Mr. Schaerr.
    Professor Turley, I'd like to go back to something you 
mentioned earlier as well, and that is the concept of making 
the FISC Court process more adversarial, adding an adversarial 
component of that, or having an amicus involved in that 
process.
    Would you elaborate for us on how you think that type of 
reform could be implemented and how that might look?
    Mr. Turley. Thank you very much for that question.
    The Congress years ago implemented this amicus process by 
which the court can reach out by what the Congress described as 
novel questions to get the assistance of essentially a third-
party view separate from the government.
    That has been relatively underutilized. As far as I know, 
there's no indication it's ever been used in an individual case 
where the FISC Court says, can you look at this application?
    What we know is that when we actually put those 
applications under a spotlight, which is relatively rare, as 
the Chair mentioned, out of 29 cases reviewed, 25 of them were 
in error.
    So, there's obviously a need for some additional viewpoint. 
I don't think that's going to be achieved with any amicus 
curiae. I think that what you really need is this sort of 
concept of a special advocate, a formal office that has the 
ability, among other things, to bring a case to the appellate 
FISA Court, to say that there's a problem here that you should 
reveal or review.
    I think that would be very useful, to have an actual 
privacy advocate with security advocacy. It you're going to 
have a secret court, let's make sure both are represented.
    Ms. Lee. Thank you, Professor Turley.
    Mr. Chairman, I yield back.
    Mr. Biggs. Thank you.
    The Chair recognizes the gentleman from South Carolina, Mr. 
Fry.
    Mr. Fry. Thank you, Mr. Chair.
    This is incredible. Finally, we've been fighting all week 
on the floor on the NDAA. In this Committee, it's always a 
knife fight, it seems like. In today's hearing we have really 
unanimous support for fixing this process or letting it expire. 
There's a recognition across the entire country that this needs 
to be fixed.
    What's perplexing to me--and we just had Director Wray come 
in--Professor Turley, you alluded to that earlier--who, if you 
ask agencies, all is well in the Land of Oz.
    This is really not the case. We know that the FBI and other 
agencies have abused FISA to the nineth degree. We know that 
they continually spy on Americans without a warrant. We know 
that they end around and they use data collection, geotagging, 
and geolocation to look at the activities of Americans.
    At the end of the day I look back--and, Professor, you 
cited the Federalist Papers--we're a Nation of laws. We are not 
some Orwellian dystopia where these things are appropriate or 
even allowed, but we've allowed to them to happen. To the point 
of the entire panel, we really need to get a handle on this in 
a pretty aggressive way.
    Professor Turley, I want to start with you. To hear the FBI 
talk about it, we should be celebrating that we went from two 
million illegal search queries to 200,000. Do you think this is 
cause for celebration?
    Mr. Turley. No. It's like a bank robber saying, we're 
hitting smaller banks. I mean, the problem still is that you're 
engaged in something you're not supposed to do.
    Look, the thing that we have to keep in mind is that all 
governments are information junkies. That is consistent across 
all types of government, whether they are democratic or 
authoritarian. They're information junkies. They want more 
information. It's not necessarily for nefarious purposes. It's 
that they want data. They always do. So, this impulse will 
exist, and it will grow unless you restrain it.
    I was baffled by the Director's testimony. When he said 
that he wasn't even aware of what parallel construction was, I 
was really taken aback, because that's a core issue in these 
FISA debates. It's been an issue for years. I just looked in 
disbelief when he said, I'm not sure what that might be.
    What that might be is a very serious threat to privacy 
that's existed for years. It essentially replants material to 
create a different origin. Its purpose is to hide the original 
origin from courts.
    As someone who's litigated national security cases, I have 
to tell you that these cases are riddled with this type of 
slight of hand. I am usually the cleared attorney in national 
security cases, I've had national espionage, terrorism cases. 
When you hit a FISA line, all the lights go off. The government 
gives you nothing.
    The other thing that I want to emphasize about this 
commercially available information is it has another insidious 
problem. That is what happens is the government often wraps 
commercially available information into FISA applications, and 
then everything gets iron plated under FISA. When people like 
me finally see the applications in the SCIF, we find it's 
loaded with material that should have been disclosed to defense 
counsel or trial counsel.
    Mr. Fry. Right, so this is nothing to celebrate. I mean, 
200,000 violations of the Fourth Amendment are not really a 
good cause for celebration.
    Professor, I think you hit on having a special advocate and 
strengthening that. I think that's a great step. What in your 
mind are other reforms that would be crucial to fixing the FISA 
problem that we have in this country?
    Mr. Turley. Well, Congressman, the most important one is 
where we should have started and ended this debate in 1978. 
That is, you cannot engage in a query, search of a U.S. citizen 
without a warrant, or Title I order, period. I don't think it 
should matter where that occurred.
    Now, it's true, the extraterritoriality of the Fourth 
Amendment has not been supported by the Supreme Court. You can 
support it. You can support the rights of U.S. persons abroad. 
That creates a very clear line.
    When I talked about letting the provision sunset, I'm 
saying that when its sunsets you make clear that all searches 
or inquiries, wherever they are, of a U.S. citizen by a U.S. 
agency, must be accompanied by a warrant or Title I order, 
period.
    Mr. Fry. Right.
    Mr. Turley. They can find a way to try to get around that. 
That's the brightest of bright lines.
    Mr. Fry. Mr. Schaerr, real briefly, to wrap up. I'm also 
concerned that even if we fix this, the administration, a 
future administration, will just end around this by virtue of 
Executive Order.
    So, how do we deal with FISA in reforming FISA when an 
administration could just go around it? What would you suggest 
in that sphere?
    Mr. Biggs. The gentleman's time has expired.
    You may answer the question.
    Mr. Schaerr. I think the short answer is two words. Any 
statute needs to make clear that whatever Congress specifies is 
an appropriate search has to be the exclusive means of 
obtaining the information that's covered.
    If you're a lawyer sitting at the White House or the 
Justice Department, you feel an obligation to be sure that the 
President that you serve takes care that the laws be faithfully 
executed. If it's clear in the law that there's one exclusive 
way of getting the information at issue, you're going to feel 
some obligation to be sure that your boss proceeds in that way. 
If there's a statutory vacuum, that's where the problems arise.
    Mr. Biggs. The gentleman's time has expired.
    Now, I haven't taken my five minutes of questioning yet, 
but I'm going to go ahead and do it. I am going to limit it to 
three questions and--
    Ms. Jackson Lee. I have the gavel.
    Mr. Biggs. You took the gavel from me.
    Yes, she's good. She's going to pop me with that gavel.
    OK. We're going to start with you, Mr. Turley, please.
    Let's start, let's get with this, capacity of State and 
District Courts to keep records and information sealed. That's 
one of the critiques we have about moving away from a FISA 
Court, because, ``Oh, boy, there'll be leaks,'' as if there's 
been no leaks in the current scheme.
    So, tell me your experience there. Is it possible for State 
and Federal Courts to keep information sealed?
    Mr. Turley. Yes, I always hear this objection, and it has 
no support at all. I deal with national security cases through 
regular Article III Courts throughout the years. They have 
SCIFs. They have training. They're cleared. There aren't these 
allegations of leaks.
    The issue with the secret court is that no one's objecting 
that you can have a secret court in the sense of a giant SCIF 
where secret proceedings can occur. You can even have judges 
that are selected and trained for that purpose. The question is 
whether the standard for U.S. citizens and U.S. persons should 
be different in that courtroom. I have never accepted that to 
be the case. I don't see an exception under the Fourth 
Amendment.
    Mr. Biggs. Right. I appreciate that. I'm in agreement with 
that.
    Mr. Schaerr, I'm going to go to you next.
    The gentleman from Georgia kind of intimated that somehow 
data collection and querying is similar to an officer in the 
patrol car driving around and observing suspicious activity, 
maybe making a Terry stop, or whatever you want to call it.
    How is this different and why should we equate this more 
like to a wiretap rather than a stop and frisk?
    Mr. Schaerr. I think it is very much more like a wiretap. 
Yes, if you're a police officer, you have a right to be on a 
highway and watch what goes by, but that doesn't mean that you 
also get to have a helicopter flying over the neighborhood and 
taking picture of everything that happens in every home in that 
neighborhood.
    So, by all means, I think the wiretap analogy is the right 
one to use because that exactly is what 702 is doing, is it's 
taking a stream of data, a massive stream of data, and just 
pulling things out of it. Even if it's appropriate to collect 
the data, there needs to be Fourth Amendment protections when 
it comes to searching that data.
    Mr. Biggs. Just as you would have in a wiretap, when you 
narrow the search down, you have made a particularized--you 
have targeted somebody.
    Mr. Schaerr. Right.
    Mr. Biggs. You're going forward and getting a warrant, 
right?
    Mr. Schaerr. Right. Searching a database with somebody's 
name or other identifying information is more analogous to a 
wiretap.
    Mr. Biggs. So, I want to get to this other thing too, Ms. 
Goitein, and that is dealing with purchased information. I 
think Professor Turley kind of got to it a little bit, is that 
they wrap it up. We've been briefed by the FBI on this. They 
talk about multiple databases that they're using. Then there's 
a wall that's created.
    Why should we prohibit the use of purchased material when 
we know other nations are using it?
    Ms. Goitein. Well, that's an important question. Let's be 
clear that we are talking about material that the government 
would need a warrant or a court order or subpoena if it were 
compelling the production. So, we're talking about sensitive 
information about U.S. persons.
    The reason the government can buy this from data brokers is 
because there are loopholes in the law. The law does prohibit 
phone companies and internet companies from selling this type 
of data to the government, but that law is from 1986 and so it 
doesn't address digital data brokers. They didn't exist back 
then.
    So, there's this loophole where the government--where the 
companies cannot sell it to the government. They can sell it to 
data brokers. The data brokers turn around and sell the same 
information to the government at a handsome profit. So, the 
information is laundered through a middleman.
    Now, we should be concerned about the fact that foreign 
governments can get this information. Congress absolutely 
should act on that problem. The Brennan Center is in favor of 
comprehensive consumer data privacy legislation.
    That should not stop Congress from acting now to make sure 
that our government can't exploit this loophole. Because when 
the U.S. Government is obtaining Americans' sensitive 
information, there are risks and harms to Americans' civil 
liberties that go beyond what can happen when private entities 
can get that information or even foreign governments.
    Because the U.S. Government has coercive powers over 
American citizens that private companies and foreign 
governments do not have the ability to put us in jail, the 
ability to deport people, to tax you, to fine you, to put you 
on a no-fly list, and to withhold public benefits.
    There are all kinds of ways in which the government can 
impact our liberties. For that reason, the Fourth Amendment 
applies to the U.S. Government, not to private actors, not to 
other governments, and Congress should make sure that the U.S. 
Government is honoring those Fourth Amendment protections.
    Mr. Biggs. Well, my time has expired. I thank each one of 
you. You've provided us with some information, and I think it's 
vital. A lot of comments.
    What I would ask of you is, as we go forward, we may have 
ideas, legislation that we want you to review. Please make 
yourself available. We appreciate you making yourself 
available.
    Ms. Jackson Lee. Mr. Chair.
    Mr. Biggs. I believe there's some unanimous consents?
    Ms. Jackson Lee. Yes, there are. I would like to contribute 
to Ms. Goitein, but I would like to unanimously submit into the 
record the Brennan Center's ``Bipartisan Coalition Responds to 
the FBI's New Policies Under Foreign Intelligence Surveillance 
Authority.'' I ask unanimous consent. Under Epic.org, July 13, 
2023, ``New FBI Procedures Under FISA under Section 702 `Out of 
Touch' with Extent of Abuse and Gravity of Privacy Threat.''
    I think I will yield on those two items and ask unanimous 
consent that they be entered into the record.
    Mr. Biggs. Without objection, entered into the record.
    Ms. Jackson Lee. With the collegiality that we will work 
together on the best solution of this matter.
    Mr. Chair, I just want to put on the record we are facing 
in the next decade artificial intelligence. I yield back.
    Mr. Biggs. Thank you so much.
    With that, I appreciate everyone being here. We are 
adjourned.
    [Whereupon, at 12:02 p.m., the Subcommittee was adjourned.]

    The record for this hearing by the Members of the 
Subcommittee on Crime and Federal Government Surveillance is 
available at: https://docs.house.gov/Committee/Calendar/
ByEvent.aspx?Event ID=116211.

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