▶ 0:19:34Subcommittee will come to order. Without objection, the chair is authorized to declare recess at any We welcome everyone today's to today's hearing on federal government surveillance. I now recognize the gentleman from Alabama, Mr. Moore, to lead us in the Pledge of Allegiance.
▶ 0:20:10I now recognize myself for an opening I welcome my colleagues to this important hearing, and I welcome our witnesses and thank them for being here The Fourth Amendment guarantees all Americans the right to be free of unreasonable government searches and With advances in technology, Americans' personal data has become easily tracked and collected, and the government can and does obtain this information without acquiring a warrant and without ever notifying an individual uh who is subject to a search.
▶ 0:20:40This is especially prevalent in the context of the Foreign Intelligence Surveillance Act. Reports in recent years detail how the FBI, under the leadership of past FBI directors, abused its authorities under The FBI used its authorities under Section 702 of FISA to conduct millions of queries of US person communications. At its peak, the FBI conducted nearly 3 million such searches in 2021.
▶ 0:21:05In recent years, those numbers have begun to decline but the FBI still conducts thousands of US person queries every month. These actions violate the privacy and civil liberties of Americans and likely infringe on their Fourth Amendment I've called for serious reforms to FISA for years and last Congress we undertook the task of attempting to rein in years of FISA abuses. Congress enacted a bill that included various reforms such as new and heightened criminal and civil penalties for those who violate FISA.
▶ 0:21:36We significantly reduced the number of FBI personal personnel authorized to approve queries. We required audits of US person queries and implemented many new reporting and transparency measures. But we must still work to protect the Fourth Amendment rights of all I introduced an amendment to require a warrant for all US person queries. This amendment included various exceptions to allow the FBI and the intelligence community to do its vital work of defending our homeland while protecting Americans privacy rights.
▶ 0:22:07This amendment had broad bipartisan support and we worked closely with our colleagues across the aisle in an attempt to address this issue. I believe such a reform is necessary to end the abuses of Americans' rights. But reforming FISA it's itself is not The government has plenty of other tools at its disposal to collect information on Americans. Currently the laws governing law excuse me governing how the Fourth Amendment is applied in the digital context is the wild west.
▶ 0:22:34Key legislation in this space is the Electronic Communications Privacy Act which was written in 1986 and did not take into account all the advances in digital communications that have occurred since. The iPhone for example did not show up for two decades after this law was These cell phones have become such an integral part of our lives that as the Supreme Court has held they now quote hold for many Americans the privacies of life close quote.
▶ 0:23:01Federal agencies are able to sidestep the requirements of the Fourth Amendment and access and collect massive amounts of private information on Americans by exploiting a legal loophole in this Rather than obtain a warrant, government agencies like the Federal Bureau of Investigation, the Internal Revenue Service, the Drug Enforcement Agency, and the Department of Homeland Security can simply turn to data brokers and purchase mass amounts of Americans' This includes such private information like location and health information and so on.
▶ 0:23:31Currently, with a disturbing amount of frequency, data brokers sell Americans' personal information to law enforcement and intelligence agencies without any court oversight. In contrast to strict rules that prevent phone companies and social media sites from selling such information to the We also are aware of reports of the federal government using facial recognition technology.
▶ 0:23:54This is a powerful tool that can be used to help solve crimes, but this technology also raises serious issues concerning First and Fourth Amendment Law enforcement agencies could potentially use this technology to surveil individuals who are not engaged in any illegal activity whatsoever.
▶ 0:24:11For example, we've seen reports of ATF using facial recognition to find gun The federal government has also turned to private companies like Clearview AI to purchase access to facial recognition Clearview AI pulls publicly available photographs from social media sites and puts them into a database marketed to law enforcement. Clearview AI's founders call the service a search engine for faces. The Government Accountability Office has conducted studies of federal law enforcement entities use of this technology in recent years.
▶ 0:24:42It found that federal law enforcement agencies had not properly assessed privacy and other risks associated with the use of this technology. And some did not even know which systems their agents were using. As technology continues to develop, the government has more and more information about Americans available to it. Used improperly, this will continue the pattern of government surveillance of US citizens that we have fought so hard Congress must protect the privacy rights of Americans and uphold the guarantees of the Fourth Amendment.
▶ 0:25:10I look forward to this opportunity opportunity to discuss the dangers of mass surveillance and explore meaningful reforms. I appreciate our witnesses and the members for being here today and the public for attending as well. I now recognize ranking member of the entire committee, Mr. Raskin, uh for his opening statement. Well, thank you. Thank you very much, Chairman Biggs, and uh thanks to our distinguished witnesses for joining us here today.
▶ 0:25:35The Fourth Amendment guarantees the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures. Uh that right is the same today as it was when it was uh written centuries ago, but the facts on the ground have obviously uh changed. Members of Congress didn't have cell phones in their pockets. We didn't have uh Zoom. We didn't have email.
▶ 0:26:01Uh the times have changed, and while the constitutional right to um has not changed, new technologies make it a lot harder to rein in government intrusion in the lives of the people. Artificial intelligence turbocharges surveillance capabilities by sifting through mountains of personal data in seconds.
▶ 0:26:22Data brokers aggregate and re- identify so-called de-identified data bought from apps and then sold to others, including the government, allowing them real-time access to Americans' location, purchasing habits, and health care needs. And cameras equipped with facial recognition technology can scan a crowd and instantaneously pick out specific people, whether law enforcement targets or undocumented immigrants, you name it, all without a warrant.
▶ 0:26:50In an 1829 speech at the Virginia Constitutional Convention, Madison said to his colleagues, "The essence of government is power, and power lodged as it must be in human hands will ever be liable to abuse." The US government has broad surveillance authorities. When properly implemented, they keep us safe from terrorists and foreign adversaries and gangs, but such broad grants of power are also fertile ground for abuse.
▶ 0:27:16I believe Congress has a duty to balance the government's need for Americans' private data um with our rights. I have voted in favor of government surveillance authorities when they do not trespass on our constitutional rights, and I voted against them when they don't. We obviously need to keep ourselves safe both from criminals uh and fraudsters who would do us harm, as well as those in power who would violate our freedom.
▶ 0:27:43When we last reauthorized Section 702 of FISA, which allows warrantless collection of the communications of non-US persons located overseas, including when those people are interacting with Americans, our solution to that tension between privacy and security was to establish more checks on the government. Congress previously imposed rules dictating when the FBI can search for Americans' identifying information in the 702 databases, but we know those rules had been honored only in the breach.
▶ 0:28:12Rather than review a sampling of those US person searches, the FBI's National Security Division now must audit every search for the communications of an American. These watchdogs within the FBI and in other government agencies are an essential line of defense against government overreach. But the problem today is that President Trump has fired all of those people. A week after he was sworn in, President Trump fired every Democratic member of the Privacy and Civil Liberties Oversight Board.
▶ 0:28:39This is the board created by Congress in 2004 to make sure the government does not violate American civil liberties in the name of keeping us safe. The work of these Democratic members have been lauded even by Republican members of our committee who recognized and shared their commitment to protecting our rights against government overreach. Trump has left the Privacy and Civil Liberties Oversight Board with only one member, a single member who's been stripped of all authority because the board needs a quorum, which is three to act.
▶ 0:29:08She cannot issue recommendations on Section 702 US person searches. She cannot hold public meetings without the fired members, it's as though the board simply doesn't even exist. But the president did not stop there. Remember those monthly audits of every single US person search of the 702 database? He removed the individual responsible for managing that and rescinded offers extended to those who had been recruited to help her.
▶ 0:29:33So Congress cannot receive the audit reports required by law because there's simply nobody left to audit these warrantless searches, much less provide the mandatory report to Congress, which is why I'm also concerned about all the other things that have been done to remove the safeguards around Americans' right to privacy against government invasion.
▶ 0:29:54The president fired at least 17 inspectors general, dismantled the Cyber Safety Review Board, and removed the director of the NSA, the person in charge of collecting 702 data responsibly and within statutory limitations. Just last he fired the four-star general in charge of the NSA and US Cyber Command with other high-ranking security officials because according to reports, Laura Loomer told him to do that.
▶ 0:30:21In a system that works, surveillance and privacy are tied and made consistent. Those conducting surveillance understand the threat both to the country and its civil liber- civil liberties and thus apply the rules in a precise and disciplined way. Ben Franklin Franklin famously said that those who give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety.
▶ 0:30:46Well, Trump has defied even Ben Franklin because in 78 days we have lost both privacy and safety. We are less safe and we're less free than we were on January 19th, 2025. President Trump and those he's placed in charge of the FBI, like Kash Patel, have talked about using the power of government to visit retribution on anyone the president sees as an enemy.
▶ 0:31:08Over the last 78 days, we've watched the administration attack journalists, the free press, colleges, peaceful protesters, members of Congress, lawyers and law firms, even federal judges because they have countered his assault on the rights and freedoms of the people. Never have I felt more concerned about the extremely broad warrantless surveillance powers that have been entrusted to the executive branch.
▶ 0:31:31Chairman Jordan and I have disagreed about various things in the past, but he I must say he has shown commendable and strong leadership and worked across the aisle to ensure that Republicans and Democrats alike understand the dangers of unchecked government surveillance, and the times bear him out. I am looking forward to working with him closely on a bipartisan basis in this set of hearings in the lead up to the expiration of FISA Section 702 next year to stand up for all Americans' civil liberties. I thank him for his leadership.
▶ 0:32:01I thank you, Mr. Chairman, and I yield back. Gentleman yields back. The chair recognizes chairman of the full committee, Mr. Jordan, for his time. Thank you, Mr. Chairman. Section 702 of the Foreign Intelligence Surveillance Act allows government to conduct surveillance of foreigners, as the title would suggest, outside of the United States for intelligent intelligence information. Okay, that's all well and good.
▶ 0:32:25We like They get that information, they bring it to this giant database, that's what I call the haystack of information, and then they do queries, which is a fancy word for search, and they search Americans. American phone numbers, names, email addresses, they search America. They call it queries but a query is a fancy name query is a fancy name for search. 3 million times they did it in 2021. And here's the kicker.
▶ 0:32:53The FBI when they did all these searches didn't even follow their own rules. You don't have to take our word for it. The Inspector General said 278,000 times the FBI didn't even follow their rules for conducting these searches on Americans, not foreigners. So the ranking member's right. We got 12 months from now when we get a chance to go at this issue again. We were close last time.
▶ 0:33:17We lost a warrant requirement in a vote 212 to I'm going to do everything and I know the chairman is and I appreciate the ranking member's comments. We're going to do everything we can to make sure we have that warrant requirement. Here's the way it works in our country. You're an American citizen and the government wants to go look at your stuff. They got to go to a separate equal branch of government and get a warrant. It's pretty simple. That's what we want. Plain and simple and we were one vote away from passing it in the house.
▶ 0:33:46Who knows what would have happened in the But I know I'm committed. I know the chairman of the subcommittee is committed and the ranking member, I appreciate what he's done over the years in defending the Constitution, the Bill of Rights and we look forward to working with him on this issue. We need to do this to protect American citizens and stick with as the ranking member said. The way it's always worked. You want to look at someone's stuff? Go get a warrant. Go to a separate branch of government, get a warrant. That's how probable cause And here's the here's the other thing.
▶ 0:34:17We even put exceptions in there. Exigent circumstances, something really bad's going to happen or there you give permission because there's some cyber attack on you or your company. We put exceptions in there. We'll put them back in again. Sometimes I thought we put too many exceptions. We'll do it again but we got to win. We got to win this issue 12 months from now, April I forget the date in April, but it's April next year, and we got to make sure we win this. And I appreciate the chairman bringing our witnesses here.
▶ 0:34:44Thank you for coming and having this hearing on this very important fundamental fundamental issue for for the American people. I yield Gentleman yields back. Without objection, all other opening statements will be included in the record. We'll now introduce today's witnesses. First of all, Mr. James Czernowski. Mr. Czernowski is a senior policy analyst at Americans for Prosperity, where he focuses on issues surrounding technology and innovation. Prior to joining AFP, he was a technology and innovation policy analyst at the Libertas Institute.
▶ 0:35:14Mr. Phil Kiko is a principal at Williams & Jensen PLLC. He is a former chief administrative officer in the House of He has signed everybody here's checks at some point or another, and has served on a number of positions with members of Congress and committees, including the Judiciary Committee. He also served in the executive branch at the Interior Department and the Department of Education. Mr. Gene Schaerr is a partner at Schaerr Jeffrey LLP and serves as the general counsel at the Project for Privacy and Surveillance Accountability.
▶ 0:35:42The Project for Privacy and Surveillance Accountability advocates for greater protection for Americans' privacy rights and civil liberties in government surveillance programs. Mr. Kia Hamadanchi. Did I hit it? Hamadanchi. Hamadanchi. Okay. Very good. Mr. Hamadanchi is a senior policy counsel at the ACLU, where he focuses on civil liberties among other issues. He previously served as a House and Senate We welcome each of our witnesses and thank you for appearing today. We'll begin by swearing you in.
▶ 0:36:11Would you please rise and raise your right hand? Do each of you swear or affirm under penalty of perjury that the testimony you're about to give is true and correct to the best of your knowledge, information, and belief, so help you Let the record reflect that the witnesses have answered in the affirmative. Thank you, Mr. Meache. Be Your written testimony will be entered into the record in its entirety. Accordingly, we ask that you summarize your testimony in 5 minutes.
▶ 0:36:41We're going to go first to to you, Mr. Mranelski, and you may begin for your 5 minutes. Thank you, Mr. Chair, Ranking Member Raskin, and full full chair of the committee, Mr. Jordan, for holding this important hearing here today. This is an incredibly important topic, government surveillance of US citizens. This matter isn't just a question of policy or politics. It's a matter of of principle. Our founding fathers enshrined individual liberty and privacy as bedrock ideals of our Constitution.
▶ 0:37:13Yet, over the years, we have seen a surveillance state that only continues to expand, operating with limited accountability under the guise of national security. I do not believe that many would deny the importance of national security. Many, including myself, recognize that the world is a dangerous place and that there are people in this world that would seek to do harm to our great nation and its people. I would know this firsthand growing up in Queens, New York, and experiencing the terrible events and aftermath of a solemn day in American history that I will never forget.
▶ 0:37:43But, it was also a day that served as a catalyst for pushing our nation down this path of increased surveillance. However, while national security is important, it cannot and must not come at the expense of the very freedoms that define us. Looking back at history sends a stark warning of all the dangers in allowing an unchecked government too much power.
▶ 0:38:04Oftentimes, unfortunately, we know all too well well that granting such powers to the government can result in outcomes where that very power gets leveraged against the very people it was meant to Time and time again, we have caught the intelligence community with their hand in the constitutional cookie jar, if you will, as they use their spy powers to surveil Americans.
▶ 0:38:25And when questioned on their wrongdoing and what they're going to do to fix it, the agency, rather than taking the moment seriously and implementing significant changes, puts out platitudes and promises that it will never happen again. Until it does.
▶ 0:38:40One might take from this exercise that the agencies are seemingly more concerned with the notion of managing bad bad headlines than they are with the sanctity of Americans' privacy and constitutional protections against overreach and This repeated cycle of violations of Americans' rights, coupled with a lack of serious accountability, has led to a significant decline in public trust in the very institutions charged with keeping them safe.
▶ 0:39:06In December of 2024, CNN's Harry Enten was on air covering recent Gallup polling that found that support for the FBI in particular was at an all-time low, with just 41% of respondents thinking that the FBI is doing either an excellent or great job, representing an 18% drop in favorability in just 10 years. That is a damning indictment against one of the key agencies responsible for keeping Americans safe.
▶ 0:39:33When it comes to the question of what can be done to address this issue, particularly when it comes to FISA, there are a litany of great ideas floating out there. But here are three key ones I'd like to highlight for you here today. One, closing the backdoor search loophole. Number two, closing the data broker loophole. And lastly, strengthening third-party oversight at the FISA court.
▶ 0:39:55The key reforms I just highlighted here today will not end any surveillance that's going on right now, or prevent those authorities from being utilized to ensure our national security. But what they will do is ensure that the rights of Americans are not trampled on in the process of carrying out those duties. This is not a moment for complacency. This is a moment for action. We must reaffirm our commitment to the values that make our nation exceptional.
▶ 0:40:20We must demand policies that protect our privacy, uphold our liberty, and preserve the Constitution as the cornerstone of our democracy. As members of the committee with primary jurisdiction, you are in the position to shape policies that properly balance security with liberty, and to safeguard the very founding principles that make our nation worth protecting. Thank you for the opportunity to share our thoughts with you today, and I look forward to the conversation and answering any questions you may have. Thank you for your testimony, Mr. Hamdani.
▶ 0:40:48I recognize you now for your 5 Chairman Biggs and members of the subcommittee, thank you for the opportunity to testify today on behalf of the American Civil Liberties Union regarding the myriad of government surveillance programs that impact Americans of all backgrounds.
▶ 0:41:03At the start of my testimony, I want to express the optimism and hope of the ACLU that this subcommittee and this Congress can use the next 12 months to put into federal statute not only long overdue protections against the misuse of foreign surveillance authorities, but also protections for everyone across our country against the largely unaccountable surveillance state. A little more little over a year from now, Section 702 of the Foreign Intelligence Surveillance Act is scheduled to expire.
▶ 0:41:29While Section 702 requires that surveillance must be targeted at foreigners overseas, large quantities of communications that Americans exchange with people who abroad are also swept up and stored for future investigations. The FBI, NSA, and CIA then conduct searches of their Section 702 databases for the communications of Americans without having to demonstrate probable cause as the Fourth Amendment would otherwise require.
▶ 0:41:54Last Congress Last year, Congress reauthorized Section 702 for 2 years with the Reforming Intelligence and Securing America Act. While we await further reporting from the Intelligence Committee on the impact of its changes, there's one recent developments since since reauthorization I I like to note. In December, these District Court for the Eastern District of New York ruled in a criminal case that the warrantless searches the FBI conducted under Section 702 violated the Fourth Amendment.
▶ 0:42:21This ruling is the first of its kind and one of the rare cases where the criminal defendants have received notice of Section 702 surveillance. And while Section 702 is of particular importance to this subcommittee because it is an issue that Congress has no choice but what to address over the course of the next year, it is not the only form of government surveillance that raises concerns and I would like to briefly touch on a few related topics.
▶ 0:42:43First, as this subcommittee is familiar, in recent years, we have seen the ever-growing practice of law enforcement and intelligence agencies circumventing constitutional protections by purchasing access to data that they would otherwise need a warrant to obtain. According to former Deputy Director of the CIA, Michael Morell, quote, "The information that is available commercially would kind of knock your socks off.
▶ 0:43:04If we collected it using traditional intelligence methods, you would keep it top secret sensitive and you wouldn't put it in a database, you'd keep it in a safe." End The only way to ensure that protections against federal agencies circumventing the Fourth Amendment purchase by purchasing such a data is through legislation like the Fourth Amendment is not for sale, which passed the House Judiciary Committee last Congress without a single no vote.
▶ 0:43:30The second additional form of surveillance I'd like to highlight is reverse warrants such as reverse location or geofence warrants and reverse keyword warrants, which allow law enforcement to secure information that implicates large numbers of people who are not suspected of any wrongdoing. These broad suspicionless dragnet searches are deeply problematic and are tantamount to the Revolutionary War era general warrants that led our nation's founders prohibit their use through the adoption of the Fourth Amendment.
▶ 0:43:57As the Fifth Circuit Court of Appeals recently held that reverse location warrants are modern-day general warrants and are unconstitutional under the Fourth The next issue I'd like to highlight is cross-agency data linkages. On March 20th, President Trump issued Executive Order 14243, directing federal agencies to facilitate the sharing and consolidation of agency records with the stated goal of combating waste and fraud.
▶ 0:44:23However, the broad and unregulated access to sensitive data not only breaches privacy, but risks the creation of a database that creates a single searchable profile of every American without transparency or clear legal Without robust privacy protections, this could risk the eventual creation of a vast and unaccountable surveillance state capable of tracking every citizen's activities, movements, and associations.
▶ 0:44:49Finally, all these surveillance programs run the risk of being supercharged by the rapid growth and use of an artificial intelligence. This subcommittee should undertake a comprehensive review of AI technologies used for surveillance under its jurisdiction and assess their impact on privacy and civil liberties. This committee and this Congress have an unparalleled unparalleled opportunity over the next 12 months to protect all Americans by fundamentally reforming Section 702, starting with imposing a warrant requirement.
▶ 0:45:18We look forward to working with you and getting these long overdue reform reforms to the president's desk by next April. At the same time, we strongly urge this this committee to also address the massive and growing privacy problems for Americans raised by the broader surveillance ecosystem. Thank you. Chair now recognizes Mr. Quigley for his 5 minutes. Thank you, Chairman Biggs and distinguished members of Congress, including Chairman Jordan and Ranking Member Raskin.
▶ 0:45:47As you know, the Judiciary Committee has a long, distinguished, and complicated history with terrorism laws. I discussed the history and other legislative efforts in the testimony I delivered 2 years ago as an addendum to my written statement. The overreach of government agencies in FISA and using FISA authorities is well documented in Inspector General reports, FISA court opinions, and Congress's oversight work.
▶ 0:46:12As a backdrop, one must contend with internet-enabled platforms that connect almost everyone to an extraordinary complex digital world, which captures users' personal data, records likes and dislikes, preferences, and creates a profile for every digital user. Some firms compile and sell this data to third parties.
▶ 0:46:37Users consent to such dissemination of their of their data by signing lengthy Byzantine service terms of service agreements, and there are passive ways that data is collected as well, from facial recognition cameras to license plate readers that enable law enforcement to identify and investigate in the real world. The rise of AI makes all this more complicated.
▶ 0:47:04So, in a very real way, we live in a modern, albeit consensual, surveillance What is needed is the continued bipartisan oversight by this body to rein in and protect the guarantees of the Fourth Amendment. How do we do this? Well, one way is continued targeted legislative reforms that were accomplished in the previous Congress in HR 7888.
▶ 0:47:31Additionally, in an age where massive amounts of user data has been commercialized by data brokers, you should ask yourself, if the government obtain information from a company or third-party data broker, which ordinarily would require a determination of probable cause from a detached magistrate or judge, as the Fourth Amendment requires, and they obtain information by paying for it without that time-honored legal process, that undermines a crucial safeguard of
▶ 0:48:01civil liberty. And I would expect we can deal with that in the next reiteration of But legislative reforms are only half the battle. What is absolutely required here is continued vigorous targeted oversight by the legislative branch. Not passing laws, our oversight.
▶ 0:48:23And just as law enforcement is increasingly able to identify and indirect and interdict crime in a real-time, Congress's FISA oversight must also be in real-time. What does that mean? Congress must insist on timely disclosure of information. Through no fault of their own, committees have received information in response to reporting requirements that are months and sometimes year-old years-old. This information is useless.
▶ 0:48:52This after-the-fact approach can be problematic. The provisions of HR 7888 a valuable step in solving this problem, but this would only work if Congress receives timely access to the information. Audits must happen properly, information must be shared and uh Congress must be allowed real-time access.
▶ 0:49:17I would direct them and I all would also direct uh members' attention to section 18B of HR 7888, which requires the Director of National Intelligence to commission a study on technological enhancements for the FBI to monitor compliance of the Bureau's 702 information systems in near Could Congress use AI to modernize FBI's compliance with FISA?
▶ 0:49:45Consider something like this in the next iteration of FISA. And why couldn't Congress be entitled to access of that information on an ongoing or even rolling basis. AI would make that allowable. And of course, Congress must continue to include sunset provisions in the FISA uh reauthorization. The sunset provisions give Congress the leverage it needs to ensure compliance. In short, the short lease must be on the intelligence committee, not Congress.
▶ 0:50:14And I would also make a pitch where I I I believe that I think there are over a million people in the executive branch that have uh access to uh SCI clearances. And I just wonder how many people on the Judiciary Committee or how many people in Congress have access to those to do oversight. And I would I would just make a pitch to increase those clearances. In any event, I'm not someone that's hostile to a strong national security laws or federal enforcement.
▶ 0:50:45Congress should not appeal repeal 702. However, it's constant Congress's constitutional as Congress's constitutional entity closer to the people, it must continue its vital and constitutional oversight. And thank you again for the opportunity to testify. Thank you. Chairman Ranking Mr. Chairman, you for your 5 minutes. Thank you, Chairman Biggs. Thank you, Chairman Biggs and Ranking Member Raskin, my own Congressman.
▶ 0:51:13Um and uh Chairman Jordan and other members of the subcommittee. Uh and I commend my fellow panelists for their insights and their hard work on the issues that we're discussing today. Uh I serve as chair and general counsel of a non-partisan pro-privacy organization called the Project for Privacy and Surveillance Accountability, uh which is blessed to have your former chairman Bob Goodlatte as our senior Over the last 25 years in administrations of both parties, our nation has seen
▶ 0:51:43an expansion of privacy-destroying technologies and Key elements of a pan of a Panopticon style surveillance state coming together before our eyes. Uh one such element, of course, is FISA Section 702, mentioned repeatedly uh previously, uh in which the NSA's global troll routinely catches the communications of innocent Americans.
▶ 0:52:10Uh that program, of course, was uh the subject of the Reforming Intelligence and Securing America Act or FISA, uh which passed the Congress last year and which some have falsely claimed closed Section 702's loopholes. Uh but as as useful as FISA was, it left important work undone.
▶ 0:52:30To see why, recall that FISA primarily codified 702-related rules and procedures that the FBI itself adopted by early 2022, but the FBI failed even by its own standards when it conducted 204,000 warrantless searches for Americans' communications later in 2022.
▶ 0:52:50And a DOJ audit recorded a non-compliance rate, that is, a non-compliance with the procedures, rate of at least 3,400 civil rights violations a year, almost 10 per day. Uh those included a warrantless surveillance of a US senator, a state senator, and a state judge.
▶ 0:53:09And since FISA's passage in April 2024, the Director of National Intelligence has revealed additional improper searches, including the communications of a congressional candidate, a congressional chief of staff, numerous federal employees, and even the spouse of an applicant for a security clearance.
▶ 0:53:26Beyond 702 routine searches of sensitive data purchased from data brokers is at least as serious a threat to privacy, but is currently shrouded in even greater secrecy than 702 searches. And as abuses continue, the legal foundation for the FBI's warrantless searches under both of those programs is collapsing. Um as Mr.
▶ 0:53:51Hamedan Hamedanchi noted earlier in December uh building on a landmark Second Circuit ruling uh that that held that a search of the Section 702 database constitutes a search for Fourth Amendment purposes, a federal district court ruled that the government had violated the Fourth Amendment when it failed to obtain a warrant before conducting such a backdoor search of the 702 database.
▶ 0:54:16And absent absent an explicit warrant requirement written into statute for searching both 702 data and purchase data, we can expect that such abuses will continue. in the last Congress, this committee demonstrated that it's possible to erect useful guardrails to protect Americans' civil rights against such abuses.
▶ 0:54:41There's wide bipartisan support for and although the two warrant requirements that we've discussed earlier for 702 data and for purchase data ultimately did not become law, advancing them as far as you did was a tremendous legislative accomplishment. And with a YouGov a YouGov poll showing that at least 70% of Americans support these kinds of warrant requirements, you can now move forward with confidence.
▶ 0:55:08Uh yes, you can expect whispered opposition from some elements of the intelligence community or the IC, uh but your proposals last year, as Chairman Jordan mentioned, already answered their main objections.
▶ 0:55:22Uh an additional objection that that we've heard frequently is that the the IC will sometimes claim that a warrant requirement would require an additional army of F FBI attorneys and FISA judges, but again, your proposals have already answered to that uh using the FBI's own numbers spelled out in the exhibit that's attached to my written testimony. The Bureau would at most have to handle an average of three additional queries per day requiring a warrant.
▶ 0:55:51And that's not an overwhelming burden as former prosecutors like Mr. Nott can can confirm. And it's a small price to pay for increasing public confidence in the entire FISA system not to men not to mention complying with the Fourth Amendment. In short, this committee has already proven that you can protect both the constitutional rights of your constituents and keep them safe.
▶ 0:56:14And we urge the committee and to to uphold the Constitution by once again boldly advancing and then persuading your colleagues to adopt these two important warrant requirements. I thank you again for the opportunity to testify and look forward to your questions. Thank you so much. We will now proceed into the five-minute rule with questions. I now recognize the gentleman from Wisconsin, Mr. Tiffany. Thank you, Mr. Chairman. Mr. Chernesky, in your testimony, I'm going to read from it.
▶ 0:56:43It says, "RISA did little in the form of reforms while simultaneously dangerously expanding the scope of surveillance by changing the definition of what was considered an electronic communication provider." Could you expand on that a little bit? What are you talking about there that RISA actually did not solve the problem and may have made it worse?
▶ 0:57:08Thank you for the question, When we were looking at RISA last year as a part of the reforms, they included a provision in there that would expand the definition of an electronic communication service provider. Now, this used to be a more narrowly tailored thing to capture data, you know, from from these particularized companies, but the way that they expanded the definition would capture a wider array of of companies to virtually including everybody, right?
▶ 0:57:33and and so what you ended up seeing was from the Department of Defense or Justice rather they made a promise that like they were going to keep their their searches for this kind of data a lot more limited but again it is still problematic problematic enough that even the chair of the Senate Intel Committee Senator Warner committed to trying to get a fix to that unfortunately that still has not gotten done to date but this is a real serious threat if now virtually any anybody that has data on Americans could be subjected to being considered an electronic communication service provider.
▶ 0:58:02So we think the new leadership at the FBI is going to be better in terms of respecting people's constitutional rights. Should Congress just move on from this issue or should it Thank you for the question representative. I think that in light of the fact that administrations can change I would not want to leave it up for interpretation for a potential abuse underneath a a future administration.
▶ 0:58:28So I do think that Congress should act and go and fix this overly broad definition of an electronic communication service provider. Mr. Chair could you comment on the amendment that Mr. Biggs had in his bill allowed for limited exceptions yet we were being browbeaten saying that no you cannot do this you cannot pass the Biggs bill because there'll be no way out to be able to get a perhaps bad
▶ 0:58:58Um would you care to comment on that? Sure well and and a number of reasons were offered for that and and and my analysis is that it was all just fear mongering. I mean every every single objection that I heard was was just based on a misunderstanding of Mr. Biggs amendment.
▶ 0:59:17For example as Chairman Jordan mentioned earlier the amendment had an an an exigent circumstances exception so that if there were a ticking time bomb uh the uh the agency could act without getting a warrant. Um and of course uh the the amendment allowed for people to consent to to searches. So if the FBI thought that somebody was being the subject of a cyber attack for example, they could go to that person and say we think you may be the subject of a cyber attack.
▶ 0:59:46Could we search your communications so that we can find out who it is and try to forestall it and that person could could then consent and that's also a well recognized exception under the under the fourth amendment. So the committee very carefully and and Chairman Biggs very carefully built in the uh the protections that that that the um FBI might legitimately need to be able to conduct searches without a warrant.
▶ 1:00:12So the long and short of it, the Biggs amendment um dealt with what you termed the exigent circumstance. Yes, is that correct? It had an express exception exception for that and it also it it also exempted metadata searches. So So the FBI could actually look to see who is communicating with whom under Chairman Biggs' amendment. It just couldn't actually search the communications themselves. I want to ask you another question and I'm not sure if you're going to you let me know if you can answer it or not.
▶ 1:00:39In 2021, the FBI lawyer Kevin Clinesmith yes was sentenced to 12 months probation versus a typical five Um why was that? Well, it was an unfortunate slap on the wrist and I'm I'm separately representing Carter Page in his litigation against the department uh and and I thought it was an outrage that Clinesmith got such a such a low sentence for such an egregious act of dishonesty before the FISA court.
▶ 1:01:07Who was the judge in that FISA court case? I believe it was Judge Boasberg. Yeah, so uh Mr. Chairman, this is the uh same Judge Boasberg that we see regularly in the news these days. The ultimate insider judge here in Washington D.C.
▶ 1:01:23gives a slap on the wrist to Kevin Klein Smith who the information out there to the detriment of sounds like your client and now is doing everything he can to keep foreign alien criminals in the United States rather than sending them back home. I yield. Gentlemen yields. Chair recognizes the ranking member of the entire committee, Mr. Raskin. Thank you, Mr. Chairman.
▶ 1:01:49A lot of people were willing to give 702 a chance because of the various exceptions and amendments that were added to try to protect and insulate constitutional values, but and specifically there the fourth the fourth amendment requirement of uh of a search warrant.
▶ 1:02:08But what's happened in the meantime has taught me anyway that we should never condition respect for constitutional values on an expectation of the goodwill of political actors in the executive branch of government. Mr. Ahmad Anchi, a week after he took office, President Trump fired all the Democrats on the Privacy and Civil Liberties Oversight Board which we had created leaving it without the quorum necessary to do business.
▶ 1:02:36Can you tell us what the Privacy and Civil Liberties Oversight Board does or what it's supposed to do and why it is a basic defeat of the legislative design that it's no longer Yeah, so the Privacy and Civil Liberties Oversight Board is designed to report on the privacy and civil liberty implications of the surveillance and counterterrorism programs uh of the of the federal government.
▶ 1:03:01Um and it these members that have been fired, they actually demonstrated independence from the Biden administration in putting out a report that the Biden on 702 that the Biden administration very much disagreed with. Um and it's not a good thing for the president to be able to fire these independent board members who are meant to provide independent oversight cuz it chills their ability to provide that oversight if you think the president can fire you if you say something he doesn't like and that is why Congress actually removed from statute
▶ 1:03:31language that said the president could fire these board members. And and that's not a partisan thing as you just pointed out um the the framers of the Constitution expected anybody who got in as president to push the boundaries of his or her own power uh to the detriment of uh the other branches but essentially to the detriment of the citizens, right?
▶ 1:03:54Uh and so that's something we saw in the Biden administration as you pointed out and something that we're seeing right now with huge red flags in the Trump administration. And so we've got to write laws that uh insulate constitutional values against anybody who gets in uh to the uh executive branch. Um Do Does this board issue reports and Yes, when when they have a quorum they regularly issue reports. Last year they did a report on 702.
▶ 1:04:24They recently before the firings did a report on watch listing programs. Um and and and and and they regularly would issue reports when when they're when when they're able when they have a quorum. When they haven't had a quorum it's the PCLOB has been much less so there's no quorum, there are no reports, there are no recommendations, Congress is not getting the information we need to determine whether or not uh in this difficult terrain constitutional values are being protected against government overreach.
▶ 1:04:53So uh the I take it you agree with me that it was bad for civil liberties and constitutional rights that the president fired the Democrats on the board. Yes, I do. And Mr. Sherwood, do you agree with that? We would like to see PCLOB reconstituted as quickly as possible. Okay. Mr. Keiko, same question to you. The same. We would like to have it reconstituted as with the same kind of people that were there. And Mr. Trenosky? Same. Uh similar to them. Yes, we would like to see P.
▶ 1:05:22Clawson reinstated with full membership. Okay. Mr. Chair, um want to ask about the reforms that Congress did make to Section 702 last year when we reauthorized the FISA. Uh the bill mandated the FBI's National Security Division report to Congress the number of US person so-called backdoor searches conducted each month.
▶ 1:05:45That is uh as uh Chairman Jordan explained it, the the data is mopped up from all of the surveillance of foreign persons, but then since the theory is we're in lawful possession of the data, backdoor searches can exist for Americans. Um why is it important for us to know the number of backdoor searches that the FBI's conducting on a monthly basis? Well, for one thing, so that you can know the extent of the issue.
▶ 1:06:15The uh you can with the number, you can understand better the risk to Americans' privacy of the whole 702 system. And I think it also enables you to evaluate claims that are made either uh by the IC about the effect of additional reforms. I don't know how you can how you can act and respond respond to their arguments without knowing exactly how many people the FBI sending us before the new reporting requirements were put in? Uh my understanding is that it was pretty spotty.
▶ 1:06:45Yeah. Um And the additional reporting uh is going to require more staff and more support. And uh I previously learned from the National Security Division that they wanted 14 more people in order to comply with Congress's requirements. Not only have they frozen hiring, they removed the person who was responsible for managing all of the compliance and audits. So, what What that mean time has expired. Yeah, but if could just finish the sentence. Uh well, what does that mean for the new statutory language that we put in?
▶ 1:07:12Well, we we would certainly support staffing that that very important important function that NSA Chairman, uh without objection, Mr. Cline will be permitted to participate in today's hearing for the purpose of questioning the witness witnesses if a member yields time for that purpose. Chairman now recognizes the chairman of the whole committee, Mr. Jordan. Uh thank you, Mr. Chairman. Mr. Hamdani, what is the main argument the other side uses on the warrant requirement? We think there should be a warrant. They have an argument.
▶ 1:07:41Can you tell Can you tell the committee what that argument is? They they will typically say, "We have lawfully collected this information already, so we should be able to search through it." Um the Second Circuit has recognized that the search of a US person's data is a separate Fourth Amendment event that requires second a separate Fourth Amendment analysis. Yeah. I mean, that's their argument. Oh, we we followed the law. We were searching foreigners overseas for intel, right? That's what the law says they can do. And they said, "We followed the law, so now we can search the data for Americans." And that's the problem.
▶ 1:08:12And the And the court in New York just last year said, "No, no, no, you can't do that." The court said this. I mean, here's the fundamental question. Tell me if you agree. Should the government be allowed to do warrantless searches of the same information Section 702 says it's not allowed to collect. The court was very clear that they should not be able to do that. Right. The And the law says that. You're supposed to collect information on foreigners overseas for intelligence.
▶ 1:08:36And now there are people who say, "No, you don't need a warrant cuz we're going to do searches for Americans using their identifiers, their email, their phone number, their name." Well, that's not supposed to be in there. And the court said, "You can't have it both ways." That is what the other side wants. They want to have it both ways. And they can call it incidental. They can say we're doing a query, not really a search. That doesn't fly. And again, don't take our word for it. The court in New New said so December of last year. Is that right?
▶ 1:09:03Yes, and the court said like citing the second circuit that simple storage is not enough. And it cited I believe Riley versus California which gave gave the example of a a case where they had lawful possession of a cell phone, they still needed a warrant to be able to search the contents of that cell phone. Yeah, this is this is I mean we had the chairman knows. We spent a year debating this within our conference and with our friends on the other side last last Congress and then we're about ready to go back into this same darn fight for the next year.
▶ 1:09:32But this court decision, we didn't have that last year. And I I like the way they said it. They said um would be it would be paradoxically a paradoxical to permit warrantless searches of the same information that section 702 is specifically designed to avoid collecting. You're not supposed to collect information on Americans. But oh, we we did the search of foreigners and we got some so now we can search Americans. No, that that makes no sense.
▶ 1:09:58But that has been the argument year after year, Congress after Congress, and hopefully we can get to common sense and what the court said this Congress and say time out. Can't do it anymore and we'll still put the exceptions in for goodness sake. So to answer their their other argument, oh, there could be an emergency situation, imminent threat. Okay, fine. We don't want bad things to happen to America. Fine. You can do that. And if we can't get this passed, it is I don't know.
▶ 1:10:26I'm I was so frustrated cuz you know, losing beats uh or winning beats losing every time and a tie is a loss. And that's what we had last time and we we got to make sure we win this time, Mr. We need to make sure we win this time. I will yield my time to the either to the to the chairman or to Mr. Klein. I have minute 40 seconds left. Mr. Klein. Mr. Thank you. Mr.
▶ 1:10:53Kiko, if the government can't articulate how many Americans are being surveilled under Section 702? How can it claim the program is narrowly tailored to national security threats? If they can't articulate it, then they I won't say what they're doing. It's certainly not telling the truth. Is Is it really a national security risk to require a warrant to search the communications of Americans, especially if there's probable cause? No, it's not a national security risk. Everybody It's We collect all this incidental information.
▶ 1:11:23And you should have a You should have a warrant to to search it. That's not why it was collected. It was incidental. And as other witnesses said, there's other ways to to to check on this information without without like metadata and stuff like that. So, that's my opinion. Uh Mr.
▶ 1:11:42uh Serniakski, you've spoken about how government overreach in tech Uh so, how do we justify allowing the government to query vast databases of Americans' private communications without a warrant, especially when those queries are increasingly used in routine criminal investigations? To me? Uh yeah, thank you for the question, Representative. I don't think you can justify it.
▶ 1:12:01At the end of the day, when people discover that the government has violated their trust by violating their Fourth Amendment rights to search these vast databases for their communications, that that undermines their faith and trust in a key institution that they believe is supposed to be protecting them. And it's quite chilling for them to realize that that weapon is being turned inward and being leveraged against them to spy on them when they not necessarily done anything wrong.
▶ 1:12:25And ask the ACLU witness whose name I can't read on that on that Can you give us an update on the status of the decision? It was it appealed from the Second Circuit? So, so the decision was a district court decision. Um the the defendant lost on separate grounds. And so, it would have It actually be the defendant who has to appeal it, not not the government can't actually appeal that decision. And I'm not sure what the defendant plans on doing. Gentleman's time has expired. Chair recognizes the gentleman from New York, Mr. Goldman. Thank you, Mr. Chairman.
▶ 1:12:56I do look forward to having this debate as someone who spent 10 writing, drafting, and getting warrants through courts and recognizing also the exigent circumstances that often exist um with the 702 information.
▶ 1:13:17It is not as simple as uh my friend the chairman at the end would would have you believe and I I probably disagree with some of these some of the witnesses here today as well. But the problem I have with this hearing is this is an this is an important argument. Um but it pales in comparison to what's going on right now with Americans' privacy, with Americans' national security.
▶ 1:13:45Uh we're talking about whether there should be a warrant to search a uh certain amount of information lawfully collected from foreigners. It's not a broad set of information and yet you know, non-government employee uh Elon Musk is getting access to every single Americans' personal identification information.
▶ 1:14:14Every his uh employees uh some of whom have been uh who have already been found to have stolen information from one company to bring to another competitor are getting access to Americans' personal identification information, whether it be through the Social Security Administration, it be through uh the Department of Treasury.
▶ 1:14:37So, it feels like this hearing, while important, is somewhat misguided at this time when the privacy considerations of every American is at risk rather than a very narrowly tailored set of Americans who are communicating with foreigners who have who are suspected or potentially suspected of being involved in adversarial actions against the United The other thing that
▶ 1:15:07I would I want to bring up with with our friends here is the threat to national security. we're talking a lot about that in this hearing and obviously 702 is designed to protect our national security.
▶ 1:15:23Uh as many of you know, I'm sure, um last week, I believe it was, uh the NSA director, General Timothy Hawk, widely widely respected, uh a career national security official, overseeing the national uh the NSA, which is principally responsible for using Section 702 materials and gathering
▶ 1:15:53Section 702 materials, he was Do you know why he was fired, Mr. Um the reporting is that there were certain people who convinced the president, specifically Laura Loomer, that he should be fired. Laura Loomer.
▶ 1:16:09Yes, Laura Loomer uh went in and had a meeting with the president and urged that General Hawk should be fired because he was handpicked by General Mark Milley, who was the chairman of the Joint Chiefs of Staff in 2023 when Hawk uh was nominated to lead both the Cyber Command and the NSA.
▶ 1:16:30Now, this is the same Laura Loomer who says 9/11 was an inside job, who has openly advocated at a white nationalist conference that she is a white advocate, who said during the campaign that if Kamala Harris, who is half Indian, won that the quote the White House would smell like curry and White House speeches will be facilitated via a call center.
▶ 1:16:54Who has said that numerous mass shootings are all hoaxes and Uh who calls herself a proud Islamophobe and uh perpetuated the completely bogus conspiracy theory about Haitian immigrants in Ohio.
▶ 1:17:10And yet she is given access to the President of the United to make a national security coincidentally or not the next day How does this affect our national security, Mr.
▶ 1:17:27Hamdani, when a conspiracy theorist who is denounced by numerous Republicans is effectively making decisions about who oversees our most sensitive collection agency? So I think I think the first question is whether or not uh the NSA director was refused to follow any illegal orders. The reporting does not indicate that. Um the second question is is have there been any policy changes at the NSA since President Trump took office?
▶ 1:17:57That's something that this committee should look at. And the third question is who is the president going to replace the NSA director with if that person is unqualified, if that person has the potential for abuse to abuse to abuse the authority of the NSA? And that's something that Congress should weigh in if if that's the case. And I agree with you, Mr. Hamdani. I will I will if I could have just 1 second. No, you can't. I agree. I hope we do look into all of because that's far more important than Section 702 right at this minute. Thank you, Mr. Goldman.
▶ 1:18:25Chair now recognizes gentleman from Alabama, Mr. Moore. Uh thank you, Mr. Chairman. Um Mr. Chair, quick question. The Crossfire Hurricane investigation and subsequent surveillance of Carter Page revealed dysfunction and political bias, Obviously, on the part of the FBI leadership, but also it revealed problems with FISC. Is that correct? It did.
▶ 1:18:44Um it illustrated that FISC does not does not always examine the warrant applications under Title 1 with sufficient care, and that's one of the reasons that our organization, working with Senator Lee and many others, has has been pushing for reforms at the FISC that would allow amicus, friends of the court, to participate in important FISC proceedings to ensure that privacy is is protected.
▶ 1:19:08So, one of the reforms are there other reforms that you recommend to help as we work through this process of reauthorizing 702 that that we could put into the law that would help eliminate some of these abuses, and Lord, there have been a number of Well, the the amicus requirements were strengthened strengthened somewhat in FISA. I think they can be they can be strengthened still further.
▶ 1:19:30Uh FISA did contain a very useful provision in that it allowed the the chair and the ranking member of this committee, for example, to sit in on FISC proceedings so that there's more of a a window of transparency there. Um and and there's certainly FISC FISC needs additional staff.
▶ 1:19:47They need to have additional people who are who are cleared so that they can process uh their business more expeditiously, but I also in FISA and I think we put in the the the required the same judge to renew the application process. Is that Yes. And and and there were some other things too. I One of the things that the reason I was a no vote is uh I I thought there should be a warrant requirement. Would you agree with that? Absolutely. And so that was stripped out at the end, and that was tough vote for many of us.
▶ 1:20:15We wanted to do what we could to renew this thing, but uh when you got you know, when I came to DC, they wanted to issue me a a another government phone, and I and uh I said, "I think you just need to put everything on one phone." They're like, "Well, sir, if we do that, we're We're to know everything is on your phone." I thought to myself, like you don't already, right? So, as we're going through these hearings, we understand they're spying on you as citizens without warrants. And so, that was one of the things that I thought we absolutely needed to do.
▶ 1:20:40And what are improvements that Congress can consider to for fist on how it operates? Some other improvements as we're going through this process and None beyond those I've just mentioned. Okay, so very good. Mr. Chernasky, will you explain how the government has abused non-disclosure orders relating to the use of information obtained under Yeah, thank you for the question, representative.
▶ 1:21:03The government has utilized the information gathered underneath FISA in a numerous of instances to spy on Americans, whether that was spying on protesters during the Black Lives Matter riots or looking at the uh communications of 19,000 donors to a political campaign. The list goes on and on. And really, when when people see that revelation coming out after the fact, it does undermine their trust because they feel that the government now is starting to snoop back at them.
▶ 1:21:30That has a real chilling effect if now, simply because you want to support a now you could be subjected to the government surveillance. I think that that is a pretty unnerving kind of outcome for people to see kind of carry out. And even in this most recent iteration of the FISA reauthorization fight, to see that those surveillance authorities had been abused to spy on a sitting member of Congress, a sitting member of the Senate, it showed to me that the intelligence community seemingly had no no self-restraint on what they were willing to do in order to get access to whatever information they thought
▶ 1:22:00was necessary. And that's really alarming. Extremely alarming. And and and for those of us that one of the top issues was always the the weaponization of the government. And certainly, certain members were spied on. And like you said, members of Congress. And with that uh Mr. Chairman, I'll yield my remaining time to our friend Mr. Cline if he wants to take it. If not, I'll yield back to you. I appreciate the uh yielding. Mr.
▶ 1:22:26Kiko, um do you think you would support an independent audit of uh these queries conducted under 702? Yeah, I would support that. how else can we ensure meaningful congressional oversight when most of the relevant details are classified and shielded from public scrutiny? Well, I just think that I think there's there's a lot of requirements that that are already in the law.
▶ 1:22:52And I just would would hope that um that the requirements are adhered to in a very quick manner. The audits are done very in a very quick manner and the and requirements are audited in the next year.
▶ 1:23:09So, if they're not complied with, then you can deal with that through the next reauthorization, but I do think that you know, the IG was very good in in in coming up with all the all the problems and everything and the Congress responded to, you know, 15 or 20, you know, requirements and but it's basically basically oversight is is you have to bring the intelligence community to heel. Thank you. Gentleman's time has expired.
▶ 1:23:39Now I recognize the gentleman from California, Mr. Kelly, for 5 minutes. Thank you, Mr. Chair. I think it's important to to note at the outset the successes that we did have in the last Congress in reauthorizing FISA for the protection of America and American national security while instituting some truly significant reforms, which were developed through the painstaking work of this committee and in a bipartisan way in a committee that's not always known for its spirit of
▶ 1:24:09Kumbaya bipartisanship. We were able to find a lot of common in protecting civil liberties without burdening the ability of our national security officials to protect Americans. However, there is, as Chairman Jordan noted, more work to do. But I do think it's important to look at what was done in the bill that was signed into law in the last Congress.
▶ 1:24:34We had reforms that included new and heightened civil and criminal penalties for those who violate the terms of the FISA authorities, and it required reporting on FBI disciplinary investigations. It requires the FBI to establish minimum accountability standards for violations of the querying process. The bill significantly reduced the number of FBI personnel authorized to approve approved queries, required audits of US person queries, and included increased transparency measures among other important reforms.
▶ 1:25:03So I think there is a a broader question here, though, when it comes to the pace at which we are seeing technology develop and the new-found opportunities that that opens up for very problematic violations of privacy or uses of surveillance.
▶ 1:25:22But then at the same time, the opportunities to perhaps use that technology not only to advance national security and public safety, but to do so in a more narrowly tailored way. So advances in AI are an example of that, where there are obviously a host an unlimited variety of potentially problematic uses by those are entrusted with the power to investigate American citizens.
▶ 1:25:52But then there are also already a number of very positive proven use cases. so my thought, and I'll maybe direct this at you, Mr. Hamdani, is on how we can harness this technology in the right way going forward.
▶ 1:26:08You gave an example, I think, of how there was one police agency in Florida that or maybe this was this is this was you, but I I so either you can weigh in on it, but that used an algorithm to try to predict where crimes were more likely to occur, and that seems like it actually could be helpful if it allows us to allocate police resources in the right way, but maybe unhelpful if it leads to you know, people being targeted prematurely or in a way that violates their civil liberties.
▶ 1:26:37So, I I guess I'll give either of you an opportunity to opine on that. Maybe we'll start with Mr. Ahmadanchi and then since I misremembered who actually gave this example, I'll give you the opportunity as well. I would say we're definitely concerned about the use of AI in in surveillance. And and more than 4 years ago, we had a report where intelligence agencies were saying they want to embed AI in every stage of the intelligence And the NSA stands out in this context because it has described itself as a leader in integrating AI into intelligence gathering.
▶ 1:27:07And there are real concerns that AI is being used to automate target selection and potentially initiating surveillance without adequate human review. And that's something the the committee should look into as as it considers these issues. Thank you for the question, Representative. I think that it is incredibly important. As you rightly know, artificial intelligence is a tool. It's a pretty neutral, values-neutral kind of thing. It depends on who's using it as to whether that whether or not that can be used for good or for bad.
▶ 1:27:34And it's really unfortunate when we see instances like what happened in Florida where they were using AI to develop this algorithm to identify prolific offenders and then give them, you know, community visits. One such person ended up in the hospital with symptoms of an anxiety attack because of the the presence of law enforcement coming up and showing up on their door. You can imagine that that is a very frightening experience for some people. So, I think that it just reinforces the need.
▶ 1:28:00I don't want to go and take away a tool from law enforcement from being able to leverage a tool like artificial intelligence or or other technologies that are out there, but I do think that it's important to make sure that if they're going to be using it, that we have proper rules and guidelines and procedures in place to minimize the potential downside here because when the state does leverage these technologies and they get it wrong, the costs are really high both for the city that ultimately bears the responsibility of the legal action that follows and for the the victims in that case.
▶ 1:28:27So, I think that there's a really good conversation to be had about what we can do to go and better set guardrails around this so that law enforcement doesn't lose access to critical tools that can help them with their public safety functions while simultaneously protecting people's uh fundamental rights.
▶ 1:28:40Yeah, and I'll add to that uh that this getting this right is really important not just for protecting uh civil liberties in the first instance, but also because there are so many uh truly beneficial applications of AI in this and other contexts and that if we don't get these threshold questions right for protections, then it could lead to a backlash that uh undoes those possibilities. And uh without I'll yield back to the chair. Thanks. I thank the gentleman. Chair recognizes now the gentlelady from Florida, Ms. Lee. Thank you, Mr.
▶ 1:29:09Chairman, for convening this important hearing. Thank you to our witnesses who have joined us today to provide testimony. This committee remains committed to restoring public trust in our federal law enforcement agencies and a critical part of that involves holding open informed conversations with experts like yourself to identify areas of proposed reform and change that we can then use to inform our work in collaboration with the intelligence community.
▶ 1:29:36Last Congress, I was proud to lead the FISA bill that we've been discussing here today, which made significant reforms to how our federal law enforcement agencies handle, collect, and retain critical intelligence. This legislation was an important first step in our broader effort to rebuild confidence in the intelligence community and to keep America secure.
▶ 1:30:01There's no question that the abuses that we have seen, particularly in the FBI's handling of Section 702 information are deeply troubling and the surveillance unauthorized or unlawful of American citizens must be stopped. It should not have happened and it must not happen going forward, which is why accountability and transparency and the things that we are discussing here today are so important.
▶ 1:30:26But it is also important that any discussion that we have about 702 include a recognition of why we have it and why it exists and that this is a vital part of our country's intelligence gathering capabilities. It is an essential component of what we do and it is necessary that this conversation center on how we make it better, how we ensure accountability and transparency without dismantling it.
▶ 1:30:55With that in mind, uh I appreciate your efforts to help us strike that balance and identify where we can further improve and strengthen FISA overall and Section 702 in Mr.
▶ 1:31:11Sure, I would like to start with you and in particular return to the discussion you were just having about the FISC and some of the report reforms that we implemented uh in the FISC uh to ensure a greater level of accountability and a prevention of some of the abuses that we've seen in the past. In particular, as you know, the FISA bill uh inclusion of a more adversarial process for FISC proceedings. You just mentioned you thought we could do more there with the Amici.
▶ 1:31:41I would love to hear more about your thoughts about how that program could be further enhanced. My My recollection of FISA is that and and and I agree with I agree with you uh Congresswoman Lee that that there were some very useful reforms in FISA and and we should look to build on those uh rather than tear tear them down, but I I one with respect to Amici in the FISA court, I think that one limitation is that currently Amici are only appointed if the judge decides that that
▶ 1:32:11an Amicus would be helpful. And so that obviously leaves the the FISC judge with lots of discretion as to whether appoint whether to appoint an Amicus. I would we would prefer to see that expanded somewhat so that there's a category of cases where the judges are expected to appoint Amici.
▶ 1:32:29For example, cases that obviously involve uh you know, sensitive political issues or religious issues like the FBI's investigation of the traditionalist Catholics down in Richmond last year or a couple of years ago. Those kinds of situations you can and you can identify categories of situations where an Amicus at least presumptively should be appointed.
▶ 1:32:54And and if if an Amicus is not going to be appointed then the judge should have to explain why not. And I would note a couple of additional reforms we made specifically in the FISC that were targeted to prevent some of the past abuses we've seen. One, a requirement that exculpatory evidence be included in an application before the FISC. And second, also that opposition research could not be the basis for granting of a warrant by the FISC.
▶ 1:33:21Are there other things that you think first off, do you find those reforms to be something that was productive and useful? And second, are there other things you think we should get at or address there with the FISC? Absolutely. Those were those were important reforms for sure.
▶ 1:33:39I think one additional thing that would be that would be very useful is to provide create a system whereby people whose whose rights are abused in the FISC court, for example, the like the Kevin KleinSmith situation, make clear in the law that people who are victims of that are entitled to compensation when that happens. That will not only be fair to those people, but also will will provide an added deterrent to abuse. Thank you, Mr. Chairman. My time is expired.
▶ 1:34:09Thank the gentle lady. The chair now recognizes the gentleman from North Carolina, Mr. Budd. Thank you, Mr. Chairman. Thank you for having this hearing. To all of the the members and the guests, thank you for your participation. Um I come at this this uh this line of questions from my own experience as a as a federal I have act actually engaged in surveillance of American citizens uh through a process called the Title III wiretap.
▶ 1:34:37And the level of protections that are required to get to the actual flipping of the switch it's it's uh fairly astounding. Obviously, it's one of the more intrusive uh investigative techniques. So, you have to demonstrate necessity. You have to demonstrate why other techniques are futile. Um and uh once we would go to trial or once we would charge the case, the rigor that we had to exercise was very important for a number of reasons.
▶ 1:35:02It was uh obviously, it kept the internal investigators It kept the process uh once we were uh the investigation was ongoing, it kept it open and honest. They knew that their actions were going to be subject to pen and paper. They were going to be subject to judicial review, and then obviously with opposing counsel, they would review it. Uh but also, when we would go to court and if there was a jury trial, the jury themselves would know these actions, this evidence was collected with sufficient predication.
▶ 1:35:33And uh I do find it somewhat um I would say I don't want to say troubling yet, but it is amazing to me that there's so much resistance to the warrant requirement alone. Um and in that vein, with the Title III wiretap on one side, I'm very familiar with how the evidence is collected, how it's stored, how it's accessed. Mr.
▶ 1:35:56Trasky, if you could explain with the 702 program and the FISA court, how is the data that's collected under that subsection, how is it again collected, stored, and then accessed? Uh thank you. sense, just just tactically and and on a in a physical server, like how how is it is it collected and stored and accessed? Yeah, so it is stored on on a secure server. Um and the backdoor the backdoor search loophole is I think what really is why this is so important, right?
▶ 1:36:25Because this is basically allowing the government's ability to search the communications that they've incidentally collected or as Chair Jordan has referred to it incidental collection of Americans information during the surveillance of foreign targets all without a warrant, right? Right. So this warrant requirement that we've been advocating for adds that necessary layer of protection because as you pointed out, as we're we're using warrants basically as a procedural matter of demonstrating like why we got to where we got.
▶ 1:36:53And that's really important that when we're talking about foreigners, like that's that's fine if we're going to go and engage in surveillance, but once those surveillance powers turn inward and we're trying to tap into that data that we have collected, that we have that warrant process carried out so that way we have due process. When that much when that much information is readily available, Yeah. the natural trend throughout history regardless of who's in power, obviously people on my side of the aisle are very are very distrustful given what happened with President Trump. Yeah. But there've been conservative abuses uh when we're in power without question. Absolutely.
▶ 1:37:22Uh and in regards to to that information, how easy is it to access once it's once it's collected? It's it's fairly easy for for people to go and access that and that's why we've seen through the litany of abuses as as to why that information needs to have a better tighten control. Now, admittedly as Representative Lee was talking about, they've done some limited changes in in in FISA to go and talk about what kinds of members of the FBI can go and query that data, um but we believe that that's still not sufficient.
▶ 1:37:49This is why we want that warrant requirement so that way we can have that procedural accountability of who's tapping into it and and be able to have that necessary Is there any way with the current technology infrastructure to determine how often that material is accessed and by whom? Um right now I think that it is a it is a challenge in its own right uh because we don't have full transparency into who's querying it. problem. It's a massive problem. problem. Yes, absolutely, Representative. Um Mr.
▶ 1:38:16Chair, let me talk to you real quickly in regards to uh you mentioned earlier that you work with Carter Page. That obviously highlights a lot of abuses again for political purposes, right? Which is what the Fourth Amendment is designed in part to protect against.
▶ 1:38:29Um what what type of penalties, what type of um deterrents are there for the law enforcement community if they abuse the 702 access and information Well, currently there's for one thing there's no personal liability Yep. if somebody abuses that that system. Uh there's only the potential for liability against the government itself if you can if you can jump through the necessary hoops.
▶ 1:38:57But given how opaque this process is, that's very hard to to build a case It's very difficult. Yes. I mean, the Title III wiretap affidavit, if you lie, if you submit false information, you'll be charged, you could lose your bar license, etc. Right. And and we don't yet have those those kinds of protections in the uh in the 702 area. We've we moved a lot closer to them with RISAA, but Well, I could go a lot longer, but Mr. Chair, 5 minutes goes very fast.
▶ 1:39:27Yeah, thank thanks uh gentlemen, it's time's expired. I now yield to myself 5 minutes. So, uh I like all of you, I want to see back up and running, uh I'll ask you, Mr. Hemoudachi, This the first time that we've been without a quorum on PCLOB. It is not. Yeah. Yeah. It's not. Um we need to get it up and running as quickly as possible, but it's not This isn't necessarily unique. Um it needs to get fixed, though.
▶ 1:39:55Um I want to ask you a question because you you responded, and I'm going to tell you what how I interpreted your answer. You were um why uh why the firing took place. Um and you said uh it was reported that Laura Loomer recommended that. I interpret that as meaning that you're like me. I don't know why he was fired. Yeah, I I only know the reports that I read. Um and I will say that there's there's a difference, I think, also between a job like the NSA where the president has the authority to fire someone.
▶ 1:40:24Where with with PCLOB, that's an independent oversight board. The president should not be able to fire those board members. But he currently has the authority now, but yeah. Maybe maybe some reform there is what you're suggesting. Well, so so we we would argue that he did not have the authority to fire Okay. All right. Fair enough. So, I want to I'm going to go on here. Mr. Chair, um you reported that there was You indicated there was some reported abuse, even perhaps post-FISA. Can you give us an idea?
▶ 1:40:55Yes, and and and that's from a that's from an ODNI report Right. uh from from after FISA was passed that described uh a a number of additional abuses, congressional staffers and and a number of federal employees and even the even the spouse of somebody who is who had requested a security clearance. It's remarkable um because FISA was supposed to take care of probably that very kind of thing Right.
▶ 1:41:24and failed to do so, which is indicated indicative that we need to do Mr. Kiko, um so I would venture to say and and I the chair is gone, but the ranker is still here. Uh FISA allowed for the chair and the and the ranker to attend FISC hearings. Um, my guess is that they haven't been able to actually we've got a busy schedule, so probably did not get to do that. We actually were trying to get that expanded.
▶ 1:41:52If those of you who are participating with us, so there would be more members of Congress who could actually get there. Do you know if if the chairman or the ranker have been able to to actually attend a FISC hearing? No, I do not. And and you indicated there should be some more oversight. How how how do we get more vigorous oversight in in a short shortened answer? How would you how would you say we do that? I I would just Um, you need to microphone, please. Yeah, I see that.
▶ 1:42:19I would I would just have meetings you know, all the time. I I would uh have somebody whoever is your is your oversight person call these people up and say, "Where are you on this?" Give a give a report cuz there's you know, there's 15 or 20 requirements that are new requirements in Rissa. And you you should you should you should hold their feet to the fire and get in coordination with the with the Inspector Generals and have and have a whole bunch of stuff done that way.
▶ 1:42:50But I but I did mention in my testimony though, there was a there was a requirement for one of the intelligence agencies to use, I think it was the FBI, AI to make sure that there is compliance. Right. And I don't know why this body your committee shouldn't be able to real time make sure that there is compliance and what does that compliance look like?
▶ 1:43:17And and just make sure that they are complying with everything cuz you're going to be reauthorizing the bill you know, in a year. I agree with you. We need to be more vigorous in oversight for definitely and for sure. Mr. Charnesky um the warrant requirement and um Mr. Nutt alluded to this a- and a lot of people think that's just too onerous to to get.
▶ 1:43:43But, uh with the recent court ruling, but beyond if there are exigencies in there, do we miss any exigencies, any any exceptions when we put together the amendment to uh to the proposed bill last year? Thank you for the question, uh Mr. Chair.
▶ 1:44:02And I believe that the the warrant uh the exceptions to the warrant amendments that you put together during the last Congress were uh quite robust in terms of providing the needed flexibility for the agencies to conduct their their surveillance uh without necessarily needing to worry about that. Um so, I think that you did a very good job with that, sir. I thank you. I I I I would say that I'm I'm where Chairman Jordan is. I thought I thought we actually opened the door up too wide, uh broader than you would have in a normal Fourth Amendment exigency circumstance.
▶ 1:44:32But, uh n- needless to say, we're going to work on this. I appreciate all of you being here today. I appreciate your testimony. And uh I think more reforms ahead, to be frank with frank with you. And so, with that, thank you all, and we're