▶ 0:19:46Chair Grassley: In less than three months a vital national security tool our intelligence community relies on very heavily is set to expire without congressional action. That tool is section 702. 702 makes up an estimated 60% of the president's daily briefing.
▶ 0:20:17Chair Grassley: Our government has used this tool to combat hacking and drug threats from foreign countries like china. In recent years 702 is also put a stop to terror plots that harm americans at home and abroad and empowers us to take the fight overseas.
▶ 0:20:40Chair Grassley: As cyber threats to our critical infrastructure become more dangerous, 702 remains a valuable tool to stop these attacks before they happen. At the outset, I want to be clear about two compatible truths.
▶ 0:21:01Chair Grassley: First, fisa section 702 is an essential national security and intelligence tool used to keep americans safe. Second, constant congressional oversight and vigilance is also essential to ensure this authority is exercised responsibly.
▶ 0:21:26Chair Grassley: We tried during the last authorization to ensure the executive branch is held properly accountable but more accountability is demanded. Our intelligence community uses section 702 every day to protect americans. That use is squarely in line with the government's primary responsibility to defend the american people.
▶ 0:21:58Chair Grassley: I have also expressed concerns about fisa's reach more broadly. I know many of us in congress have worked hard to strike a legislative balance. Again I say today there is still more work to be done.
▶ 0:22:17Chair Grassley: The department of justice starting under president biden, despite the clear language of congress is last lee authorization -- of congress' last reauthorization has not allowed us into the intelligence courts despite statutory mandate to do just that.
▶ 0:22:44Chair Grassley: I am astonished that the trump administration has continued this misguided biden era policy. Senator durbin and I wrote to attorney general bondi concerning the departments so-called procedures drafted by former assistant attorney general matt olson. We have yet to receive a meaningful response.
▶ 0:23:10Chair Grassley: The department cannot restrict congress from exercising our statutory oversight authority over the fisa process, a process which congress itself established in 1978.
▶ 0:23:28Chair Grassley: As a result, any reauthorization should demand these procedures be revoked and congress as the article one branch shall be able to exercise oversight authority without obstacle. Other reforms from the last reauthorization have been very successful.
▶ 0:23:56Chair Grassley: The querying of united states persons while already rare has significantly decreased with over 100% compliance following the implementation of the most recent safeguards. The more recent errors we have seed by the fbi have been overwhelmingly clerical and not ones of bad faith.
▶ 0:24:23Chair Grassley: In short congress' reforms in 702 are making a difference. Once again I say, however, the government's record with fisa more broadly is far from perfect. By now we are all familiar with the fisa abuses against former trump campaign advisor carter page.
▶ 0:24:52Chair Grassley: The abuses against page happened under title I of fisa. Whenever we talk about fisa we hear a lot about warrants. When the fbi surveilled page the agent obtained several warrants.
▶ 0:25:16Chair Grassley: Now because of my oversight work and agency reviews, we know these warrants were invalid and did not follow proper procedures because the law as it stands does not provide a clear remedy. The D.C. circuit judge's mist p -- the D.C. circuit dis missed page's lawsuit.
▶ 0:25:45Chair Grassley: Folks improperly surveilled under fisa are without recourse. United states citizen should not be subject to invalid warrants to begin with and when they are subject to those invalid warrants there ought to be some kind of remedy. We also ought to give congress a roll in the appointment process.
▶ 0:26:12Chair Grassley: Right now the four engine -- the foreign intelligence surveillance courts pick their own amicus. The roster contains people with deeply services -- with deeply concerning partisan ties. Amica in these courts are supposed to be balanced in the proceedings and as such they need to be nonpartisan.
▶ 0:26:40Chair Grassley: Moreover, whistleblowers from the intelligence committee should be limited to providing protected disclosures to just intelligence committees. Whether whistleblowers want to disclose classified or unclassified information, they should have the ability to speak to other congressional committees.
▶ 0:27:02Chair Grassley: This judicial committee has broad jurisdictional reach into the intelligence community and for many years I have worked with the intelligence community whistleblowers, making whistleblower laws even more clear is a priority.
▶ 0:27:19Chair Grassley: I look forward to hearing from the experts joining us today on the necessity of the 702 program as well as areas where congress should improve transparency and oversight without frustrating the importance of fisa's purpose , which is to protect the american people.
▶ 0:27:41Sen. Durbin: Thanks for holding this hearing. In less than three months 702 will expire or it as a committee with jurisdiction over fisa we have responsibility to conduct oversight and craft solutions that protect security and the constitutional rights of americans. Given this responsibility I am disappointed that we do not have any witness from the trump administration testifying today.
▶ 0:28:08Sen. Durbin: Members of this committee should be allowed to publicly question executive branch officials regarding their use of the sweeping authority, especially for warrantless surveillance of americans. That is why when I served as chairman of this committee I convene a hearing of senior officials from the biden administration so they could be interrogated publicly in the public could hear their answers. The failure of the trump administration to appear before this committee on important issues is a troubling pattern that must end.
▶ 0:28:39Sen. Durbin: I've been calling on secretary kristi noem to answer for the lawless and inhumane reign of terror her agency has unleashed on america. Secretary noem has such a busy schedule she was unable to come before this committee and the last calendar year. Now she said she might find time in her schedule to join us in five weeks. What will happen in minneapolis in the next five weeks? It is a legitimate question.
▶ 0:29:10Sen. Durbin: With the trump administration challenging our constitutional rights and section seven how to just three months of and section 702 just three months -- section 702 grew up under a secret warrantless surveillance program under the bush administration.
▶ 0:29:28Sen. Durbin: When the program was exposed congress responded by partly authorizing the authority known as 702 that allows the government to collect information on foreigners without a warrant or court order with the purpose of collecting foreign intelligence.
▶ 0:29:49Sen. Durbin: There is no doubt section 702 is valuable although for years the government has used it as a domestic spying tool to collect millions of americans private communications. Searching our text messages, listening to our phone call all without a warrant.
▶ 0:30:12Sen. Durbin: Section 702 has been abused to spy on business and religious leaders, political parties, members of congress, campaign donors, and political protesters of all stripes. In passing the reform intelligence and securing american act in april 2024 congress codified to reduce these abuses. Risa also weakened other safeguards and expanded the scope of 702.
▶ 0:30:42Sen. Durbin: It is my view when 702 was authorized in 2008 and it remains my view that this section does not contain sufficient safeguards to protect the privacy and civil liberties of americans. That is why since the first reauthorization of fisa I worked on a bipartisan basis with senator lee and we continue to work together to require a warrant for the search of any american communications.
▶ 0:31:09Sen. Durbin: I urge my colleagues to join our effort and I look forward to working with the chairman to ensure congress does not fail the american people. >> the chairman has asked me to introduce the minority witness and I'm sorry have to leave after I do that. It is my pleasure to introduce liza goitein. Ms.
▶ 0:31:36Sen. Durbin: Goitein's senior director of the berlin senator for justice, liberty -- of the brennan center for justice, liberty, national security and seeks to advance effective national security policies that respect constitutional values and rule of law. She is a nationally recognized expert on emergency powers in government surveillance and secrecy. She has testified before this committee before.
▶ 0:32:04Sen. Durbin: She graduated yale law school and was the clerk of the court of U.S. appeals for the ninth circuit.
▶ 0:32:10Chair Grassley: Thank you senator durbin and welcome professor goitein. I would like to introduce Mr. stewart baker. Mr. baker has extensive experience in government and the private sector including as a law clerk to the U.S. supreme court justice john paul stevens. Mr.
▶ 0:32:33Chair Grassley: Baker also served as general counsel to the national security agency from 1992 to 1994 and later as first assistant secretary for policy at the department of homeland security. Mr. baker testified before the september 11 commission on intelligence and law enforcement issues. His expertise in this area x and particularly qualified to testify today.
▶ 0:33:09Chair Grassley: And then professor adam klein is the subject matter expert on counterterrorism intelligence and government surveillance. He currently serves as the director of the robert strauss center for international security and law at the university of texas. Mr.
▶ 0:33:27Chair Grassley: Klein previously served as chairman of the united states privacy and civil liberties oversight board, where he conducted oversight of the intelligence community, including action 702. -- including section 702. Mr. klein served as a law clerk to U.S.
▶ 0:33:49Chair Grassley: Supreme court justice glia and judge brett kavanaugh when kavanaugh was still on the circuit. His policy expertise are an asset to this discussion. I would like to make a comment that would follow up on the administration not being here to testify. Congress is in article one branch of government.
▶ 0:34:17Chair Grassley: This essential program is set to expire in a few months and it is our job to reauthorize it. Today we are hearing from experts with guy pearce views and up -- with diverse views and experience including government experience directly relevant to the program. I am offering rick -- I am offering legislation and holding this hearing. Congress set the reauthorization clock and the last passed in 2024 and we need to meet our own timeline.
▶ 0:34:47Chair Grassley: If the administration would like to brief us in an open or closed setting I will help or to set it up. In the meantime the senate judiciary committee needs to move ahead. We will start with baker and then goitein and then klein.
▶ 0:35:05Mr. Baker: Thank you Mr. chairman and members of the committee. I especially want to thank my wife and neighbors who helped me dig out and get here today. I would not have missed it in a matter how hard it was to get here. I have a lot of history on this issue going back to the 1990's.
▶ 0:35:29Mr. Baker: I was present when the wall first made its appearance between law enforcement and intelligence and it was eerily familiar to those of us who are participating in this debate. The arguments was fisa's are easy to get and it will become a backdoor on doing law enforcement work and we should not allow law enforcement use of fisa materials and that led to a wall between law enforcement intelligence designed to appease those critics even though there
▶ 0:36:00Mr. Baker: Had not been any obvious abuses. That wall got higher and higher in the enforcement measures got tougher and tougher until in the summer of 2001 the fisa court imposed career ending sanctions on fbi agent who had stepped over the line and impinged on the wall.
▶ 0:36:25Mr. Baker: That made an enormous difference in how people handle intelligence related to terrorism and when the intelligence community found the door al qaeda operatives within the united states -- found that there were al qaeda operatives within the united states getting ready to carry out an attack, there was a plea to say we need to be able to use the law enforcement task force that the fbi has set up to try to find these people. They had three weeks to find them.
▶ 0:36:56Mr. Baker: This was in august they got the intelligence and they were not allowed to tell the law enforcement side of the fbi which was 98% of the fbi that this had happened. These guys were in the phone book in san diego. They could have been found in three weeks. We never found them until they flew their plane into the pentagon and twin towers. I never want to live through that kind of mistake again.
▶ 0:37:28Mr. Baker: It feels as though we are walking down the same road today. We are demanding evermore from the fbi in 702 queries and imposing harsher sanctions on fbi agent's. We will make 702 toxic. It has gone from 2.9 million queries which was certainly excessive to 5500.
▶ 0:37:54Mr. Baker: The justice department has said there is a lot of reason to believe the legitimate queries are being deterred. This is not a good situation with a tool like this. If I can just suggest two things that I would urge on this committee.
▶ 0:38:18Mr. Baker: First, a lot of these demands for ever higher and ever tougher standards for queries comes from the fact that every couple of years everybody gets a free shot and gets to threaten the program if there amendments are not adopted.
▶ 0:38:38Mr. Baker: We have had renewals under two republican presidents, two democratic presidents with democratic and republican majorities in congress. I think it is time to say let's stop putting a sunset on 702.
▶ 0:38:59Mr. Baker: It is only putting our most valuable security tool up for grabs every couple of years and then praying there is enough bipartisan spirit in the congress to do what needs to be done. You don't have to be a political genius to realize that bipartisan spirit is a lot harder to find now that it was five years ago, 10 years ago, 20 years ago.
▶ 0:39:29Mr. Baker: Why would we say we will count on that spirit showing up again and again to keep this program alive? It is time to make it permanent. I would urge you to do so. [inaudible]
▶ 0:40:09Ms. Goitein: Chairman grassley, ranking member durbin and members of the committee, thank you for the opportunity to testify. Congress passed 702 to enhance the government's capacity to conduct surveillance of foreign terror lists. To date -- of foreign terrorists. Today it is used a range of threats including cyber attacks and fentanyl trafficking. If that is all section 702 were used for we would not be here today.
▶ 0:40:40Ms. Goitein: The reason the authority is so controversial is because it has been a rich source of warrantless access to american communications. How did this happen? Under section 702 the government can target any foreigner overseas and collect all of their communications without an individualized court order. This surveillance inevitably sweeps and americans communications and large amounts because americans communicate with foreigners.
▶ 0:41:09Ms. Goitein: Because the foreign target need not be suspected of any wrongdoing, these communications can include entirely innocent conversations between americans and their friends, colleagues, and family members overseas, a point emphasized by the privacy and civil liberties board in the 2023 report.
▶ 0:41:28Ms. Goitein: If the government's intent were to spy on these americans it would have to get a probable cause order, either a criminal warrant in a criminal investigation or a fisa order in a foreign intelligence investigation. The government gets around this requirement by certifying to the fisa court it is not using section 700 two to access the communications of particular known americans.
▶ 0:41:55Ms. Goitein: As soon as the data is in their hands all of agencies that receive section 702 data routinely conduct warrantless electronic searches for the communications of particular known americans. This is a bait and switch that drives a massive hole through the fourth amendment and fisa. In 2023, the last year for which we might have complete information, the fbi conducted 57,000 of these backdoor searches.
▶ 0:42:25Ms. Goitein: Congress and the fisa court have attempted to place limits on this practice but the fbi has engaged in persistent and widespread violations of these limits according to the fisa court. These violations have included searches for the communications of members of congress, protesters across the political spectrum, 19,000 donors to a single congressional campaign, and multiple U.S. government officials and political commentators.
▶ 0:42:52Ms. Goitein: While the violations have been pervasive the national security value of these backdoor searches according to the privacy and civil liberties oversight board is scant at best. In april 2024 congress passed the reforming intelligence in securing america act which attempted to rein in the fbi's backdoor searches, primarily by bolstering internal oversight and reporting requirements. We do not know the impact of these reforms because the fbi failed to track all of its U.S.
▶ 0:43:23Ms. Goitein: Queries as required by law. Specifically the justice department discovered in august 2024 that the fbi was using a tool to search for the communications of specific individuals, including U.S. persons from within subsets of section 702 data. The fbi did not consider these to be queries and so did not follow any of the procedures required by law such as obtaining attorney approval or providing written justifications for U.S. personal queries.
▶ 0:43:56Ms. Goitein: The justice department told the fisa court that lacked the information to determine whether these queries comply with legal standards. As a result we have no idea how many queries the fbi conducted in 2024. The number that appears in the annual statistical report is 5518. That is the number of known queries, the queries the fbi counted.
▶ 0:44:20Ms. Goitein: The total number of queries remains unknown and for the same reason we do not know the fbi's compliance rate in 2024 and at this point we have no information about 2025. This is important information and congress should have it before reauthorizing section 702. Even if there were only 5000 warrantless searches for americans emails, phone calls, and text messages in 2024 that is 5000 too many.
▶ 0:44:52Ms. Goitein: Warrantless access to americans private communications is an invitation to governmental overreach and abuse under any administration. Congress must now do what it should have done years ago, require the government to get a warrant or a pfizer title I order before accessing american communications -- or a fisa title I order before accessing american communications under 702. Thank you and I look forward to your questions.
▶ 0:45:21Mr. Klein: Thank you for inviting me to testify today. For almost 20 years section 702 has helped our government protect the american people and prevented terrorist bombings in the united states. It is help stop hackers from paralyzing our infrastructure and stealing our data. It is tracked foreign spies and exposed violations of human rights. Intelligence leaders have called it essential and indispensable. Jargon aside, the basic principle is simple.
▶ 0:45:53Mr. Klein: When data from our foreign intelligence targets passes through the united states we can collected to protect our nation. Our allies do the same thing in their countries, so too are adversaries but with an of the safeguards in our system. It bears repeating section 702 can never be used to target americans. You can only be used to target non-us persons located outside the united states. As far as I am aware there has never been a case of intentionally targeting an american under 702.
▶ 0:46:25Mr. Klein: There have been unintentional mistakes, especially around fbi queries of stored 702 data and there have been intentional abuses of other parts of fisa, most notably the case of president trump's former campaign advisor carter page. Page was targeted under a different part of fisa which is not part of this sunset.
▶ 0:46:51Mr. Klein: Just two years ago congress enacted dozens of reforms to prevent that from happening again. Those changes are working. The department of justice inspector general found the fbi has implemented all of the changes. As a result noncompliant queries have fallen substantially and those that remain are typos and not genuine errors.
▶ 0:47:13Mr. Klein: There is one area in which the 2024 laws does not seem to be fully working and that is enabling congressional leaders and their designees to attend fisa court proceedings. This is an important step for transparency and oversight. I would be happy to discuss that further during q&a. Lastly, congress should not require a judicial order for the fbi to search its own database of information from 700 to. A warrant is not constitutionally required for an agency to check its own files.
▶ 0:47:45Mr. Klein: One district court decision holding otherwise rests on flawed reasoning which I do not believe would be adopted by the supreme court and requiring a court order as a matter of policy would make it harder to prevent terrorist attacks. Before 9/11 the government had enough information about the future hijackers to arrest them and stop the plot. What a different world we would be living in today. That information did not flow to the people who could have acted on it.
▶ 0:48:14Mr. Klein: Imagine today and fbi agent is checking out a tip that a person inside the united states is expressing support for isis and may be contemplating violence. If the government had collected messages between that person and isis terrorist overseas we would want the agent to know that right away but how it with the agent of the information was there without checking the database? The 9/11 commission told us good counterterrorism means better using the information we already have. They said connect the dots.
▶ 0:48:45Mr. Klein: The webster commission which investigated the fort hood attacks said it again, check the databases. I hope we will not have reason to learn the lesson a third time. Thank you and I look forward to your questions.
▶ 0:48:56Chair Grassley: Thank you for your testimony. I will start with professor klein. Critics of section 702 contend the query of 702 information that has already been lawfully collected should be treated as a separate fourth amendment event. Please explain what it means to "query 702 information" and whether that is legally sound interpretation.
▶ 0:49:26Mr. Klein: Thank you for the question. I want to say at the outset that we all very much respect the constitution. I am a law professor. The constitution's number one and we care about fourth amendment rights and I would not support anything I think violates the constitution. The issue is this is a database created and owned by the government of information already lawfully collected just like a filing cabinet in an fbi field office.
▶ 0:49:55Mr. Klein: We do not require a warrant for an fbi agent to collect information it already has in its files. It is a prudent investigative step and it is less invasive than going out to get a new warrant to conduct new surveillance on a person and collect the date of the government does not have.
▶ 0:50:12Mr. Klein: The argument, and this is the reason the district court relied on, as if the government seizes a hard drive or a phone for a package under another search warrant or other lawful process and breaks into that additional sealed container, that is a separate fourth amendment event.
▶ 0:50:33Mr. Klein: That makes sense in those contexts because those things are effects under the fourth amendment, a piece of personal property that is seized that the government is breaking into for investigative purposes. It is a separate step. A government database is not an effect belong to any of the people whose information may be recorded in the database. The government structures the database, the government makes the entities and controls the database.
▶ 0:51:03Mr. Klein: Only the government can access the database. It is not comparable to a personal effect.
▶ 0:51:08Chair Grassley: I have raised concerns with the department of justice improperly limiting access to pfizer court precedent -- access to fisa court proceedings were nearly a year despite a re-authorization to allow certain members of staff to attend "any proceeding." can you tell us why congressional oversight of these proceedings is important and whether or not you believe the department of justice procedures limiting congressional access
▶ 0:51:39Chair Grassley: Comply with the laws at hand?
▶ 0:51:41Mr. Klein: Thank you. Congress constitutes tribunals inferior to the supreme court. Congress is the article one branch. Congress created the fisa court and could get rid of it if it chose to do so. It is important congress be able to form its own impression of how well the court is working. Members of congress have the right to access classified information. Many of your staff members are cleared as well.
▶ 0:52:11Mr. Klein: There should be a fairly seamless procedure for member of congress to see fisa court proceedings and form their own judgments.
▶ 0:52:17Chair Grassley: Mr. baker, for much of your career you have evaluated the failures that led to 9/11. Ongoing debate centers around the world -- centers around the word wall between law enforcement and intelligence agencies. Many argue this wall was a big part of why the government missed 9/11 attacks before it was too late.
▶ 0:52:46Chair Grassley: Talk about the necessity of information staring between the intelligent community and law enforcement and the dangers of having a wall between curie Mr.
▶ 0:52:54Baker: I talked about that in the -- and of having a wall between.
▶ 0:52:59Mr. Baker: I talked about that in the opening remarks. It was a tragedy that an effort to answer questions from law professors or civil liberties groups that there might be backdoor access this wall was created to reassure them. It did not reassure them.
▶ 0:53:19Mr. Baker: The government was afraid because of the politics to fight when the fisa court said we will make that part of our fisa orders and we will punish fbi agent to deviate from our interpretation of the law. The just apartment was afraid to appeal that order because of the political implications until after 9/11.
▶ 0:53:46Mr. Baker: The result of that was that the information that should have gone to the task force never got to them, they never use their enormous capabilities to find these people. There are tragic emails between people arguing about whether they can bring in the fbi in which they say someone will die, why are we protecting al qaeda this way? It never happened.
▶ 0:54:14Mr. Baker: Civil liberties concerns won out and the fear of losing their careers prevent the fbi agents from having those discussions with somebody who could find the attackers before they attacked.
▶ 0:54:24Chair Grassley: Senator durbin?
▶ 0:54:27Sen. Durbin: Mr. baker, you said in your opening testimony how frustrated you are with this infrequent inquiry by congress as to what the hell is going on with section 702. Two years, six years, we cannot make up our mind.
▶ 0:54:48Sen. Durbin: The issue is timely not just because of this section big -- not because of this section but of current american awareness of the fourth amendment to the constitution and it makes a difference as you well know. We are talking about situations in chicago and minneapolis where warrantless searches lead to helicopters landing on the roof of apartment buildings and people crashing down the front doors of homes without a warrant.
▶ 0:55:18Sen. Durbin: It appears americans do not care for that anymore than they did at the time of the british. It appears people want to know by what right are you doing this to me and that is a legitimate question. When it comes to questions of privacy it is a concern if not greater. I'm trying to figure out the numbers based on what we have heard in testimony.
▶ 0:55:45Sen. Durbin: The intelligence community and the fbi have touted reforms they say dramatically reduce the number of warrantless searches. The number of fbi searches has fallen from nearly 3 million in 2021 to 5500 in 2024. Is that what you understand?
▶ 0:56:04Ms. Goitein: We actually do not know the number for 2024. It felt to may be 57,000 in 2023. We do not know how long the fbi was using this tool. We also know around 50% of the drop can be attributed to a change in the way the government counted queries which happened in 2022.
▶ 0:56:30Sen. Durbin: They reported that fewer than 2% of the searches turned up any results. By my count that would mean requiring the fbi to get a court order just over 100 times a year, far fewer than the number of court orders they already obtain every year under the pfizer authorities, is that correct?
▶ 0:56:50Ms. Goitein: All of the reform proposals under serious consideration do not kick in until after a search has been run and a communication has been identified. The warrant would only be required in those cases which is 2%. If there were 5000 queries in 2024 that would be over 100 warrant applications.
▶ 0:57:12Sen. Durbin: 100 warrant applications. That seems not unreasonable expectation on the part of people who are mindful of this.
▶ 0:57:23Ms. Goitein: I would agree.
▶ 0:57:25Sen. Durbin: Professor client you talk about your reverence for the fourth amendment. Why would asking agencies for more than 100 cases be a hardship?
▶ 0:57:36Mr. Klein: Thank you, senator. I appreciate the question and the concern for privacy and civil liberties. The issue is that in the most important cases where the query is exceptionally valuable you do not know that something is there , you do not know there is a worrying connection till you run the query. That is why these queries can be so valuable.
▶ 0:58:01Mr. Klein: Something may seem like this level of priority but when you find the person previously spoke to an al qaeda terrorist overseas or chinese intelligence officer overseas all on the takes -- the case takes on a new complexity and goes to this level of priority.
▶ 0:58:18Mr. Klein: Just like it before 9/11 investigators had realized that al-nadar had multiple visas to enter the united states that would've gone to a code red immediately. We need to find these unknown facts by running these queries. You will not know to get a court order unless you realize the information is there.
▶ 0:58:40Sen. Durbin: You believe current rules do not allow that to happen?
▶ 0:58:44Mr. Klein: Current rules do not require a court order. I share Mr. baker's concern that current rules may be allowing too few queries. The fort hood commission is said we need to have federated query tools to enable fbi agents to discover and athletically get information and fbi holdings.
▶ 0:59:07Ms. Goitein: It never ceases to amaze me when I hear the argument that the government should not have to get a warrant because they do not have anything approaching probable cause. The fact that the government is conducting thousands of searches of americans private communications every year on a hunch is exactly why we need a warrant requirement. The purpose of warrants is to prohibit exactly those kinds of fishing expeditions.
▶ 0:59:39Ms. Goitein: That is the balance that the framers struck.
▶ 0:59:40Sen. Durbin: Thank you. >> thank you all for being here. We can all agree 702 reauthorization is important. Obviously privacy concerns of american citizens are important. I think initially we are conflating a couple of things.
▶ 1:00:03Sen. Durbin: Unfortunately historically with the fbi having law enforcement authorities and intelligence authorities, those are two separate things. Would you agree that law enforcement looks retrospectively to see if someone has committed a crime and obviously it is easier to go to a judge and say here is probable cause to show why we need this warrant.
▶ 1:00:32Sen. Durbin: Intelligence gathering is different because it is prospective. In 9/11 it was largely seen as a failure of intelligence but can you talk about the difference between law enforcement and intelligence gathering and why 702 is important to the latter?
▶ 1:00:54Mr. Baker: I was inculcated into this early in my career and someone said the difference between intelligence and law enforcement's's intelligence finds the suspects and law enforcement finds them and wants to string them up. The purpose of intelligence gathering is to get access and use it for as long as possible to find out what is happening.
▶ 1:01:26Mr. Baker: For law enforcement the purpose is to end in a courtroom with the conviction. The fact is that terrorism, espionage, all of the things we care about for intelligent purposes are also violations of our criminal law. You cannot separate them easily into those categories. Our effort to do that produced the tragedy of the wall.
▶ 1:01:53Mr. Baker: And the notion that we should separate intelligence from law enforcement by saying you need a separate warrant if you have a separate interest in getting access to information we already collected for intelligence purposes is the same kind of mistake. We should not make that mistake with something as important as terrorism or espionage.
▶ 1:02:14Sen. Cornyn: There can be a reason for using fisa 702 to query a person overseas, non-american citizen that is not law enforcement related, that is strictly related to getting intelligence to help supply the dots we need to understand what is going on. Would you agree with that?
▶ 1:02:41Mr. Klein: Absolutely. The targets under 702 are non-americans overseas likely to possess foreign intelligence information. Then we have fbi agent's conducting national security investigations whether criminal or intelligence. They are co-mingled. If one of those people in the united states is connected to a priority for intelligence target , that is potentially very concerning, very alarming.
▶ 1:03:10Mr. Klein: We may need to act on that quickly to prevent a terrorist attack or another catastrophe.
▶ 1:03:15Sen. Cornyn: I have heard people talk about the importance of a warrant but they tend to conflate title one of section 702 which was used against target page -- which was used against carter page and we can agree a lot of the public skepticism around fisa was related to the disgraceful use of 702 title one to investigate an american citizen without cause. We are talking about a different section of fisa.
▶ 1:03:47Sen. Cornyn: Title vii. Non-us persons outside the U.S. and currently the fbi can query lawfully collected intelligence without securing a warrant to look at the database or the file cabinet as you point out that is sitting there in their office.
▶ 1:04:09Sen. Cornyn: How would you go about -- in a case where it is not a criminal investigation but strictly and intelligence gathering matter, how would you get a search warrant? What would you show a judge about probable cause that a crime has been committed in order to be able to query that lawfully collected intelligence? It does not seem like it fits.
▶ 1:04:33Mr. Klein: Another conundrum is you often do not know there is an urgent need to take action until you run the query. The agent does not have access to that so checking your databases to see whether there is a dangerous connection is a prudent early step in an investigation. If you require probable cause you to cut the table altogether because you typically do not have probable cause the outset of an investigation.
▶ 1:05:07Mr. Klein: >> thank you. I previously served on the intel committee. I do appreciate the value of section 702 as a tool of protecting our national interest. I have never voted in favor of authorizing or reauthorizing section 702 because of civil liberties concerns, especially regarding U.S.
▶ 1:05:33Mr. Klein: Persons and as noted these inquiries can be in the thousands. U.S. persons communications can be opened up in that way. The last time we consider this issue of the privacy rights of U.S. citizens, senator durbin and lee offered what to my mind was a compelling compromise and you can conduct queries and see if there are results.
▶ 1:06:07Mr. Klein: If you want to view the contents of those results you need a warrant. You can look at the outside of an envelope, whenever you open up the envelope and look inside you need a warrant. There was previously the assertion that the fourth amendment did not apply to these fisa queries.
▶ 1:06:33Mr. Klein: That blanket assertion is no longer the case because there is now the eastern district of new york case. That leads me to my question of Ms. goitein.
▶ 1:06:54Mr. Klein: I think you share my concern that there should not be this blanket non-fourth amendment concern because of this decision. Can you explain what the district court concluded in the eastern district of new york case?
▶ 1:07:12Ms. Goitein: Sure and it is not just a single district case, it was a unanimous three-judge panel that held a query is a separate fourth amendment event from the original collection. The government made the argument there are no restrictions on lawfully collected information. The fisa court accepted that. A handful of district courts went with the fisa court's assessment.
▶ 1:07:37Ms. Goitein: What the second set is there is often a restriction or restrictions that the fourth amendment places on lawfully collected property or information. One example was the supreme court's decision in riley in 2014 when the supreme court held that a lawfully seized cell phone cannot be searched. The contents cannot be searched. It was initially seized without a warrant.
▶ 1:08:06Ms. Goitein: In order to actually search the contents the government had to go back and get a warrant because the search was a separate and greater privacy intrusion under a different justification in the initial search. It did not base its decision on the fact that this was property that still belongs to the person who owned the cell phone.
▶ 1:08:29Ms. Goitein: Similarly when the government gets a warrant to seize a laptop , to search for evidence of tax fraud, it is lawfully in possession of the laptop. It can only search for evidence of tax fraud. If it wants to search for evidence of another kind it has to go back and get another warrant.
▶ 1:08:47Ms. Goitein: On remand the way the district court put it was a search that relies on initial warrant or exception to the warrant requirement is limited by its original justification and to intrude further on lawfully acquired items requires new and independent approval. That is certainly the case in section 702. Very quickly adam klein has said this is about property and whose property, whether the information is the property of the person or the government.
▶ 1:09:17Ms. Goitein: The supreme court get away with property-based distinctions in 1967.
▶ 1:09:22Sen. Hirono: I am running out of time. Every time the issue of requiring search warrants comes up the justice department says everything would come to a screeching halt. Do you agree with that? A broad we cannot do it, it would stymie their efforts to protect our country?
▶ 1:09:41Ms. Goitein: Not at all. There is no case in terms of how much of a burden it would be. We are talking about if the government's numbers are correct maybe a couple hundred warrants a year. In terms of national security, as I mentioned before, I have much more to say about this but I know we are running out of time.
▶ 1:10:06Ms. Goitein: The privacy and civil liberties board looked at the evidence and said among the few backdoor searches that were useful, these searches could have taken place even if a warrant with certain exceptions were required.
▶ 1:10:18Sen. Durbin: Thank you very much.
▶ 1:10:21Chair Grassley: Senator lee?
▶ 1:10:24Sen. Lee: Thank you Mr. chairman and thank you to each of you for being here. This is an important topic I've focused a lot on for the entirety of the 15 years I have served in the senate and on the senate judiciary committee. Each time we bring up this issue or another issue related to it we tend to hear very similar set of arguments. The arguments go like this.
▶ 1:10:49Sen. Lee: There've been problems in the past, there've been abuses of fisa 702 but you need not worry because we now have procedures in place that will fix the problem once and for all. We now have to have even more layers of administrative approval within the agencies charged with administering this framework. You need not worry.
▶ 1:11:14Sen. Lee: What you ought to be worried about is another 9/11, what you ought to be worried about is we are all going to die unless the U.S. government has the ability to collect content, private communications involving U.S. citizens without a warrant. I find this rather troubling. That is not what the constitution sets up. The founders did not design a system in which liberty and the protection thereof depends on compliance with manuals.
▶ 1:11:45Sen. Lee: In riley versus california chief justice roberts running for unanimous court explained that while it is probably a good idea for the government to develop search and seizure protocols, "the founders did not fight a revolution to gain the right to government agency protocols." Ms.
▶ 1:12:02Sen. Lee: Goitein, do you agree with that without probable cause warrant, a probable cause requirement -- with a warrant being issued by a coequal branch of government 702 lacks the structural checks and balances necessary and the founding fathers deemed necessary in order to restrain the executive power in this area?
▶ 1:12:26Ms. Goitein: I would agree with that as a legal matter and a practical matter. As a legal matter, the supreme court has held the fourth amendment applies not when there has been an intrusion on property but when there has been an intrusion on reasonable expectation of privacy and americans have a reasonable expectation of privacy in their communications with others, including foreigners. If these americans voluntarily gave their communications to the government they would waive that interest.
▶ 1:12:56Ms. Goitein: That is the third-party doctrine. That is not what has happened here. There have been cases in which the government obtained information and return the actual property, the laptop, to the person who owned it, mirrored the contents, cap the contents on its own hard drives, and the court in the second circuit still held that the fourth amendment limited the government's ability to keep and access that data.
▶ 1:13:23Sen. Lee: That is a great point. If we look at the history of the fourth amendment and the centuries of english antecedents the fourth amendment preceding the fourth amendment's adoption, what we find is not a situation in which it was adequate that those who work executing writs of assistance or general warrants under english law, those administrative layers of approval and compliance manuals
▶ 1:13:53Sen. Lee: That I am sure they had did not do the job either and that is why we have a warrant requirement and that is why it is so important. Mr. baker, in your written testimony you make an analogy to drivers licenses and the ability to search dmv databases for drivers licenses. I am not sure that helps you much. I'm not sure that helps the argument.
▶ 1:14:21Sen. Lee: First of all, you are dealing there with information that is lawfully obtained by state governments on american citizens. They become matters of public record that somebody has a drivers license, whereas with fisa 702 you are dealing with the contents of private conversations and private conversations directed at foreign intelligence. Isn't that the first point where your analogy breaks down?
▶ 1:14:51Mr. Baker: I don't think so. The purpose of the use isinfrastructure, with n targets talking to america from time to time. You cannot get their communications without also getting the americans who are talking to them. But you have lawful authority to gather those communications.
▶ 1:15:17Mr. Baker: Once gathered, you can use them for other purposes that are related to that.
▶ 1:15:24Sen. Lee: If you get in there, it becomes analogous at some point to an officer who figures out a way to get inside of a home, and then exploits that -- figures out a way to initiate a terry stop, and then extends that visit longer than it was intended to cover at the outset. One more point before my time expires.
▶ 1:15:51Sen. Lee: A moment ago, you made some references to 9/11, Mr. klein, lamenting what happened then. Last I checked, 9/11 was carried out entirely by foreign nationals, not by american citizens. How does that justify warrantless surveillance of private communications involving U.S. persons on U.S. soil?
▶ 1:16:15Mr. Klein: U.S. persons also includes lawful permanent residence.
▶ 1:16:23Sen. Lee: Fair enough. But regardless, go ahead.
▶ 1:16:25Mr. Klein: It is possible that americans are sometimes unfortunately suborned by foreign terrorist groups, sometimes unwittingly are used by foreign terrorist organizations. In those cases, the U.S. person can help warn that person, redirect them away from being recruited. A significant portion of the queries that are run actually relate to victims of things like cyber attacks, or unwitting recruitment by foreign intelligence services.
▶ 1:16:53Sen. Lee: That is not what those of us worried about 702 are worried about. Our focus is when somebody is going after information, private communications of U.S. persons. There ought to be a warrant requirement.
▶ 1:17:09Chair Grassley: Sen. welch:. -- senator welch.
▶ 1:17:30Sen. Welch: Some time sensitive data of american citizens. There are two issues always involved with this, in addition to the trade-off between national security and privacy rights. One is, however the administration in charge is, we have to have some trust that they are going to operate within proper constraints.
▶ 1:17:53Sen. Welch: The second is we have created some constraints which are intended to have an aggressive and assertive advocacy on behalf of the privacy side of the equation, and one of those was the privacy and civil liberties oversight board, which as you know it is an intelligence watchdog. It is charged with monitoring government compliance with the procedural safeguards on surveillance activities.
▶ 1:18:23Sen. Welch: That was terminated, as you know, by president trump. In may of 2025, shortly after Mr. patel became fbi director, he shattered the office of internal auditing, which as you know is the unit responsible for overseeing the government's compliance with surveillance rules. Ms.
▶ 1:18:47Sen. Welch: Goitein, how does that help create public confidence that when 702 is used, it is going to be for the purpose of national security protections, and is being done in a way consistent with the privacy rights that all americans enjoy?
▶ 1:19:05Ms. Goitein: It is a concern. As I was saying before, we don't have any data on implementation of statutory safeguards in 2025. The fact that privacy and civil liberties oversight board was gutted, the office of internal audits was disbanded, does not give a lot of confidence that the oversight provisions of erisa, for example, are being robustly enforced.
▶ 1:19:37Sen. Welch: Is a strong proponent of 702, for the reasons you have outlined, are you a proponent of getting rid of the internal function that was disbanded by Mr. patel?
▶ 1:19:52Mr. Baker: I am a believer that proper bureaucratic requirements are better protection of civil liberties than a warrant requirement. We had a warrant requirement on fisa, and there was inappropriate surveillance. In four different judges on the fisa court said fine. A warrant requirement does not necessarily protect civil liberties.
▶ 1:20:18Mr. Baker: Good bureaucratic control is key.
▶ 1:20:23Sen. Welch: In your view, was the p cloud something important to protect privacy rights?
▶ 1:20:29Mr. Baker: They wrote an excellent report. It is really the best piece of work on 702.
▶ 1:20:43Sen. Welch: That is an incredible endorsement, Mr. chairman. Did it make sense for Mr. patel to shutter the office of internal auditing? To achieve your goal of a good 702?
▶ 1:20:54Mr. Baker: I don't know the details of that, but I would support any mechanism that does a careful job of evaluating the justifications of the searches that they do.
▶ 1:21:08Sen. Welch: Thank you, since it seems like we are taking a step backward. I recommend -- I wrestle with this question of a warrant requirement, because there is incidental collection of americans. Many of my colleagues across the aisle are strong proponents of protecting civil liberties. So when you have a couple of offices that are strong in the moment advocates for the balance , it is disappointing to me that those would be disbanded.
▶ 1:21:39Sen. Welch: Thank you. I yield back. >> thank you, Mr. chairman. I want to use my time to focus on, for the three of you -- we will start on the road.
▶ 1:21:58Sen. Welch: Do each one of you believe that the reforms that the chairman has offered -- do they adequately address the abuses that we saw, say, with the carter page microphone incident? I do think there is a broad concern that this abuse -- it happened and could happen again. And I think somebody who wants to be reform minded -- how do you view that? If you think it is inadequate, what else would you propose?
▶ 1:22:28Mr. Baker: I believe that oversight of the fisa court is appropriate. They have been responsive to the people they think are watching them most closely, which tends to be civil liberties advocates.
▶ 1:22:48Mr. Baker: Having congress present, and certainly having congress oversee the list, makes a lot of sense as a way of demonstrating the fisa court needs to take account of the people who wrote the laws as well as the people who are lobbying. >> is there anything else you would do to do to deal with the abuse?
▶ 1:23:12Mr. Baker: I think one of the ends of legislative reforms in this area -- certainly, it would make sense to ask the intelligence community to create a mechanism by which you could determine whether you could do a search to determine whether somebody is in the database, and for what investigation, without having this query concern arise.
▶ 1:23:41Mr. Baker: If we can get to the point where only 2% of the people who have been looked at have to be the subject of a warrant, it would be much better. But I don't think at this point the ig systems will support that kind of a search.
▶ 1:24:00Ms. Goitein: If we are talking just about improving the function of the fisa court for the moment, I would say that risa, combined with a couple of the chairman's proposals, takes steps in a good direction. They fall short of the full set of reforms to the fisa court that were proposed in the lee-lakey amendment in 2020, or the welsh amendment in 2024.
▶ 1:24:29Ms. Goitein: That passed in 2020 in the senate by a vote of 70 7-19. There is no need -- no reason not to increase the speed of reforms. There were major steps backward that weekend the role of the by support, by limiting it to issues identified by the fisa court. The primary value is to identify issues the fisa court has not thought of.
▶ 1:24:56Ms. Goitein: This would cripple a scenario where the court had not identified issues with the materials. This also required amici to have experience in intelligence collection, which would wait toward government officials who may come in with institutional bias. That government perspective is already represented before fisa. Those should be looked at. >> so these reports -- these reforms, plus the reforms that the lee --
▶ 1:25:25Ms. Goitein: I would not support coming congress -- I don't think that will make things less political. I think it will make things more political.
▶ 1:25:37Mr. Klein: Thank you, senator, and thank you for mentioning the flint leaks, something I wrote about almost 10 years ago when it happened, which was a disturbing example of signals intelligence being leaked to politically target american citizens, something that is unacceptable. Risa made many changes which I think will help get political influences out of the fisa process. No more unsourced press reports. Having lawyers review applications with closer scrutiny.
▶ 1:26:07Mr. Klein: And many other things written -- listed in my written testimony. Those need time to run. I think they will bite more effectively if congress is able to get in there and see how the process is working and provide that additional congressional oversight. That is why I support the reforms of this committee. >> I think the steel dossier -- steele dossier was omitted. Taking political research out of it -- the problem is, that was hidden from the court in an effort to pursue this, right?
▶ 1:26:37Mr. Klein: The bill from two years ago requires the government to explicitly call out if it is using that kind of information, not to try to bury or hide it.
▶ 1:26:49Chair Grassley: Senator hawley?
▶ 1:26:53Sen. Hawley: Thanks to the witnesses for being here. Mr. klein, if I could start with you, back to the 702 context, you said a moment ago that 702 cannot be used to target americans, correct? But that is cold comfort, isn't it, to the 270 8000 people, tens of thousands of people, who were subject to improper searches. United states persons we are talking about, in 2022 alone. Sure, the statute does not permit them to be targeted.
▶ 1:27:25Sen. Hawley: When they have the personal information directly queried in an improper search?
▶ 1:27:28Mr. Klein: Obviously, if there is noncompliance with the rules, that is a big problem. If there is any suggestion that things are being done for political purposes or improper motives, that is a big problem I have heard about many times. I think there is some comfort for americans, even if they are queried. Foreign intelligence targets overseas are the people on whom this collection is based.
▶ 1:27:53Sen. Hawley: Why would that make me feel any better as someone who has had a cell phone tapped improperly, by the way. Why would I feel any better if I am told that the U.S. government improperly queried your personal information, and not just your location or something else -- your personal communications. The government looked at those, targeted them. You can use whatever verb you want. Found them out. But don't worry. They weren't going after you.
▶ 1:28:21Sen. Hawley: They just happened to have all your stuff, so then they looked into it because there are no constraints on them. Why is that a good thing?
▶ 1:28:29Mr. Klein: I do think members of congress have a heightened reason for concern, a heightened expectation of safeguards in this area. Members of congress have every right and reason to talk to foreign officials.
▶ 1:28:42Sen. Hawley: What about journalists, normal americans, somebody who has a family member who lives overseas? When you have got in a single year 270 8000 improper queries, it seems to me it makes no difference to the americans whose data was improperly searched to say it is really ok because you were not targeted. Yeah, all your stuff was red, all your private stuff, but you weren't targeted. You were effectively targeted.
▶ 1:29:09Mr. Klein: Senator, we have to remember this data is being collected on foreign intelligence targets overseas. It is not like going to the phone company and checking all the phone records that are there.
▶ 1:29:21Sen. Hawley: But it sucks in quite a bit of american data. One court noted that in 2011 -- ancient history now -- 2011 alone, this swept in something like two hundred 50 million emails. In 2011. Who knows what that is today? We are talking about massive amounts of data. It seems like a dragnet. Huge amounts of data.
▶ 1:29:44Sen. Hawley: Which leads me to the question -- why shouldn't we treat a query of an american person in this database as a separate fourth amendment event?
▶ 1:29:53Mr. Klein: The second narrowing function is the fbi is only getting 30% of the overall target set from this. It is a subset that is being checked. In most cases, there is nothing there.
▶ 1:30:09Sen. Hawley: Why isn't it logical, as the court said in the second circuit unanimously -- why shouldn't we treat the query of U.S. persons out of this dragnet database -- why shouldn't we treat that as a separate fourth amendment event requiring some additional process? It could be a warrant, as senator lee has proposed. Maybe some other process. When you go to this massive database and ask about a U.S. person, that is a fourth amendment event that requires some process, some scrutiny.
▶ 1:30:42Sen. -- Mr. Klein: We have covered that a lot. We do not require an fbi agent to get a warrant before checking a filing cabinet.
▶ 1:30:53Sen. Hawley: But this is not analogous to that, as the U.S. supreme court said in riley. This is not analogous, to say that you have a piece of information in a locker somewhere, that you have pursuant probable cause and a warrant for a particular case. Here, you have a massive dragnet of information. You told me a second ago that you could not target american citizens. So none of this information with the american citizens has any process whatsoever.
▶ 1:31:22Sen. Hawley: But now the fbi or whomever can go and query this database for the first time and get information on U.S. citizens, particularly for the first time. You are telling me that is not a separate fourth amendment event?
▶ 1:31:34Mr. Klein: I don't know if it is for the first time. When this information comes across the transom, there is an analyst at nsa or fbi, and they can read the whole thing.
▶ 1:31:47Sen. Hawley: It is the first time the U.S. person has been the subject of inquiry. It has to be under the statute because you cannot target a U.S. person. It has to be incidental. And you can't target a foreign person for the purpose of getting information on a U.S. person through the backdoor. It therefore follows that you query the database later, query a U.S. person in the database. That is the first time the U.S. person is the subject of the inquiry.
▶ 1:32:13Sen. Hawley: That looks an awful lot like a search, a search and seizure for fourth amendment purposes. Why shouldn't we say that is a fourth amendment event and we need additional process?
▶ 1:32:26Mr. Klein: I think the government has already collected this information. Analysts may have sat there and read the email. It is strange to say that someone has a regional -- reasonable expectation of privacy still when something was red as it came across.
▶ 1:32:42Sen. Hawley: You cannot have it both ways. You cannot say there is no targeting of U.S. persons -- that is forbidden under the statute, but if they do target a U.S. person, they don't get any process. No process on the front end. No process on the backend. I think, Mr. chairman, this is an extremely important issue. 278 thousand improper queries of americans in one year alone of. The idea that we would renew 702 without reforms to protect U.S.
▶ 1:33:12Sen. Hawley: Citizens, I think, is just totally irresponsible. >> I want to ask you about ways in which law enforcement or intelligence agencies might circumvent the requirements of the fourth amendment by acquiring information from third-party data brokers.
▶ 1:33:33Sen. Hawley: That is the supreme court in 2018 held that if you were going to share your location information, they weren't as necessary to propel a cell phone company to provide that data. In the electronic communications privacy act, we prohibited the disclosing or selling of customer data to government agencies. But that does not cover third-party data brokers.
▶ 1:33:58Sen. Hawley: Is there any reason we should allow the government to get information by buying it if they cannot get it without a warrant otherwise? I would be interested in your thoughts, whether you think that should be prohibited, or whether there is some argument to be made for continuing to allow that practice.
▶ 1:34:16Ms. Goitein: Thank you very much for the question. I think this is a vital issue. Some people may not see the connection to section 702. It is very much there. Section 702 is part of a section of overlapping surveillance authorities. 1 one ave is closed off, the government can often turn to another or exploit gaps in that network with no statutory authority at all. The gap I am most worried about is the data broker one.
▶ 1:34:45Ms. Goitein: Federal agencies are buying their way around constitutional and statutory requirements on a routine basis. You mentioned that the supreme court in carpenter held that police need a warrant in order to collect cell phone location data, and yet a veritable alphabet soup of federal agencies, including the department of defense, the dea, the fbi, the irs, ice, customs and border protection are all
▶ 1:35:16Ms. Goitein: Buying up american cell phone location information in massive amounts without any -- not a warrant, not a court order, not even a subpoena. The way they are doing this is because apparently government lawyers have taken the position that even though a warrant is required to compel production of the data, a warrant is not required when the government merely incentivizes production by writing a big check.
▶ 1:35:45Ms. Goitein: So that leaves us with statutory protections, and as you mention, the electronic communications privacy act is woefully outdated. It covers telephone companies, internet companies. They cannot sell data, the kinds of data we are talking about, to the government. But because this old law does not cover --
▶ 1:36:07Sen. Schiff: Thank you. I appreciate it. I have another question while I have time remaining. On a different topic. And that is it always seemed compelling to me when we have had this debate in the past that you should be able to do a search, a query, involving a potential target of a ransomware attack or a location that might be the subject of a foreign terrorist plot or bombing plot.
▶ 1:36:38Sen. Schiff: Have we outlined -- have we outlawed being able to do those kind of searches about searches? Or in order to search a place or potential victim -- would that be caught up in a warrant requirement? Under what circumstances would that be problematic?
▶ 1:37:04Sen. Schiff: That is, there are other cases where you have a known potential victim and you still require a warrant. What makes this circumstance different? Maybe you can answer that.
▶ 1:37:14Ms. Goitein: I would love to take a shot at that. There is no victim exception to the fourth amendment. We need -- the need to protect victims is hardly unique to the section 700 two context. Law enforcement officials in this country are charged with protecting the public and they do it every day, and they managed to do it while respecting the fourth amendment, including at times by obtaining the consent and cooperation of the victims, as well as invoking
▶ 1:37:44Ms. Goitein: Emergency exceptions. So the proposals for a warrant requirement would all include exigency exceptions. They would include exceptions for victim consent, and the leading proposals also include an exception for certain separate security-related areas.
▶ 1:38:04Sen. Schiff: If the chairman would allow, I would love to hear any counter argument you could make. What I am most particularly interested in is, would it be appropriate to search for a potential victim in a case where you may not have probable cause, where you may not be able to show the particularity you need for a warrant? Is it just the victim's right alone?
▶ 1:38:32Sen. Schiff: If there is a bomb threat against a premises, the community has an interest in not seeing that succeed, not just the venue. Should the owner of the venue -- let's say some institution -- decide not to give that approval, does the government have an interest nevertheless in moving forward, that should override it?
▶ 1:38:56Mr. Baker: If I could jump down on that -- I think the point of your question is that we should not borrow some of the less functional aspects of existing fourth amendment law in this context where we are writing an entire set of procedures that are designed to protect particular aspects of privacy. You don't want to have a situation in which people say you put in an address.
▶ 1:39:23Mr. Baker: That is a disguised search of a person who lives there are people who go there, and you needed a warrant for that. Or you needed a warrant for a victim. Maybe there is not a fourth amendment exception, but it makes sense to say the government should move faster and have fewer constraints, when they can demonstrate they are looking for a victim.
▶ 1:39:43Chair Grassley: Senator coons?
▶ 1:39:48Sen. Coons: Thank you, chairman, for holding this. Section 700 two implicates some foundational american liberties. This is exactly the sort of oversight hearing and pre-action hearing that this committee ought to be having. I really appreciate you dedicating this time. To our witnesses, thank you for being here. Section 702, as we all know, is a critical tool in the fight to keep americans safe.
▶ 1:40:15Sen. Coons: Information collected through 702 has disrupted terrorist attacks on american soil, exposed ransomware attacks on U.S. infrastructure, prevented weapons of mass destruction from reaching those who would use them to do harm. But section 702 does not and should not give the government carte blanche to collect and search the communications of americans in any way that it chooses. I remain deeply concerned about the breadth of this program and its potential for infringement on american constitutional rights.
▶ 1:40:45Sen. Coons: I voted against the reauthorization's of section 702 in 2012 and 2018. In my view at the time, those bills did not do enough to protect american privacy. However, in 2024, I voted to approve a short two year extension because I was convinced that the reforms in that bill, like robust accountability procedures at the fbi and opening the doors of the fisa courts to congressional oversight, could make a big difference.
▶ 1:41:14Sen. Coons: Today, I had hoped to hear from witnesses about whether those reforms had been appropriately implemented, whether they had been effective. But I cannot ask those questions of officials from the government are actually implementing those reforms, because they are not here. No disrespect to the witnesses before me, but you are not the folks actually running these programs and implementing these reforms.
▶ 1:41:38Sen. Coons: We are three months from the expiration of section 702, and the trump administration, as best as I can concern, has no official position. That is stunning when then-chair durbin of this committee held a hearing on section 702 in june of 2023, nearly a full year before reauthorization. We heard directly from officials at the nsa, cia, od and I, doj.
▶ 1:42:04Sen. Coons: I think it is unacceptable that with just 90 days, the administration does not know how it thinks about the program and has no one here to explain or defend it. If it is working well, why can't you tell us? Why can't you send someone to answer our questions about how the administration has reformed and improved this program to keep americans safe without trampling constitutional rights? If you no longer support the program, why can't you tell us?
▶ 1:42:30Sen. Coons: Why can't you tell us what additional reforms we may be can -- we may need to consider to protect privacy? Deciding whether or not to reauthorize 702 is a decision I take seriously, and I owe it to my constituents, and I don't know right now which way I will ultimately vote, because I don't know how this is being implemented. The trump administration should be here to participate and answer some of the many excellent questions posed to this capable panel.
▶ 1:42:57Sen. Coons: Let me ask a few questions that are relevant, I believe, to your areas of practice and expertise. Could you explain in plain terms how the expanded definition of electronic communication service provider differs from the previous definition, previous law? And what new surveillance permissions may and actually create for the federal government? What would an appropriately narrow definition look like?
▶ 1:43:27Ms. Goitein: Thanks for the question. This change in definition, innocuous as it would seem, is what senator wyden referred to as one of the most dramatic and terrifying expansions of government surveillance in history, and he was not overstating the matter. The government could have the compelled assistance of electronic communications service providers.
▶ 1:43:50Ms. Goitein: These ccs p -- ecsp's include providers of services such as verizon and gmail that have direct access to american communications. These companies would isolate and turn over the communications of the targets.
▶ 1:44:10Ms. Goitein: Risa made a change, and the reason for that change is that in 2023, the fisa court ruled that the fisa definition did not include a particular type of provider, and if the government wanted to include that provider, it would have to seek amendment of the law. That provider, we found out to the new york times, is a data center for cloud computing. This was confirmed during floor debates.
▶ 1:44:36Ms. Goitein: Even though it is now public knowledge, it remains officially classified. So rather than actually seek an amendment to add data centers, the administration deliberately sought an amendment drafted in incredibly broad and vague terms to obscure the issue.
▶ 1:44:54Ms. Goitein: So under this new definition, the government can compel the assistance of any provider of any service, as long as the provider or the employee's or the custodians have access to equipment on which communications are routed or stored. Think about it. That is pretty much every business or organization in the country.
▶ 1:45:16Ms. Goitein: There are narrow exceptions in the definition, but almost every public-facing business provides a service, and they all have phones and computers. And because these types of businesses are not going to have technical ability to isolate and turn over a target's communications, they may be forced to give the nsa direct access to their communications equipment with all of the purely domestic communications running through the equipment, and the nsa is on the honor system to only collect and retain the
▶ 1:45:49Ms. Goitein: Target's communications. I certainly don't know whether it has happened. The biden administration committed to only applying this definition to the type of provider at issue in that one case, and to report to congress on its uses, not to make public reports. If you have not received these reports, I don't know that this administration is bound by the biden administration's commitment, and that is a big problem.
▶ 1:46:17Ms. Goitein: The potential for abuse of giving the nsa direct access to the communications of almost every business in the country cannot be overstated.
▶ 1:46:29Sen. Coons: Mr. klein, do you think we need to revise this definition and narrow it?
▶ 1:46:33Mr. Klein: Under the usa freedom act, elaborated by subsequent laws congress has passed, the intelligence community is supposed to declassify novel or significant interpretations of law that come out of the fisa court. Congress also should be receiving unredacted versions of those important pfizer court opinions. If there is a significant expansion beyond what is expected, you all should know about it. The public should find out.
▶ 1:46:59Mr. Klein: As for data centers, if a russian general is putting his stuff in a data center in the united states, we can get that to protect the american people and our allies. I think we should do it.
▶ 1:47:10Chair Grassley: I want to thank all of you who work hard to prepare for this. I also thank my colleagues. I look forward to having my colleagues give me the benefit of your continued thoughts concerning potential reforms, and particularly I would like opinion on my proposals. Written questions can be submitted for the record to one week from today.
▶ 1:47:38Chair Grassley: I will ask the witnesses to answer and return questions from the committee within two weeks after you receive those questions. Thank you very much. Meeting adjourned.