Oversight of the Foreign Intelligence Surveillance Act

Chairman Jim Jordan (R-OH)SPEAKER_15

Committee will come to order. Without objection, the chair is recognized, or excuse me, authorized to declare a recess at any time. We welcome everyone to today's hearing on the Foreign Intelligence Surveillance Act. The chair recognizes the gentleman from Texas, Mr. Nehls, to lead us in the Pledge of Allegiance. Would all stand?

Chairman Jim Jordan (R-OH)SPEAKER_15

Thank the gentleman for leading us.

Chairman Jim Jordan (R-OH)SPEAKER_15

sorry to hear of his recent announcement. He's not going to be running for reelection, but glad to have him with us here today. We'll start with opening statements, then we'll get right to our witnesses and to today's hearing. February 2nd, 2021, the FBI was giving, I believe I think it was just then when we were in the minority, just minority staff and members, a briefing on the 702 program. And I remember that in that briefing, I can't remember who asked the question, but one of us asked the question, how many agents, how many people at the FBI have access to the 702 data? The data that's collected in this database surveilling foreigners, but all kinds of people get swept up. All kinds of Americans, US persons get swept up in this. How many agents, how many people at the FBI can query, which I always point out is a fancy name for search, how many people can search this data? Their answer was 10,000 people. We didn't know what answer to expect, but we didn't quite expect that big of a number. If they'd have told us three people, I thought, well, that seems fairly small. If they'd have told us any number over 1,000, I would have said that's crazy. But they told us 10,000. We then said, how many queries? We found out we had the IG do a study and investigation. How many queries are these 10,000 agents, potentially 10,000 agents doing who have access to this information? How many are they doing on US persons? And that answer from the IG was 3 million, 3 million in one calendar year, 2021. The IG also told us that 278,000 of those searches on US persons were most definitely done in an improper way. And what they meant by improper is they didn't follow the rules Congress had set. They didn't follow the FBI rules. So they didn't follow our rules, and they didn't even follow their own rules when they were doing these unbelievable millions of searches, 278,000 definitely done improperly, and the potential of 10,000 people at the FBI to do those very searches. And who were they searching? Who are some of the people they searched? Well, the IG told us this as well: journalists, people a part of Black Lives Matter, members of Congress, 19,000 political donors, ex-girlfriends. It was as obnoxious as you could imagine. And again, we're just talking about the 702. We're not even getting into Title I. We all know the problems with Title I, some of the things we learned a few years ago relative to surveilling a presidential campaign. We all know about that. We're just talking about 702. But all this is coming up, as everyone knows, for reauthorization, 702 program for reauthorization, but we can address the Title I as well. All that's coming due here in just 4 months. And so we felt it was important to have this hearing where we begin to talk about some of the things that still need to be done. I want to back up a second and say this. Last Congress, I do think the good work of this committee, some of our members working closely with in a working group with members of the House Intelligence Committee, I do think we had some good reforms that got put into the bill last Congress. And a lot of that's to do with the work of our witnesses here and the groups that they represent, and we appreciate that. We codified procedures to reduce improper queries. Last year, the number was down to 9,000 queries on US persons. So important changes that were made to the 702 program safeguards protecting Americans' liberties, and of course, some changes also made to the Title I section of the FISA law as well. I know our ranking member knows this. I know every member of this committee knows this. We're the Judiciary Committee where we're supposed to be focused on protecting the Constitution, the Bill of Rights, and the liberties that we enjoy as Americans. We think it's important as we move forward that we do just that. And part of that is if you're going to search this database and you're going to search using an American's name, phone number, email address, we believe you should go to a separate and equal branch of government and get a warrant to do so. We think that's fundamental. Everyone knows that last Congress we were close to making that happen, close as you can get without making it there, crossed 212 to 212. I'll never forget that vote. But we want to hopefully get that included in the reforms that we put together as we move forward over this next 4 months. But to start that effort, we've got some great witnesses here who we look forward to hearing. But I want to yield back now and let the ranking member have his opening statement, and then we'll get right to our great panel. With that, I yield to the gentleman from Maryland.

Ranking Member Jamie Raskin (D-MD)SPEAKER_07

Thank you very much, Mr. Chairman. And thanks to our witnesses for joining us today. Section 702 expires April 19th next year. This gives us four months to put together a bill that prioritizes protecting Americans' fundamental constitutional rights while preserving a program that advances national security over the years. FISA has remained a subject of bipartisan collaboration on this committee, and I really want to thank Chairman Jordan and Chairman Biggs for working with all of the members of the committee to protect American civil liberties. When Congress reauthorized Section 702 last Congress, we gave the executive branch two years to show that it could protect civil liberties without the need for greater judicial oversight. We said that we would rely on the FBI's promise that the modest changes, like requiring approvals for U.S. person queries in the Reforming Intelligence and Securing America Act, or RISAA, would be enough to prevent greater violations of civil liberties. And we promised in turn that we would keep a close eye on how surveillance authorities are used during that time. This two-year experiment is nearly complete now, and the results are alarming. We have witnessed an attack on the FBI's internal guardrails against abuse of Section 702 authorities, an unprecedented increase in government surveillance, and an alarming coziness between the government and big tech, all of which puts Americans' data and civil liberties in jeopardy. We must strengthen federal law to protect American privacy and liberty, and Congress can start with FISA Section 702. As everybody in the room knows, 702 was never meant to apply to American citizens. Under the law, the government can only collect communications from targets who meet two criteria: one, they've got to be non-U.S. persons; and two, they've got to be located overseas. Americans and people on U.S. soil are protected by the Fourth Amendment that prohibits unreasonable searches and seizures, guarantees the warrant requirement, and if law enforcement wants to look at American citizens' emails, they've got to get a warrant to do it. Despite all these protections, because Section 702 enables the intelligence community to ingest an incredible amount of data, American citizens' communications are often swept up in 702 collection. When that happens, those records end up in the FBI's massive database, and under current law, the FBI can search that database for U.S. person identifiers, like Americans' names and street addresses, for evidence of potential crimes or threats to national security. And as the chairman says, 10,000 people have access to that. Administrations of both parties have repeatedly abused this trove of U.S. person data. Recent audits show that FBI has searched the 702 database for candidates for federal office, Black Lives Matter protesters, and federal contractors, among other Americans who ought to be protected. Two years since we enacted RISAA, however you might have felt about the modest changes in that bill, the landscape has changed. For years, the leaders of this committee have warned of how executive branch surveillance powers could be abused by administrations that don't show sufficient care for the protection of civil liberties, and who use cutting-edge technology to spy on Americans, and who ignore basic principles of due process and constitutional freedom to achieve their own ends. In 2025, we know that we were right to worry. Here's just one example. I've been concerned for years about the U.S. government purchasing and compiling data about our own people. That problem has been compounded in this administration, which is actively building profiles on American citizens by combining data traditionally siloed in separate agencies—your tax returns, your health records, any interactions with police—with information purchased from tech companies. The administration is breaking down the very few guardrails that still exist on protecting our privacy, enabling the executive branch to track the movements of dissenters and supporters alike. So we have a lot to be concerned about at this point. I'm glad we're proceeding in a bipartisan way for the legislative defense of essential constitutional civil liberties. I look forward to hearing from all of our witnesses today on how we can properly protect American civil freedom in this perilous era. And I yield back to you, Mr. Chairman, the balance of my time.

Chairman Jim Jordan (R-OH)SPEAKER_15

I thank the gentleman for his statement. Without objection, all other opening statements will be included in the record. We will introduce today's witnesses. Mr. Brett Tolman is the executive director of Right on Crime, a nonprofit organization that advocates on criminal justice issues. He's testified here many times, previously served as the U.S. attorney for the District of Utah and as the chief counsel for the Crime and Terrorism for the Senate Judiciary Committee. Mr. Gene Schaerr is the general counsel for the Project for Privacy & Surveillance Accountability, a nonprofit organization that advocates for greater protections for privacy, civil liberties, and government surveillance programs. He is also the managing partner of Schaerr Jaffe LLP, where he focuses on civil appellate matters. Mr. James Czerniawski is the head of emerging technology policy at the Consumer Choice Center. He previously was a senior policy analyst at Americans for Prosperity. His research focuses on the issues surrounding technology and innovation. And Ms. Elizabeth Goitein is the senior director of the Brennan Center's Liberty and National Security Program. She previously served as Senate staffer with the Department and with the Department of Justice. Her work focuses on presidential emergency powers, government surveillance, and government secrecy. I know many of you have been here before, and we appreciate the work you've done for our country and and for you being with us today. We welcome all of you, and we will begin by swearing you in. Would you please stand and raise your right hand? Do 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 God? Let the record reflect that all witnesses have answered in the affirmative. Thank you. You can be seated, of course. And please know, you've been through this before, that your written testimony will be entered into the record in its entirety. We ask that you kind of summarize that in 5 minutes, and we'll just go right down the line like like you were introduced. Mr. Tolman, you may begin.

Mr. Brett TolmanSPEAKER_05

Thank you, Chairman Jordan, Ranking Member Raskin, and distinguished members of the committee. Thank you for the opportunity to testify today. Oversight of the Foreign Intelligence Surveillance Act is a debate that goes to the heart of what it means to be an American—commitment to the rule of law, the constitutional rights we hold dear, and the principle of limited government. FISA is in desperate need of reforms. Or rather, our country desperately needs to reform FISA. For decades, and with increasing regularity, it has been the government's permission slip for warrantless spying on Americans. This is despite the Fourth Amendment. To be sure, FISA serves an important national security interest. I would know. I helped write some of the FISA laws when I worked as chief counsel over crime and terrorism in the Senate Judiciary Committee, and I later prosecuted national security cases as a federal prosecutor. These credentials, however, don't contradict the harsh truth that the FISA system is flawed. It enables unconstitutional government surveillance and doesn't protect our civil liberties presently. Nowhere is this more clear than with Section 702. Section 702 was sold to Congress as a vital tool to target foreign adversaries. We were given high-stake assurances by DOJ and FBI leaders, namely James Comey and Robert Mueller, that it would not be used improperly against honest Americans. I was in the room when they represented it would not be abused. That was a lie. FISA abuse is not speculative. There is clear record of systemic failure, constitutional betrayal, and the disregard for the rule of law confirmed by the FISA court itself and government watchdogs. For instance, the Crossfire Hurricane investigation used flawed information and deceit to justify FISA surveillance of Carter Page, proves the vulnerability the system is to political weaponization. Arctic Frost investigation, which targeted hundreds of American citizens, including sitting Republican lawmakers, highlights how domestic political matters are swept up by FISA. The FBI has carried out warrantless searches of Section 702 database involving American lawmakers, journalists, political donors, civil rights protesters. 1,600 searches were conducted for Americans who were at a specific airport on a particular day. 2,000 backdoor searches were done on athletes at a sporting event. NSA analysts searched for communications of prospective tenant and rental property that they owned personally and for people met through online dating sites. This is not national security intelligence gathering. It is domestic spying. With FISA set for reauthorization in April, Congress faces an important question: will we limit government, or will we license its continued Fourth Amendment violations? Internal policy changes by the offending agencies are not enough. FISA must be rebuilt and reformed. Section 702, for example, it is necessary that Congress rewrites the government it is necessary that the Congress requires the government to obtain a probable cause warrant if a search is done on a U.S. citizen in a domestic investigation. If this warrant requirement had been in place, the vast domestic surveillance of Americans under Arctic Frost, for example, would have required judicial review and likely would not have occurred. Section 704, which lets the government surveil Americans abroad believed to be a foreign asset, would benefit from heightened judicial review, such as that declassified and released court opinions and the use of third-party experts who can review Section 704 applications. Section 705(b) can easily bypass the requirement for comprehensive judicial review, allowing the government to move to a more intrusive form of surveillance with less scrutiny than a new probable cause application would require. Reforms should center on the consistent probable cause decisions. Lastly, FISA courts need structural reforms such as penalties for omissions or misrepresentations like those used to target Carter Page. The FISC should also incorporate third-party advocates to balance the weighted government proceeding and declassified FISC rulings. In conclusion, Congress must not be complicit in facilitating a surveillance state. It must either mandate reforms or allow authorities like Section 702 to expire. I applaud this committee and its leadership for its thoughtful review, and I stand ready to work with you to craft reforms that are conservative in principle, effective in practice, and constitutional in design. Thank you, Mr. Chairman.

Chairman Jim Jordan (R-OH)SPEAKER_15

Thank you. Mr. Schaerr, you are recognized for 5 minutes.

Mr. Gene SchaerrSPEAKER_19

Well, thank you, Chairman Jordan and Ranking Member Raskin and members of the committee. Thank you for the opportunity to testify at this hearing, which is particularly timely as we prepare to celebrate the Declaration of Independence next year. In considering the reauthorization of FISA Section 702, which my organization supports, the overriding question faced by this body is the extent to which it will allow the intelligence community to continue engaging in warrantless surveillance of Americans and without, as the Declaration put it, the consent of the governed through its representatives in this body or otherwise. And as you know, absent consent or truly exigent circumstances, the Fourth Amendment generally condemns warrantless searches. And while last year's reauthorization was in many respects a good first step toward needed reform, at least four important issues remain unresolved. Number one, Section 702 still allows the government to search Americans' communications without a warrant through so-called backdoor searches. Number two, federal agencies routinely purchase and review our geolocation, internet search history, and other sensitive personal information from data brokers, all without a warrant and without allowing providers even to inform us of those searches. Three, a newly expanded definition of electronic communication service provider under last year's reauthorization allows the NSA to force countless small businesses and other organizations to assist in warrantless surveillance. It even includes houses of worship, thus ensuring that even atheists will now have to agree that someone is listening when we pray. There's still no provision—number four—there's still no provision requiring the FISA Court to include amici, experts who represent the privacy interests of all Americans, in Title I surveillance proceedings involving members of Congress, political campaigns, and other sensitive targets. So how then should Congress approach the upcoming reauthorization? First, we believe Congress should institute a warrant requirement, with appropriate exceptions, before the FBI or other agencies can search and review Americans' communications collected under 702. Just last year, as the chairman mentioned, this committee, in a near-unanimous bipartisan show of strength, voted to close that loophole, and it should do so again, and this time insisting on closing that loophole as a condition of reauthorizing 702. Second, it is critical for Congress to rein in the federal government's ever-growing purchase and warrantless searches of Americans' geolocation and other sensitive personal data purchased from data brokers. I applaud the committee for its impressive bipartisan work over the last several years to address this issue, but this next reauthorization is the time to insist that this data broker loophole also be closed. Third, the definition of electronic communication service provider under FISA should be narrowed to exclude houses of worship and countless small businesses and other organizations that were unfortunately included in last year's reauthorization. There's no justification for secretly coercing these entities to assist the NSA and the FBI in conducting surveillance. Fourth, Congress should require amicus participation in politically sensitive FISA cases by finally enacting a robust amicus provision of the sort that passed the Senate in 2020 with 77 votes. Nearly a decade after the Trump campaign and transition were illegally surveilled, this key reform, which would have prevented many of the abuses that occurred in 2016, is still not in place. And I have seen the impact of that outrageous abuse in my separate work representing Carter Page in challenging that abuse in court. And once again, I applaud this committee for including a robust amicus process in the reform legislation last year, and I urge you to do so again, also as a condition of the new 702 reauthorization. In short, with every passing year, it's harder to square our emerging surveillance state with the consent of the governed articulated in the Declaration of Independence and embodied in your article of the Constitution, Article I. But with bipartisan cooperation that has come to define this committee's work in this important area, I'm confident that you can right the ship.

Chairman Jim Jordan (R-OH)SPEAKER_15

Thank you, Mr. Chair. Mr. Czerniawski, you are recognized for 5 minutes.

Mr. James CzerniawskiSPEAKER_26

Thank you, Mr. Chairman, Ranking Member Raskin, and members of the Judiciary Committee for holding this critical hearing on the Foreign Intelligence Surveillance Act. Our founding fathers enshrined individual liberty and privacy as bedrock ideals of our Constitution. Yet, over the years, we've seen a surveillance state that only continues to expand, operating with limited accountability, all under the guise of national security. And national security is vital, and few would deny the many dangers facing our great nation today. I would know firsthand, growing up in Queens, New York, and experiencing the terrible events and aftermath of 9/11, a tragic day that showed us the cost of being unprepared, but also demonstrated just how quickly extraordinary powers, once granted, can become normalized. And history warns us of the dangers of unchecked government power. Time and time again, we have caught the intelligence community raiding the civil liberties fridge, taking liberties that were supposed to be off-limits, apologizing barely when they're caught if we're lucky, promising to never do it again, and then returning to business as usual. It would be humorous if the consequences to Americans' rights were not so serious. Too often, agencies appear more concerned with managing bad headlines than safeguarding the privacy and rights of the people they were created to serve and protect. This repeated cycle of violations has resulted in an erosion of public trust in the very institutions charged with keeping Americans safe. In December of 2024, CNN's Harry Enten cited Gallup polling showing that support for the FBI in particular was at an all-time low, with just 41% of respondents saying that the agency was doing either an excellent or great job. That represented an 18% drop in just 10 years. That is a damning indictment against the key agency responsible for keeping Americans safe. An intelligence apparatus that lacks the public trust becomes less effective, not more. Americans are less likely to cooperate with, have support for, or believe in institutions that they fear. And that is precisely why reforms are not optional. They are urgently needed. Congress has the responsibility to restore the balance. And when it comes to addressing the litany of issues under FISA, there are many out there in terms of solutions. But here are four key reforms that Congress should prioritize: First, close the backdoor search loophole that allows for warrantless searches of Americans' communications. Second, close the data broker loophole, which lets agencies buy their way out of constitutional constraint. Third, strengthen third-party oversight at the FISA Court, improving due process and casting sunlight on decisions too often made in darkness and secrecy. And lastly, fix the overly expansive definition of an electronic communication service provider, a definition that dangerously broadened the kinds of entities that can be deputized into the surveillance apparatus, a recent issue stemming from FISA's reauthorization under the Reforming Intelligence and Securing America Act, also known as RISAA. These reforms that I highlighted here today will not end surveillance, nor will they prevent legitimate national security operations. The country will not go dark, nor will it find itself defenseless against foreign threats. But what they will do is ensure that Americans' rights are not flagrantly disregarded in the process of carrying out those duties. The Constitution is not simply a piece of parchment to be admired. This is a moment to prove that America's strength lies not only in its defenses, but in its devotion to liberty. Let us stand firm so that freedom is not just promised, but practiced. As the committee with primary jurisdiction, you have the power to shape policies that balance security and freedom. And by advancing meaningful reforms, you can restore public trust, safeguard rights, and ensure that our intelligence agencies serve the American people, not surveil them. I thank you for the opportunity to share our thoughts with you today. I look forward to the conversation and to answering your questions.

Chairman Jim Jordan (R-OH)SPEAKER_15

Thank you, Mr. Czerniawski. Ms. Goitein, you are recognized for 5 minutes.

Ms. Elizabeth GoiteinSPEAKER_01

Chairman Jordan, Ranking Member Raskin, and members of the committee, thank you for this opportunity to testify. Congress conceived and enacted Section 702 as a foreign terrorist surveillance program, but over the last 17 years, it's become something very different. Today, Section 702 is a rich source of warrantless access to Americans' communications. It is long past time for Congress to put an end to this betrayal of Americans' trust. Section 702 authorizes the government to target any foreigner overseas for foreign intelligence purposes and to collect all of their communications without an individualized court order. This surveillance inevitably sweeps in Americans' communications in large amounts because Americans communicate with foreigners. And because those foreigners need not be suspected of any wrongdoing, these communications can and do include purely innocent conversations between Americans and their friends, family members, and colleagues overseas, a point that was emphasized by the Privacy and Civil Liberties Oversight Board in its 2023 report. Now, if the government's intent were to spy on those Americans, it would have to get a probable cause order, a warrant in a criminal investigation, or a FISA Title I order in a foreign intelligence investigation. The government gets around this requirement by certifying to the FISA Court that it is not using Section 702 as a way to access the communications of particular known Americans. And yet, once the data is in their hands, all of the agencies that receive Section 702 data routinely run 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 have complete data, the FBI conducted more than 57,000 of these backdoor searches. Congress and the FISA Court have attempted to put some limits on this practice, but the FBI has engaged in persistent and widespread violations of those limits, according to the FISA Court. Those violations have included searches for the communications of members of Congress and congressional staffers, protesters from across the political spectrum, multiple U.S. government officials, journalists and political commentators, and more than 19,000 donors to a congressional campaign. In April of last year, Congress passed the Reforming Intelligence and Securing America Act, which sought to rein in the FBI's backdoor searches, largely by bolstering internal oversight and reporting mechanisms. We don't know what the impact of these reforms has been, however, because the FBI failed to track all of its queries, as required by law. Specifically, last August, the Justice Department discovered that the FBI was using a tool to search for the communications of specific individuals, including U.S. persons, from among a particular target's communications. The FBI did not count these as queries, and so it didn't follow any of the procedures required by law, such as obtaining attorney approval or providing a written justification for U.S. person queries. The government told the FISA Court that it lacked the information to determine whether there was a sufficient legal basis for these queries. 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 5,518. That's the number of known queries, the queries that the FBI actually counted. The total number of queries remains unknown, as does the FBI's compliance rate. This is important information, and Congress should have it before it reauthorizes Section 702. But let me be clear, even if the FBI conducted only 5,000 warrantless searches for Americans' emails, text messages, and phone calls last year, that would be 5,000 too many. Warrantless access to Americans' private communications is an invitation to government overreach and abuse under any administration. All of the internal oversight in the world cannot substitute for the balance that the Framers struck in the Fourth Amendment. As Justice Roberts said in a 2014 case about the privacy of our cell phones, the Founders did not fight a revolution to gain the right to government agency protocols. Congress must do now what it should have done years ago: require the government to get a warrant or a FISA Title I order before accessing Americans' communications obtained under Section 702. Thank you, and I look forward to your questions.

Chairman Jim Jordan (R-OH)SPEAKER_15

Thank you, Ms. Goitein. All of you, well done. Without objection, the following documents will be included in the record: a letter from Reform Government Surveillance about the need to reform the Foreign Intelligence Surveillance Act, a letter from a coalition of 25 organizations about the need to reform Foreign Intelligence Surveillance Act, and a statement for the record on the topic of today's hearing from the Electronic Frontier Foundation. We will start with the gentlelady from Florida who was part of our working group last year on this issue. The gentlelady, Ms. Lee, is recognized from Florida.

Rep. Laurel Lee (R-FL)SPEAKER_27

Thank you, Mr. Chairman, for holding this hearing, and to our witnesses for appearing with us here this morning. Last Congress, I was proud to sponsor the Reforming Intelligence and Securing America Act, or RISAA, which was signed into law. RISAA included sweeping reforms designed to bring meaningful changes to surveillance operations and prevent the past abuses of FISA from occurring again. As Section 702 is now up for reauthorization, I'm committed to working with this committee to pass a bill that equips our intelligence community with the tools that they need to protect our national security against threats while continuing to protect the civil liberties of Americans. There are two facts that should be evident from today's hearing. First, serious failures occurred under prior FISA and Section 702 authorities, particularly in the FBI's queries of U.S. person data. Second, Congress acted, reforms were imposed, and those reforms are now demonstrably working. The Department of Justice Inspector General has now completed the statutorily required post-reform review under RISAA. That report confirms that the FBI did, for years, run noncompliant U.S. person queries, that the Foreign Intelligence Surveillance Court found those practices inconsistent with both statutory law and the Constitution, and that this problem persisted well into the 2020s. Those facts are gravely serious, demanded correction, and did not resolve themselves. But the IG also found that reforms from RISAA have been implemented, including mandatory preapproval by supervisors or attorneys for U.S. person queries, mandatory DOJ audits of every one of those queries, written factual justifications, escalating discipline for negligent, reckless, and intentional violations, and many others. Most importantly, the data now shows a dramatic reduction in noncompliant queries. The IG found that widespread noncompliant querying no longer appears to be occurring and that the remaining errors are overwhelmingly administrative, typographical, as opposed to structural or abusive. None of this means that oversight is finished. The IG explicitly noted that its post-reform review covers only one year and that continued monitoring is essential. Today, we must continue to assess what further action is needed while recognizing the purpose of FISA, the FISC, and 702. Holding the FBI accountable does not mean stripping the FBI of targeted vital tools that are needed to protect the American people. We did not respond to the past failures by abandoning national security. We responded by tightening the law, raising the standards, hardwiring accountability, and making violations visible and punishable. And that is what we must do again. Mr. Schaerr, as you know, RISAA now requires the FBI to obtain supervisory or legal approval before conducting U.S. person query of Section 702-acquired information, except when there's a reasonable belief that the query could help mitigate or prevent threat to life or serious bodily harm. Why was that additional layer of oversight

Mr. Gene SchaerrSPEAKER_19

important? It was a good change, and it certainly reduces the number of abusive instances of surveillance and examining 702 data that we saw in the past. As we've all discussed, there are several other things that need to be done, but that was a very good and wise change in my view.

Rep. Laurel Lee (R-FL)SPEAKER_27

And to what extent has the increased auditing and mandatory reporting, uh, in your perspective, changed personnel behavior? Are there measurable improvements with this compliance? And tell us specifically what additional requirements you believe we need to impose.

Mr. Gene SchaerrSPEAKER_19

Well, there do appear to be improvements. However, as Ms. Goitein mentioned, because the FBI has apparently changed what it considers to be a query, it's not entirely clear the extent to which the number of queries has actually been reduced. And in terms of additional reforms, I would just reiterate the four that I mentioned in my testimony: closing the data broker loophole entirely. Especially if the number of queries is relatively small, there's no longer any argument that it would be a huge administrative burden to get a warrant before the database is searched on Americans, right? And that's something that prosecutors do all the time. They have well-established mechanisms whereby they go to a magistrate. In this case, it would be the FISC, but they send them an email, they outline why they think a warrant is warranted, and they typically get a warrant very quickly in response. It's not a huge burden of the sort that would be suggested if you looked at the Carter Page warrant applications, for example. The Carter Page warrant applications were very extensive, but they are not typical of warrant applications in general. Typically, getting a warrant is a very simple and quick process when a prosecutor has a good reason for getting it.

Rep. Laurel Lee (R-FL)SPEAKER_27

Thank you, Mr. Chairman. I yield back.

Chairman Jim Jordan (R-OH)SPEAKER_15

The gentlelady yields back. Gentleman from Maryland is recognized.

Ranking Member Jamie Raskin (D-MD)SPEAKER_07

Thank you, Mr. Chairman. Thanks to all the witnesses for your testimony. Ms. Goitein, let me start with you. Lord Acton famously said that power corrupts, absolute power corrupts absolutely. There was a Supreme Court decision called Smith v. Maryland 50 years ago about the pen register, where Marshall and Brennan said that unregulated government monitoring of people's private communications is most fearful for people who have nothing to hide, people who've not done anything illicit. And I wonder if you would maybe reflect for a moment on those two thoughts and the policy choice that confronts us today.

Ms. Elizabeth GoiteinSPEAKER_01

Yeah, absolutely. I think that's true. There is a sense, and we hear it sometimes from those who actually oppose getting a warrant requirement, that if people haven't done anything wrong, then they don't need, they shouldn't have any need for the protection of a warrant. By this view, warrants protect the guilty, not the innocent. That makes no sense, right? Warrants are there to make sure that people who are in fact innocent are not subject to these searches and that the government has to have probable cause that someone has engaged in wrongdoing in order to access their private communications. There are all kinds of ways that access to private communications can be used against a person, even if they show no evidence of crime. And we see this in countries that don't have Fourth Amendment protections or the constitutional protections we have in this country. One of the primary features of authoritarian regimes is that people are tracked and that their communications are monitored, and this is used to keep them in line and prevent political dissent. That is not America. That should not be America. And the Fourth Amendment is an absolutely critical safeguard against that kind of overreach.

Ranking Member Jamie Raskin (D-MD)SPEAKER_07

I'm troubled by the government's contracts with Palantir to create software that allows the government to assemble and combine previously siloed information in particular departments with data purchased from data brokers. Could you explain to the committee how purchased data can be used to compile comprehensive profiles of American citizens?

Ms. Elizabeth GoiteinSPEAKER_01

Sure. The word silo sounds very negative. But in fact, there's a good reason why data that is collected for certain purposes isn't necessarily widely shared. Often, if there's a major privacy intrusion involved in collecting the data, what justifies that privacy intrusion is the specific use to which the data is being put. That same balance of factors doesn't apply in every situation. And so it doesn't make sense to distribute the data more widely where the privacy intrusion is greater and the justification might be lesser. So you have different parts of the government that are obtaining very sensitive data, sometimes from data— often from data brokers. This is often data that is so sensitive that it would need a warrant or a subpoena or a court order to acquire if the government wasn't able to purchase it from a data broker. And this sensitive information may be used initially for very specific purposes if they are all— all these pieces of data are shared across the government and put together, it is possible, it could be possible to build dossiers on Americans that would give a startlingly complete picture of their private lives, their associations, their habits, their beliefs. This is information that our government in a free society should not have access to unless there is a specific justification for a specific purpose.

Ranking Member Jamie Raskin (D-MD)SPEAKER_07

And that's what the warrant requirement is all about. Exactly. So, like a lot of members of this committee on both sides of the aisle, I'm a former prosecutor. And perhaps, Mr. Tolman, you could address this because you were the US attorney in Utah, as I understand it. When I first heard about this stuff, I confess that my reaction was, well, prosecutors oftentimes come into possession of information without a search warrant. For example, the Chimel search, a search incident to arrest, will produce evidence of another crime. The Belton search with automobile stops. In some sense, that becomes the bread and butter of what a lot of prosecutors do. And so I thought to myself, well, if this information just accidentally, inadvertently comes into the possession of the government, then what's the big deal of letting the government use it? And I wonder why, as a former prosecutor, you would say this really is a completely different matter, and that's comparing apples and oranges.

Mr. Brett TolmanSPEAKER_05

Yeah, I appreciate the question, because I think we think of it wrong when we assess the use of extraordinary tools to gather intelligence in this country. We're not looking at it through the criminal justice system lens. We're looking at it through national security. And there's the mentality of national security review is that the Fourth Amendment does not apply. So once you cross that line, you no longer are concerned about whether or not you're following certain constitutional protections. And that should scare American citizens that we have people that will exercise that power who have crossed that line and are no longer thinking of it in terms of what they traditionally would as a prosecutor.

Ranking Member Jamie Raskin (D-MD)SPEAKER_07

Thank you, Mr. Chairman.

Chairman Jim Jordan (R-OH)SPEAKER_15

You bet. The gentleman from Arizona is recognized. Mr. Biggs.

Rep. Andy Biggs (R-AZ)SPEAKER_10

Thank you, Mr. Chairman. It's good to see all of you again, and hopefully we have an even better outcome this coming year than we had last time. So let's just talk about this for a second. Is the idea that an executive agency is going to have a manager, a supervisor review to determine whether you should actually have access to sensitive data, is that the same thing as an independent judicial body requiring you to produce probable cause in order to get a warrant to search for that same sensitive data? Just each one of you, is that the same thing?

Mr. Gene SchaerrSPEAKER_19

Not at all. Yeah, it, it may be, it may be useful, but, but the process the Constitution puts in place for dealing with those kinds of controversies is that the Article III branch serves as an independent check on the, on, on the executive branch in order to ensure that Americans' privacy is protected. And we shouldn't, we, we shouldn't abandon that lightly.

Rep. Andy Biggs (R-AZ)SPEAKER_10

Others quickly.

Mr. Brett TolmanSPEAKER_05

I would quickly say where you stand on an issue depends on where you sit. I rarely had any supervisor that pushed back against any request I had to approach either the grand jury or a judge for a warrant.

Rep. Andy Biggs (R-AZ)SPEAKER_10

Yeah.

Mr. James CzerniawskiSPEAKER_26

Yeah, I agree with what's been said. I think that simply having a manager in place doesn't go and have the same kind of protection as a, as a judge.

Rep. Andy Biggs (R-AZ)SPEAKER_10

Ms.

Ms. Elizabeth GoiteinSPEAKER_01

Goitein. I couldn't agree more. And also, it's a different standard. Probable cause is a very different standard from reasonably likely to produce foreign intelligence.

Rep. Andy Biggs (R-AZ)SPEAKER_10

Yeah, it's not only a different standard, it's a different entity that the Constitution has established to protect the rights of all people, guilty and innocent. It protects everybody's rights. But when we say, Okay, we're going to allow the FBI supervisor, we're going to trust the FBI supervisor, hey, have they been approved by either the voter or by the House of Representatives? No. They've been hired by somebody. They're working in the same agency, ostensibly with the same objective, rather than the objective of protecting rights. So that's an interesting dichotomy there. The next thing is, when we get to this notion of the Fourth Amendment Not for Sale, have you seen instances where the federal government or state or local government has attempted to go around constitutional protections by buying data from private entities and then circumventing the Fourth Amendment requirement, Ms. Goitein?

Ms. Elizabeth GoiteinSPEAKER_01

It happens constantly. The Supreme Court has held that cell phone location information, historical cell phone location information, in sufficient amounts, a week's worth of historical data, is protected by the Fourth Amendment and that the government actually needs a warrant to compel production of it. And yet, multiple federal agencies, the FBI, DEA, Secret Service, different components of DHS, Department of Defense, IRS—I think mostly all of them—are buying access to vast databases of Americans' cell phone location information.

Rep. Andy Biggs (R-AZ)SPEAKER_10

So, we also know that the definition of query is now under dispute, apparently. Can you expand on that, Mr. Schaerr? You touched on that. Can you expand on that just for a second?

Mr. Gene SchaerrSPEAKER_19

Apparently what the FBI did recently is they they started treating a mechanism by which they sort data in the database, which of course requires them to to look at the names and identifying information about specific people, but apparently they have some kind of a sorting process that they go through in looking at the data, and they don't count the sorting as a query. They only actually count as a query when they when they drill down on a on a specific individual. And

Rep. Andy Biggs (R-AZ)SPEAKER_10

So there is no way to determine how many actual what used to be called queries are taking place under the new system? We don't know? But the IG just reported a couple months ago that it was 9,000. 9,000. So let's just assume for arguendo that that is the correct number. Well, then that is a manageable number to require a judicial warrant before you conduct that query, is it not, Mr. Tolman?

Mr. Brett TolmanSPEAKER_05

It absolutely is. And in fact, my conversation with a former chief justice of the FISC was his greatest concern was the fact that there was so much pressure to grant everything that was presented to them that they didn't have the ability to review it thoughtfully. Now they do.

Rep. Andy Biggs (R-AZ)SPEAKER_10

Um, my, my time has expired. There's so much more I would like to ask, but Mr. Chairman, I have, uh, some articles I'd like to include into the record, if I might.

Mr. Brett TolmanSPEAKER_05

Sure.

Rep. Andy Biggs (R-AZ)SPEAKER_10

This is a Truth from April 10th, 2024, from President Trump saying, Kill FISA. It was illegally used against me and many others. They spied on my campaign. This one is entitled "Warrantless FISA searches are unconstitutional, judge says in landmark ruling."

Chairman Jim Jordan (R-OH)SPEAKER_15

Without objection.

Rep. Andy Biggs (R-AZ)SPEAKER_10

Government surveillance erodes trust between citizens and government.

Chairman Jim Jordan (R-OH)SPEAKER_15

Without objection.

Rep. Andy Biggs (R-AZ)SPEAKER_10

More than 30 bipartisan organizations urge Congress against reauthorizing spy powers in spending bill.

Chairman Jim Jordan (R-OH)SPEAKER_15

Without

Rep. Andy Biggs (R-AZ)SPEAKER_10

objection. And then one entitled, "Curbing the Power of Surveillance State: Section 702 Re-

Chairman Jim Jordan (R-OH)SPEAKER_15

Objection.

Rep. Andy Biggs (R-AZ)SPEAKER_10

Thank you, Mr. Chairman.

Chairman Jim Jordan (R-OH)SPEAKER_15

Yeah, I would just add, before recognizing the gentlelady from California, to the gentleman's first point, not only is permission from a manager supervisor in an agency different than probable cause, they didn't even follow the rules they'd set up within the agency with the manager so that they didn't even follow those rules. That is, that is why we need the tried and true standard. The gentlelady from California is recognized.

Rep. Zoe Lofgren (D-CA)SPEAKER_28

Thank you, Mr. Chairman. As I listened to the witnesses, I was thinking back. It was, I think, a little more than 10 years ago that Mr. Massie and I offered an amendment with the help of then-Congressman Justin Amash that would have prevented all of this. It did pass the House and never went into effect, and we have been, over the years, striving to do this, and somehow, no matter which party is in the majority, the Intelligence Committee always manages to thwart our efforts for reform. And I am hoping that that could change this year. We certainly failed last year in fixing the core problems. We have a chance to change this. And in fact, I'm working to reintroduce an updated, bipartisan, bicameral Government Surveillance Reform Act, which will finally require warrants to read Americans' messages, ban dragnet surveillance, stop the government from buying personal data. And I'm hoping that many on this committee will join in that effort, as we have in the past. This is one of those issues where we do work together on a bipartisan basis, and I'm hoping that we can finally succeed this time. You know, the FISA court itself has called out the FBI for repeated unlawful searches, snooping on political donors, journalists, members of Congress, even protesters. And I think it's it's past time for us to fix this. If the government wants to read an American's email or texts caught up in foreign surveillance, they should need a warrant. The FISA court found that the FBI misused the loophole hundreds of thousands of times. The NSA can resume collecting communications that merely mention a foreign target; that's permitted by law. They can still buy private data like location, web browsing, messages. And we're seeing, as we've mentioned, a growing trend of federal agencies, including defense and intelligence, contracting with companies like Palantir to compile data. So, I'm I'm hopeful that we can move forward, but I have a couple of quick questions.

Rep. Zoe Lofgren (D-CA)SPEAKER_28

Ms. Goitein, there is an expanded scope of who counts as an electronic communication service provider. You referenced that in your testimony, although the practical effects, I think, are classified. Could you briefly explain what kind of businesses could now be required to assist government surveillance, such as data centers, cloud storage providers, or even companies that simply manage equipment that carry communications?

Ms. Elizabeth GoiteinSPEAKER_01

Sure. So in the past, the way that the surveillance has worked is that the government has served directives on electronic communications service providers. We're talking about Verizon and Google, companies that actually have direct access to our communications because they facilitate our communications, that's the service that they provide, and they would turn over the communications of targets. There was a FISA Court opinion a few years ago which found that data centers for cloud computing, at least it was reported that that was the type of provider at issue, did not qualify under that definition. The Biden administration wanted to make sure that they were included, but they didn't want to reveal that that was the type of provider at issue because that information was and remains classified. And so they deliberately solicited an overbroad amendment, one that was written in vague and very broad terms so that no one could figure out who what kind of provider it was. And so what it now allows is the government can compel the assistance of any provider of any service as long as that provider has access to equipment on which communications are routed or stored. Well, pretty much every American business and a lot of organizations provide some kind of service, and they all have access to communications equipment. That's a phone or a computer. So, and there are some exceptions: hotels, restaurants, libraries, but the vast majority of ordinary businesses that Americans frequent, and, for example, the commercial landlords of the buildings where tens of millions of Americans go to work every day, can be forced to assist the government with surveillance. And this part is really important, because these businesses don't have the ability that Verizon or Google have to isolate and turn over specific communications. They may have to give NSA personnel direct access to their communications equipment and all the communications that run through that equipment, including purely domestic communications, and then the NSA will basically be on the honor system to extract the communications of foreign targets.

Rep. Zoe Lofgren (D-CA)SPEAKER_28

Thank you, Mr. Chairman. I just note that we also need to pass the privacy bill that Congresswoman Eshoo and I introduced a while ago and I'm reintroducing because we need to get it at FISA, but we also need to get it at the source so that people cannot sell our private data. And with that, I yield back.

Chairman Jim Jordan (R-OH)SPEAKER_15

I thank the gentlelady. The gentleman from— the gentleman from California is recognized.

Rep. Darrell Issa (R-CA)SPEAKER_16

Thank you. Briefly, does anyone on this panel believe that Senator Blackburn, Senator Graham, Senator Hagerty, Senator Hawley, Senator Johnson, Senator Lewis, Senator Sullivan, Senator Tuberville, or Congressman Mike Kelly are a risk to national security, or would be reasonably believed to be a risk, or should have been surveilled under a program targeting them? Seeing none, I will move on. They're my friends. They were targeted because they were Republicans. That is unforgivable, and the FBI cannot expect anything other than a consent decree and criminal punishment if they ever do it again. Anything less—and I'll go to Mr. Tolman—if you were prosecuting a case, would you accept anything less from somebody who committed that crime, assuming you're not locking him up for years for doing it in the beginning?

Mr. Brett TolmanSPEAKER_05

No, absolutely not. But our history shows, for example, in the attorney Kevin Clinesmith that he was prosecuted for his misrepresentation to the FISC, but received no jail time. So is there meaningful deterrence? And presently there is not.

Rep. Darrell Issa (R-CA)SPEAKER_16

Well, it is true that no one is above the law, but there's a caveat: unless you are the law. And unfortunately, the FBI and the Department of Justice are the law. And although I trust the current inhabitants, I trusted the Bush people, and I was wrong. I trusted each of the successors, and I was wrong. Let me just go through a couple of things, sort of to put it in perspective, maybe for the record, maybe for people who are truly laypeople. If If I wanted to find out if you were growing pot illegally in your house and I flew over with a heat sensor and then determined that you had hotspots and then raided your house without a warrant, what would I be doing? Would that be okay?

Mr. Brett TolmanSPEAKER_05

No, it would not be okay.

Rep. Darrell Issa (R-CA)SPEAKER_16

And isn't it true that the Kyllo decision by the court was right on that point? But in that in that, if I understand correctly, what they did is they said that the reason it was unacceptable versus, let's say, just flying over in an airplane and seeing plants growing in your backyard, was because of the tools used, correct? Now, as we're talking about this data, is that kind of data available to Mr. Biggs or Mr. Jordan? So, by definition, the first pillar of the Kyllo decision, which is that the tools are not readily available to the public— this massive amounts of data and the ability to gather it, they wouldn't pay $100 million if it was available any other way, right? If they could just get it themselves. So they've met the first requirement. What is any second requirement that you can see that would allow them, having met the first requirement, that what they're getting is material, a tool, if you will, not available to the public? It's not ordinary eyesight. It's not just walking up and sniffing something at the door. If this tool is, by definition, special, then the use of the tool falls directly underneath this historic question of Fourth Amendment without anything else. Does anyone see a way that they can carve their way out of this? Yes.

Ms. Elizabeth GoiteinSPEAKER_01

Well, they will try to say that a lot of this information just isn't protected by the Fourth Amendment at all, because because we are voluntarily sharing it with— But

Rep. Darrell Issa (R-CA)SPEAKER_16

the Fourth Amendment— Oh, you're absolutely right, and I agree with you, except the Fourth Amendment, I personally

Ms. Elizabeth GoiteinSPEAKER_01

don't think that you're not agreeing with me.

Rep. Darrell Issa (R-CA)SPEAKER_16

I personally No, I agree with you that that's what they'll try to do. I personally have seen this tool that can pick up heat and water damage above your ceiling. My son has one. It's fabulous. It lets you find where you got a leaky pipe. It lets you find where there's a leak in your heating system. Every H, you know, heating and air conditioning company either has one or should have one. But the fact that a special tool exists doesn't change the fact that it's a special tool, does it? And by the way, heat coming out of your house was never considered to be protected until the court said the tool and the source of the tool is what determines that. It's not an ordinary eyesight. So I'm going to close, Mr. Chairman, by saying Shame on the court for not already having taken a case up and done this. But if they won't do it, this committee must do it in reauthorization. And I yield back.

Chairman Jim Jordan (R-OH)SPEAKER_15

Gentleman yields back. The gentleman from Tennessee is recognized.

Rep. Darrell Issa (R-CA)SPEAKER_16

Thank you, Mr. Chair.

Rep. Steve Cohen (D-TN)SPEAKER_17

Ms. Goitein, we've been doing this— Ms. Goitein, we've been doing this for a long time on different issues. Let me ask you a question. The problem is, is it the law, or is it the enforcement of the law?

Ms. Elizabeth GoiteinSPEAKER_01

It's both, but those two things are related. One of the things that I've wondered when I look at these massive compliance failures over the years, I don't think all of those compliance failures were intentional. I don't think all of them were negligent. I think that they have built a system that is so massive and so complex, and the rules are just so sort of arcane and intricate that it might actually be impossible to completely enforce the rules as they would need to be enforced to protect Americans' privacy. That is one major advantage to the warrant requirement is that it's so much simpler. You reduce the need for all of these massive layers of oversight, for different rules, for different tools you might use, for different queries, figuring out is this a query, is this not a query. It's very, very simple. If the government wants to access an American's communications, they submit a warrant application, they go to the court, or a Title I application. It simplifies the process, and that will itself, even leaving aside the fact that you now have an independent branch of government performing this review, will make compliance achievable.

Rep. Steve Cohen (D-TN)SPEAKER_17

With AI, are we going to have more and more problems because there'll be more and more data?

Ms. Elizabeth GoiteinSPEAKER_01

Absolutely. And I think with AI, we're going to have to really re-examine, um, how U.S. person query is even defined. Because if AI is used in a way that can select U.S. person communications without actually using what we think of as U.S. person identifiers, then we are sort of right back where we were before. With really no limits on governmental access to U.S. person communications. So, yes, that is an issue we will have to—

Rep. Steve Cohen (D-TN)SPEAKER_17

Has the FISA Court been fairly consistent in how they've dealt with these issues?

Ms. Elizabeth GoiteinSPEAKER_01

What I would say is that the FISA Court has been remarkably tolerant of just this long history of abuses. We focus on the FBI's querying abuses in recent years. This program has been plagued with violations and noncompliance since its exception—since its inception, and I'm not just talking about the FBI, I'm talking about the NSA in particular, the CIA. The NSA was violating its query restrictions systemically for almost a decade after the program was put in place. And yet, every year, the FISA Court has reauthorized this program. A couple of times, they've waited a month—a few months for new layers of oversight to be put in place, but to me, it's an example of fool me once, shame on you, fool me twice, shame on me, because it's been a 17-year pattern of violations, extensive, systemic violations, and yet the FISA Court points out the violations, is upset about them, says they're unacceptable, and reauthorizes the program.

Rep. Steve Cohen (D-TN)SPEAKER_17

Let me go to another issue, I guess. Mr. Issa asked you about those seven or eight, nine senators and reps and whether anybody thought that they should be subject to any reviews. Well, as I understand it, the idea was not that they were because they were Republicans; it was because they had Mr. Smith had reason to believe that, and a court agreed in issuing a warrant, that they had possible connections with the Trump White House and the overthrow of our government. Would that not give any of y'all belief that they should have been queried or looked at their records or their phone calls? Ms. Goitein.

Ms. Elizabeth GoiteinSPEAKER_01

Oh, I'm so sorry. I thought you were asking— can you just repeat that? I, I was—

Rep. Steve Cohen (D-TN)SPEAKER_17

the idea that Jack Smith got a warrant.

Ms. Elizabeth GoiteinSPEAKER_01

Yeah.

Rep. Steve Cohen (D-TN)SPEAKER_17

Because— and apparently because he thought that these people might have some contact with the president and the committee to overthrow the government, whatever it was.

Ms. Elizabeth GoiteinSPEAKER_01

Right. So, I think what we're dealing with here is the fact that subpoenas for communications records are extremely easy to obtain. You actually don't have to show that the person in question is themselves involved in any sort of criminal activity. The standard is one of relevance. That's a very low standard. And I think when we're talking about communications metadata, which is incredibly revealing information, this is the information that the NSA was collecting in bulk

Rep. Steve Cohen (D-TN)SPEAKER_17

just go quick. My time's about to run out. I'm

Ms. Elizabeth GoiteinSPEAKER_01

sorry.

Rep. Steve Cohen (D-TN)SPEAKER_17

Million-dollar question. Do you think those 9 people, because they had their metadata looked at, should get $500,000 to $1 million simply by going to federal court? Like,

Ms. Elizabeth GoiteinSPEAKER_01

well, I think if we're going to do that, then I think that should be open to everybody who's had their metadata acquired based on this very, very low standard. And that's— that'll be a little tricky.

Rep. Steve Cohen (D-TN)SPEAKER_17

Thank you. I yield back.

Chairman Jim Jordan (R-OH)SPEAKER_15

Gentleman yields back. Mr. Tolman, are we all in the database? Every single person? Every single American?

Mr. Brett TolmanSPEAKER_05

Yes.

Chairman Jim Jordan (R-OH)SPEAKER_15

Yeah. This database is huge, right? They're getting information on foreigners, but we're all getting swept up in this. So this is one giant—I call it the giant haystack of information. And you got 10,000 people at the FBI who can just, I'm going to search on Mr. Tolman, on Ms. Goitein. I'm going to I'm going to search on whoever I darn well want. And they've demonstrated that they can't police themselves. Whatever the agency is, whatever rules they have, they can't police themselves. So this is why Congress has to do it. And why not use the tried and true rule? That to me is like, this is how big this is. I want to go down through a couple things here that have been raised. First of all, to the gentleman from Tennessee's questions, the and getting people's toll records, I do have a concern with this because some of this was done for a long period of time. Mr. Smith went and got the toll records subpoenaed from the carriers, the toll records of the Speaker of the House of Representatives. And frankly, he waited until Mr. McCarthy became Speaker of the House to go get his toll records from three years prior. And the real concern I have with that is they did it for a two-month timespan. So, to Ms. Goitein statement, you can pattern someone's life. You can figure out all kinds of things because they knew who Mr. McCarthy called, who called him, when the call took place, how long it lasted. And if Kevin initiated the call, they knew where he was at when he did so. Well, Shazam, you can figure all kinds of things out. So that's the concern when they do this, and we need to, I think, frankly, look at it. It's why this committee passed the non-disclosure, the gag order. So that's the other thing: they get that information, and then they tell the judge—they go to the judge, tell the carrier, tell AT&T that they can't tell the customer that the government just got their phone logs for two months, can pattern their life and know all that stuff I just talked about. That's a concern. And so we've passed legislation out of this committee, we hope it passes the House here soon, which puts limits and restrictions on that, not just for members of Congress, of course, but again, to everyone. I think that's a good piece of legislation we passed. Mr. Tolman, I'll come to you.

Mr. Brett TolmanSPEAKER_05

It's essential.

Chairman Jim Jordan (R-OH)SPEAKER_15

Yeah, it's essential. Everyone agree with that?

Mr. Brett TolmanSPEAKER_05

Yes.

Chairman Jim Jordan (R-OH)SPEAKER_15

Yeah. So we got the NDO issue. Mr. Raskin and I were talking about these these areas of concern with privacy. We have the third-party data purchasing data, this what we call the Fourth Amendment Is Not for Sale, because if you can buy stuff that would otherwise require a warrant, shouldn't be able to do that. So we want we got to do some work on on that issue. Then there's the fundamental question we're asking for for FISA 702. Go get a warrant before you get the ability to search people's. And then there's this compilation of data. And so I'm just interested, any thoughts you have on

Chairman Jim Jordan (R-OH)SPEAKER_15

Should we— we're trying to strategize, the ranking member and I and the committee. How much do we try to put in 702? Do we do separate legislation? We're trying to figure that out, too. But I'm just curious, any thoughts that you would have? Maybe we'll just go down the line. So, let's start with the Democrat, or let's go with you, and then we'll move across.

Ms. Elizabeth GoiteinSPEAKER_01

Yeah I think you really can't address Section 702 in isolation because Section 702 is part of a vast ecosystem of often-overlapping surveillance authorities, and if you cut off one avenue of surveillance, the government might be able to turn to another or to exploit gaps in this network of laws to conduct surveillance without any statutory authorization.

Chairman Jim Jordan (R-OH)SPEAKER_15

think we should try it altogether?

Ms. Elizabeth GoiteinSPEAKER_01

Well, it's not that. Frankly, there's a lot you could address and we're not really talking about everything here. I think the four reforms that have been specified here today are certainly a good place to start, right? And that is a warrant for or a Title I order for backdoor searches, that's closing the data broker loophole, fixing the electronic communication service provider definition, and shoring up the role of amici in the FISA Court.

Chairman Jim Jordan (R-OH)SPEAKER_15

Thank you.

Mr. James CzerniawskiSPEAKER_26

I agree with Ms. Goitein that at least for the purposes of FISA, that we want to focus on those four key reforms, because I think that those are the most promising things that we can get addressed. And then for the other kinds of things that you're highlighting, there are other vehicles that we can go and explore in terms of pushing forward.

Mr. Gene SchaerrSPEAKER_19

And I would not limit you yourselves to, to FISA reforms writ narrowly. As, as you all are much more aware than we are, there are only limited windows when legislation can actually get passed by both chambers and signed by the president, and, and those don't come along all that often. And I think it's important to take advantage of them when they do.

Rep. Jefferson Van Drew (R-NJ)SPEAKER_14

Thank you.

Mr. Brett TolmanSPEAKER_05

I would just lastly say, why aren't they capable of of of self-governing in this area? And we have to remember, post-9/11, we shifted the FBI and the Department of Justice's overarching mandate to intelligence gathering for national security purposes. So once you do that, their mentality is not to self-govern.

Chairman Jim Jordan (R-OH)SPEAKER_15

$12 billion we give to the FBI. That's their budget. Over half of it is used on the surveillance stuff versus— I mean, you go talk to average American, they would say, What? Well, I thought the FBI was supposed to be going after traditional bad guys, not not spying on on Americans. So you're you're exactly right, that is that is a problem. One last thing, and I'm I know I'm a little over time, I'll give a little more time to the next next Democrat witness. Someone said, Let it expire. I I forget which of you said that in your opening. Mr. Tolman, the guy who helped put it together. Uh the uh Well, give give me your thoughts on that.

Mr. Brett TolmanSPEAKER_05

Well, without wisdom and in my youth, I bought everything that was argued by the Department of Justice as to why they needed it. Then you see their incapability of actually governing themselves with such power. It would be like 215. We let that expire, and here we are still stopping national security threats. Yeah We didn't think that was possible when 215 expired.

Chairman Jim Jordan (R-OH)SPEAKER_15

Yep, yep. Okay, all right, uh, the gentleman from Georgia is recognized.

Rep. Hank Johnson (D-GA)SPEAKER_31

Thank you, Mr. Chairman. I don't view this committee meeting as the most serious effort when it comes to FISA reform, because if it was, we would have someone from the intelligence community sitting on this panel to give that viewpoint. Now, it's clear that this committee also is not interested in protecting the security, the personal, private security, and the data of American citizens. And that's because it was complicit when this president set up DOGE, the Department of Government Efficiency, and put it in the hands of Elon Musk and then unleashed Elon Musk to collect the private data of citizens through capturing the data of the Social Security Administration, the Treasury Department, the Office of Personnel Management, Health and Human Services, the VA, the Consumer Financial Protection Bureau, the Department of Commerce, the Department of Education, the Department of Energy, the Department of Labor, the Department of Transportation, and others, collecting this data. And the goal was to create a single, centralized government database. And this effort was unprecedented and unauthorized by Congress. And while it was happening, this committee, as it does today, stood silent and complicit and let it happen, and is not concerned about it. I'm concerned about that data. I'm wondering, Ms. Goitein, if you are, as it relates to Section 702.

Ms. Elizabeth GoiteinSPEAKER_01

I'm very concerned about what you're talking about. And in fact, I think I was speaking about it earlier when we were talking about sort of removing the quote-unquote silos. Um, I, I think that the, the access to data, private sensitive data of Americans that is collected by the government on occasion for legitimate reasons, and then maybe sometimes for less legitimate reasons when the government is simply buying up massive databases. Making that data widely available to anyone in government is a major privacy and civil liberties issue.

Rep. Hank Johnson (D-GA)SPEAKER_31

And this committee has not been interested in that. Let me ask a question. The Fourth Amendment, which requires probable cause to conduct a search, also has exceptions to it, such as stop and frisk, such as evidence in plain view, such as search incident to a lawful arrest, such as exigent circumstances. Am I right? That's for people on the street, though, regular people. But people in the suites, before I say that, I'll note that on February 20th of this year, Trump issued an executive order forbidding the federal government, the DOJ, the SEC, and others from applying or investigating the Foreign Corrupt Practices Act. And you all know that that's true. They're not enforcing that. And at this point, international crime perpetrated by American citizens, Trump in the lead with the acceptance of a $400 million jet. He just the other day accepted a peace prize from FIFA, and then the next day they announced that an indictment of FIFA is withdrawn, is being dismissed. Corruption, pay to play, is what's happening under this administration. Let me ask this question. Why shouldn't there be an exception to the warrant requirement in a situation where an FBI agent has a reasonable suspicion that a U.S. person should be queried because that FBI agent has evidence that that U.S. person is engaged in an international conspiracy to commit a mass murder of Americans, and that FBI agent wants to query the 702 database? Why shouldn't there be an exception to the warrant requirement that allows that FBI agent FBI agent to do that? And by the way, I should say that the FBI under Kash Patel and the DOJ under Pam Bondi, I don't have any confidence that they would apply the law justly, that they would act in a legal fashion. I'm afraid of what they will do. It implicates how I'm going to vote this time when it comes to this reauthorization of FISA. I'll If someone could answer that question, why shouldn't there be an exception to the warrant requirement?

Ms. Elizabeth GoiteinSPEAKER_01

Well, certainly if there is an immediate threat and a risk of life or safety, there would be an exception. That's for exigent circumstances. If not, if there's time for the FBI to engage, use its usual investigative techniques, the ones that are less intrusive, that don't infringe on a reasonable expectation of privacy under the Fourth Amendment, they would have time. You said they have had evidence. Maybe they have enough evidence already to get a warrant. If not, they have other investigative techniques at their disposal that are less intrusive.

Rep. Hank Johnson (D-GA)SPEAKER_31

Well, they sure going to have a whole bunch more material to work with also after this DOGE situation has unfolded. I'll yield back.

Chairman Jim Jordan (R-OH)SPEAKER_15

Gentleman yields back. I would just point out that we had those exceptions in the language. In fact, I would think many of us thought we almost had too broad of an exception language in there for, for imminent threat, uh, for a cybersecurity situation if the person gave permission. So we had that in the language. It was as— we were being as generous as you could possibly be, I thought. So,

Rep. Hank Johnson (D-GA)SPEAKER_31

Well, I tell you, I'm going to be looking at at it through a different set of eyes now that this Trump administration is in is

Chairman Jim Jordan (R-OH)SPEAKER_15

place. Just as long as you're— as long as you're a yes vote, we don't care how you get there.

Rep. Hank Johnson (D-GA)SPEAKER_31

Let's not stand up here and act like Democrats are the enemy.

Chairman Jim Jordan (R-OH)SPEAKER_15

I've not done

Rep. Hank Johnson (D-GA)SPEAKER_31

Biden is the knee, Carter Page, and all of that. Let's not stand up here and act like that's the reason why we

Chairman Jim Jordan (R-OH)SPEAKER_15

would just remind them I have not done that.

Rep. Hank Johnson (D-GA)SPEAKER_31

And that's all that we have up here among these witnesses. Among the three Republican witnesses are Carter

Chairman Jim Jordan (R-OH)SPEAKER_15

time of the gentleman has expired, and we will recognize the gentleman from California for 5 minutes.

Rep. Tom McClintock (R-CA)SPEAKER_11

Well, thank you, Mr. Chairman. First of all, I'm not sure the data provided by an individual to the government in, say, an application or a tax return shouldn't be reviewed by the government. That's very different than the government searching for and seizing data that's held by an individual. And I think that's the distinction my friend from Georgia misses. Other than those— I'm not missing anything. Other than those remarks, I am very heartened by the fact that there is a broad bipartisan concern on this issue, reflected by all of the panelists and almost all of the members. As you know, the history of this goes back to 1761, the trial of James Otis of challenging the the writs of assistance, the general warrants of the crown. It was a 25-year-old attorney in the audience in that trial, who was named John Adams. Many years later, he reflected on the trial and said this. He said, every man of a crowded audience appeared to me to go away as I did, ready to take arms against writs of assistance. Then and there, the child Independence was born. In Adams' view, that was the birth of the American Revolution, was the abuse of searches by the crown. And of course, it was also the the birth of of the Fourth Amendment. FISA is abused under Democratic and Republican administrations because it's human nature to acquire power and once acquired, to use it. That's why we divide the powers of government, and that's the reason we have a Fourth Amendment that divides the power of searches between the executive and the judicial branches. And the Fourth Amendment to me is very clear. If you want to look through my stuff, you've got to convince a judge that there's evidence I've committed a crime and list the stuff you want to search for. But we're told that doesn't include metadata like phone records. It seems to me that metadata is a record of my electronic activities, isn't it, Mr. Schaerr?

Mr. Gene SchaerrSPEAKER_19

It certainly is.

Rep. Tom McClintock (R-CA)SPEAKER_11

So why would that not be equally protected under the Fourth Amendment? What am I missing?

Mr. Gene SchaerrSPEAKER_19

Well, I think it is protected under the Fourth Amendment. I think the reason for excluding metadata searches in the last version of the reform bill was just that searching mere metadata is less intrusive, less dangerous than searching the communications themselves. But I think they both are protected by the Fourth Amendment.

Rep. Tom McClintock (R-CA)SPEAKER_11

But they're records of my communications, even if it's not a verbatim transcript of them, and then is that not used to get a warrant to review a, a transcript?

Mr. Gene SchaerrSPEAKER_19

Yes, it could be used.

Rep. Tom McClintock (R-CA)SPEAKER_11

So basically, a general warrant could be used— what is in effect a general warrant— could be used in order to get a specific warrant, correct?

Mr. Gene SchaerrSPEAKER_19

You could view it that way.

Rep. Tom McClintock (R-CA)SPEAKER_11

And so there's no protection left if we're going to go down that road, it seems to me. One, one ultimately has to lead to the other.

Mr. Gene SchaerrSPEAKER_19

Yeah, I, I guess I would still say that the communication itself is more sensitive and more, you know, should, should be subject to higher protection. Um, but you're right, there is a bit of a slippery, slippery slope there. And as, as the chairman said, the last version was quite generous.

Rep. Tom McClintock (R-CA)SPEAKER_11

You dealt with the FISA court quite a bit, and I've been concerned about the secret and centralized nature of that special court. I remember looking at statistics from like 10 years ago, and there were like 35,000 34,000 warrants that had been requested by the government at that point. Only 11 had been rejected by the FISA court,

Mr. Gene SchaerrSPEAKER_19

right?

Rep. Tom McClintock (R-CA)SPEAKER_11

And of course, the approval of warrants of individuals like Carter Page were backed by false statements. Not only were those claims not seriously questioned to begin with, as they should have been, but when it came to light that the FBI had lied in its applications, I'm aware of very few disciplinary actions taken by the FISA Court. There was one prosecution that ended with a slap on the wrist. What are we to make of this?

Mr. Gene SchaerrSPEAKER_19

Well, I think you've just made the case once again for adopting a robust amicus process in the FISC. Obviously, the individuals who are being investigated can't be told that they're being investigated, and so there's a need to have an independent privacy expert, somebody with a security clearance who can be present in especially sensitive FISA investigations. But

Rep. Tom McClintock (R-CA)SPEAKER_11

before the FISC, we dispersed that responsibility across the entire court system, did we not?

Mr. Gene SchaerrSPEAKER_19

Um,

Rep. Tom McClintock (R-CA)SPEAKER_11

in order to get a warrant, you had to go to a district court judge.

Mr. Gene SchaerrSPEAKER_19

That's typically true. In the FISA Title I context, though, of course you go to the FISA Court.

Rep. Tom McClintock (R-CA)SPEAKER_11

Right, but my question is, why don't we go back to the dispersed system where you at least have some decentralization of this, this awesome power?

Mr. Gene SchaerrSPEAKER_19

Well, there's an argument for that. I think what would what would be more important is to be sure that in those decentralized proceedings, if they don't actually give notice to the person who's the subject of the investigation, that the amicus process should be included there as well. It may be more efficient to centralize it in FISC, though.

Chairman Jim Jordan (R-OH)SPEAKER_15

Uh, gentlelady from, uh, Washington is recognized.

Rep. Pramila Jayapal (D-WA)SPEAKER_29

Thank you, Mr. Chairman. Thank you for holding this hearing, and thank you to the group of us on both sides of the aisle that have been very consistent on this and have taken on our own party in power. It does seem like it gets very difficult. People change their views based on who's in power. And so I appreciate the work we've done on a bipartisan basis to really protect the privacy of Americans and make sure that we're upholding our constitutional obligations. I want to go back to this question of queries, Ms. Goitein, because you talked about it quite a bit in your opening statement. And I think that this these preliminary numbers are not really— we just have no idea what they really show. And so I want to talk a little bit more about why we need to approach that current number that's been given to us with caution and also ask you, because this is a clear example of how the FBI just changed the rules and they're not complying. How do we make sure that whatever we write into law— it appears now we have to define query— but what ideas do you have for when we approach this again that we are actually ensuring compliance with our intent?

Ms. Elizabeth GoiteinSPEAKER_01

Well, Congress did define query, and and I'm— I have kind of racked my brain to try to figure out why somebody at the FBI decided that these were not queries. This was a system that allowed FBI agents to retrieve communications associated with a particular case file or facility, which is basically the communications of a particular target. But it also allowed them to to search for particular participants and pull up those participants' communications, and those could include U.S. persons. So it was basically a way to run queries on a subset of Section 702 data, and and the query could be for a U.S. person's communications within that pool. You know, this it's hard for me to understand why this was why they didn't consider this to be a query. One possibility is that there was a dropdown menu involved, and the definition is includes the use of one or more terms to retrieve the unminimized content. So maybe if you're clicking on a U.S. person's account rather than typing it in, maybe that's not being counted as a query. I don't know this for sure. I'm just trying to understand. One of the things that also puzzles me is that apparently the National Security Division just happened to find out about this in August of 2024, and the practice wasn't suspended until early 2025. Why did it take that long to look at the definition, look at what was

Rep. Pramila Jayapal (D-WA)SPEAKER_29

That's right. And it seems to me, Mr. Chairman, that we might be able to do some sort of our own inquiry into this right away and at least get the correct numbers and make sure that we are operating with full data. I want to ask you, Ms. Goitein, also about the the question of 702 does not allow for the targeting of U.S. persons, and yet millions of Americans have been targeted for surveillance under this statute. Why is it important to protect everyone in the United States from warrantless surveillance, does include persons, American citizens and all persons in the United States?

Ms. Elizabeth GoiteinSPEAKER_01

Yeah. I mean, first of all, as a constitutional matter, the Fourth Amendment protects everybody in this country. And so if you believe that a warrant requirement is a constitutional requirement, as a district court held a year ago, as a unanimous panel of the Second Circuit seemed to indicate in their earlier decision, then it applies to everyone in this country. But there are practical reasons as well. Just as collection of the communications of non-U.S. persons incidentally pulls in U.S. person communications, queries, any query, can incidentally retrieve the communications of Americans. And that's because, you know, even if you're querying a non-U.S. person inside this country and pulling up a communication they have with a non-U.S. person target, those communications can have other people involved in them. It can be a group email or a group text that includes any number of U.S. persons. If the non-U.S. person being queried is in this country, that vastly increases the chances that they're going to be in frequent communication with Americans in this country. And so these are queries that pose particular risks to Americans.

Rep. Pramila Jayapal (D-WA)SPEAKER_29

We have been hit with lots of opposition arguments, and so I want to give you one and ask you to refute it. Some people view the apparent decrease in backdoor searches with some alarm and ask whether the FBI is not making queries that it should be making. How would enacting a warrant requirement both protect Fourth Amendment rights while providing a clear process for the FBI to do its work? This was just something raised all the time to us.

Ms. Elizabeth GoiteinSPEAKER_01

Yeah, well, if it is, in fact, the case that FBI agents are not performing legitimate queries because they are, you know, there's too many layers of oversight or they're worried that they will be penalized if if somebody later decides that they shouldn't have made the query, there's really a simple answer to that. Needless to say, the answer is not to get rid of the oversight and go back to all of the queries of congresspersons and protesters and all of that. The answer is to have the government get a warrant to put the burden of gatekeeping these searches where it belongs, which is with the courts. That would reduce the need for all of these layers of internal oversight and whatever sort of administrative paperwork and burden is associated with those layers. And it would also remove any motive that might exist for FBI agents to be excessively cautious. FBI agents would be free to do their job, to vigorously pursue investigations within the law and their professional obligations. And then the courts could do their job, the job that they do in pretty much every context except 702, which is determine whether there is a lawful basis for this.

Rep. Pramila Jayapal (D-WA)SPEAKER_29

Thank you, Mr. Chairman. I hope we can work together on, on actually getting compliance with the real numbers around the queries. Thank you. Yield back.

Chairman Jim Jordan (R-OH)SPEAKER_15

The tried and true method, going to a separate and equal branch of government. Getting a probable cause warrant with imminent threat exceptions is the answer. It doesn't take a genius to figure this stuff out. The gentleman from Wisconsin is recognized.

Rep. Thomas Tiffany (R-WI)SPEAKER_24

First of all, Merry Christmas to all of you. Remember, St. Nicholas is watching, and we're hoping that he does not need a warrant, but we're hoping we can get the federal government to make sure they get a warrant. Mr. Czerniawski, last time you were here, we discussed the concern with RISAA and the definitional expansion of electronic communication service provider. Is that concern still there? And if it is, how are we going to fix it?

Mr. James CzerniawskiSPEAKER_26

Yeah, that concern is still very much there, unfortunately. As Ms. Goitein pointed out, it radically and drastically expanded the definition of what would be captured underneath an electronic service, communication service provider. And because that threat is still there, I think that there's an opportunity with this upcoming reauthorization discussion to go and rein that back in. Now, to their credit in the Senate, Senator Mark Warner did try to go and get some fixes to that definition, but it was stripped out of the Intelligence Authorization Act process. So that problem is still there, and I hope that with this upcoming debate that we can get the fix that's so desperately needed.

Rep. Thomas Tiffany (R-WI)SPEAKER_24

Is there any one in particular that you would point to that you'd say we got to have this in terms of

Mr. James CzerniawskiSPEAKER_26

Yeah, again, I think the most fundamental one is getting a warrant, closing that backdoor search loophole, is really, really integral. But this electronic communication service provider, I think, kind of jumps right up there with it because, again, it is just way too expansive. It goes and conscripts a whole host of businesses into this surveillance apparatus that had no intention of ever being in there, so much so that it was a rare instance where you even saw technology industries go and speak out against this particular definition of language. ITI had submitted a letter to Congress going and asking to go and fix that definitional issue. So, yes, very important.

Rep. Thomas Tiffany (R-WI)SPEAKER_24

Mr. Tolman, how can we limit this data broker loophole without hurting intelligence?

Mr. Brett TolmanSPEAKER_05

The fact that it's so secret and it's contained exclusively within the those that present to the FISC those powers, and we're really talking about internal powers of the FBI. Without being able to shed light on what they're doing and who they're contracting with, it's very difficult to stop its use. And it will continue to be a challenge unless we are putting, for example, third parties capable of reviewing what they're searching and who they're contracting with. If we prevent and put guardrails on the scope of that contracting, we might be able to make an impact on its abuse.

Rep. Thomas Tiffany (R-WI)SPEAKER_24

Mr. Schaerr, we've seen some political judges across the country really abusing their authority. Are there guardrails against this with FISA?

Mr. Gene SchaerrSPEAKER_19

Well, the warrant requirement itself, I think, is going to help bring some accountability to the agencies. There's always a chance that a judge will grant a warrant that he or she shouldn't grant, and there's always a chance that a judge will deny a warrant that he or she shouldn't grant, but at least in the judiciary, there's an opportunity for appeal.

Rep. Thomas Tiffany (R-WI)SPEAKER_24

My concern is you see what Judge Boasberg has done, and he's served on the FISC. It's really of concern that he's going to abuse that authority.

Mr. Gene SchaerrSPEAKER_19

Well, and, and no solution is perfect, but the solu— but the, uh, the mechanism that the framers of the Constitution put in place, uh, to deal with these kinds of issues is, I think, uh, as as perfect and as good a system as we've seen. There will be lapses, there will be mistakes, but, uh, but there will be many fewer than we currently see, I think.

Rep. Thomas Tiffany (R-WI)SPEAKER_24

I think it was talked about earlier, but amicus briefs are allowed, correct, in the FISC?

Mr. Gene SchaerrSPEAKER_19

I suppose they are technically allowed, but since the FISC operates in secret, nobody knows what the FISC is considering, so nobody really know—unless they're told, nobody knows whether there's an opportunity to submit an amicus brief. So part of the amicus system is that the FISC itself would appoint an amicus and tell them, we have this proceeding dealing with this particular target, can you give us your thoughts on it?

Rep. Thomas Tiffany (R-WI)SPEAKER_24

So I'm going to take it that there is some limited ability. Should it be expanded?

Mr. Gene SchaerrSPEAKER_19

The amicus program, I believe, should be expanded. There are a lot of politically sensitive investigations that that currently are not subject to the amicus provisions at all. And there are several politically sensitive kinds of investigations where the FISC should be effectively required to appoint an amicus to give it independent advice when it's considering a Title I warrant.

Rep. Thomas Tiffany (R-WI)SPEAKER_24

And once again, with the amicus Uh, if that's allowed, what will that, what will that engender that will be helpful in this process in your mind?

Mr. Gene SchaerrSPEAKER_19

Well, two things. First of all, the amicus may actually find real problems with the government's case and be able to prevent an investigation or prevent surveillance that should not have gone forward. But at a minimum, the presence of an amicus is going to have a big deterrent effect on the FBI and the DOJ. In the Carter Page situation, for example, I'm convinced that if there had been an amicus in the room and in the proceeding, that Clinesmith would never have lied and that the other misdeeds that occurred in connection with Carter Page would likely not have occurred, because they would have been afraid that the amicus would recognize them and point them out to the court.

Mr. Brett TolmanSPEAKER_05

May I respond on that question, Mr. Chairman? One other thing that it would prevent is what happens currently, which is where there's a deficiency in a warrant, Title I warrant, the FISC judge will actually go back to DOJ and ask them to fix or provide additional information on a deficient warrant. An amicus system would prevent that.

Rep. Thomas Tiffany (R-WI)SPEAKER_24

Thank you for letting me exceed my time, Mr. Chairman.

Chairman Jim Jordan (R-OH)SPEAKER_15

You bet. The gentlelady from Pennsylvania is recognized.

Rep. Mary Gay Scanlon (D-PA)SPEAKER_23

Thank you. I want to thank the chairman for calling this hearing. FISA reform is a key area of bipartisan agreement in this committee, one where our shared interests in limited government and protecting civil rights and liberties overlap substantially. And the abuse of FISA by the FBI and the intelligence community is pretty well documented. Our witnesses have detailed some of those abuses and made some really good suggestions Suggestions for reform to address that abuse. One cause of the abuse of surveillance authority happens because there are few enforceable limits to collection of data and the use of that data. As long as we have to rely on the good faith of the FBI or the intelligence community, regardless of who's in charge, surveillance can be ripe for abuse. And when we don't put clear, enforceable limits in law, like a warrant requirement, it means that Americans' most essential rights and liberties are at risk, including the right to speak their minds, to be free from unreasonable search and seizure, and even their essential privacy rights. And the importance of protecting Americans' essential rights and privacies has never been more clear than in the past year, when we've seen the current administration, with respect to its allies at DOGE and the Department of Justice, mobilize the government to invade and collect Americans' private data, whether Social Security, tax, student loans, healthcare, voter registration, or SNAP data. And when you add that to the growing purchase of online and social media data by the government, we see that data being used in illegal law enforcement activities and even prosecutions of this administration's political enemies. So, one example is where we've seen the White House weaponize government surveillance and law enforcement to target political opposition and stifle political speech with the National Security Presidential Memorandum 7, or NSPM-7, which directs the intelligence community and law enforcement to target organizations and individuals on the basis of their political beliefs or political speech, actions that are unambiguously protected by the First Amendment. And on the basis of that memo, we've seen Attorney General Bondi direct the FBI to compile a list of groups allegedly engaged in domestic terrorism, using examples of protected political speech as key criteria for inclusion on the list. So if you strip away the pretext, then the purpose of these actions becomes clear: This administration is already using the federal government to target political opponents. So, given the known abuses of FISA by governments past and present and the willingness of this administration to run roughshod over existing guardrails, it seems pretty clear that we've got to act to limit those abuses, or else we're going to see FISA being used illegally to spy on Americans who don't align with this administration's agenda. Ms. Goitein, in your testimony, you raise the very good point, I think, that Americans should expect and be able to trust that Congress will protect their privacy and their freedoms. When Congress last considered FISA reauthorization last year, we were told repeatedly by the intelligence community that our Fourth Amendment concerns were best addressed by better stewardship of FISA authorities by the government. Do you think that that has played out in practice, given the known abuse of surveillance authorities that we've seen and the failure to collect and report accurate data about the use of those authorities?

Ms. Elizabeth GoiteinSPEAKER_01

Yeah I think one important point to bring up is that the failure to count these queries as queries and to follow the procedures required for U.S. person queries, like getting attorney approval or providing a written justification, those are themselves violations of the law that Congress passed last year. So while we don't know whether there were violations of the substantive standard for queries or how many violations there were, we know at least that there was a fairly systemic violation of several requirements of the law that have happened so far. In terms of whether the particular queries met the standards, I'll point out that the government credits some of these procedural requirements—attorney approval, written justification, audits—for improved compliance, and those were not happening with these particular queries. So I think it would be reasonable to expect that you would see a higher rate of noncompliance with these queries. I don't know if we'll ever know that for sure. So, no, I mean, I don't think the record has borne out this notion that internal oversight was the best way to go about protecting the Fourth Amendment, and you can tell that by looking at the Fourth Amendment, which does not talk about internal oversight. It does not say if the government has a reasonable basis to believe that its search will yield important information, it can either go to a court and get a warrant or just do the search, right? That's not what the Fourth Amendment says. So that's not the way to protect Fourth Amendment rights.

Rep. Mary Gay Scanlon (D-PA)SPEAKER_23

Sure. I mean, the Constitution famously said you have to get approval from a different branch of government in order to avoid the kind of self-dealing or, you know, pay no attention to that query behind the curtain kind of an approach to this. Um, can you just address again, um, how the warrant requirement protects people from potential targeting on the basis of their political beliefs?

Chairman Jim Jordan (R-OH)SPEAKER_15

Quickly.

Rep. Mary Gay Scanlon (D-PA)SPEAKER_23

I'm sorry, I did not realize my time had— has expired.

Chairman Jim Jordan (R-OH)SPEAKER_15

Okay, well, well, I'm gonna— the gentlelady yields back and we'll recognize the gentleman from Kentucky.

Rep. Thomas Massie (R-KY)SPEAKER_20

Thank you, Mr. Chairman. Thanks for having the hearing on this. I've been working on this for over a decade with my colleague Mrs. Zoe Lofgren, and I was ecstatic a decade ago when we got an amendment passed to require a warrant, but somehow that got stripped out. And it's kind of like Lucy and the football in Charlie Brown. We get so close, or we think we've won, and then it gets pulled away. And I'll talk a little bit about the elephant in the room. One of our colleagues here, who used to be for FISA reform, is now the Speaker of the House and cast the deciding vote against FISA reform last Congress. We don't want to talk about that too much, but I'm going to bring it up because when he was asked why did he change his position, he said he learned some stuff in a SCIF. Well, the SCIF is like the magic room where they go change your mind. The problem with his story is I spent three hours in the SCIF with him, and when we pressed the CIA director and the director of national intelligence and the head of the FBI—all of them were in the SCIF—give us one example where you couldn't have solved the crime or you couldn't have prevented some mass casualty event because of a warrant requirement. They could not give us a single example. The only person in that room who had a decent argument about anything was a FISA judge who said, You're going to need more SCIFs somewhere if we're going to review these—we're going to have to review warrants. And so it became a cost issue, but I thought that was kind of lame. It's going to cost some money to follow the Constitution. Okay, what's it going to cost? One of the things that Zoe Lofgren reminded me of is there's all these sort of loopholes where we're afraid if we do get our FISA reform, the intelligence agencies are going to use these loopholes to spy on Americans. And the one I want to ask you all about today—well, there's actually three of them, but one of them is Executive Order 12333. And I see Ms. Goitein shaking her head, so I'll ask her, should we be concerned about 12333, and what could we do about that executive order?

Ms. Elizabeth GoiteinSPEAKER_01

Yeah, absolutely. Yeah. So let me explain a little bit. As a general matter, FISA applies when the government is collecting information inside the United States or from U.S. companies. If the government is collecting information overseas, it usually is relying on a claim of inherent authority as governed by Executive Order 12333 and various other executive policies. And this is a critical distinction because there are almost no legislative protections or guardrails for Executive Order 12333, and there is no judicial oversight. Now, this distinction between collecting here and collecting there might have made sense in 1978 because collection inside the U.S. usually meant collecting on Americans and collecting overseas usually meant collecting on foreigners overseas. As we all know, with the changes in technology, that has completely changed. Communications, other sensitive information is routed and stored all over the world. And in fact, the fact that foreigners' communications were being stored by U.S. service providers in this country, and therefore the government would have needed to get a warrant for those before 702, is one of the reasons the government pushed to modernize FISA with 702. They just didn't address the other half of the problem, which is that Americans' communications are routed and stored overseas in ways that can, in some circumstances, remove them from the protections of FISA. For example, when the government collects collects information in bulk overseas, and it's inevitably pulling in Americans' communications. So Americans' communications are acquired incidentally. They are acquired as part of bulk collection under EO 12333, and the only safeguards in place are those that the executive branch has chosen to put in place. It will not shock you that those rules and procedures are much more lax.

Rep. Thomas Massie (R-KY)SPEAKER_20

This isn't the answer I wanted. I wanted you to tell me we shouldn't be concerned about Executive Order 12333.

Ms. Elizabeth GoiteinSPEAKER_01

Sorry, you called on the wrong witness.

Rep. Thomas Massie (R-KY)SPEAKER_20

Another loophole that we've identified in the Weaponization Committee was the Financial Privacy Act of 1978, which is one of those bills that did the opposite of what the name of it was. It created a loophole that allows the government to get bank records without any warrants or anything. Is anybody familiar with this?

Mr. Brett TolmanSPEAKER_05

Yeah Yes, I am. And I would say the overarching concern I have is you have 1978, you have 1981 on 12333. We didn't have the ability to collect the data that we do today, nor the access to it. It was a very different government that we were talking about back then when those executive orders came out.

Rep. Thomas Massie (R-KY)SPEAKER_20

So that may need updated as well. You think?

Mr. Brett TolmanSPEAKER_05

Absolutely it does,

Rep. Thomas Massie (R-KY)SPEAKER_20

because we identified where they've been using it recently. And a lot of this stuff actually comes through whistleblowers. Just in closing, I'm disappointed that our committee didn't find the Arctic Frost, the spying on the senators. And it wasn't a we're responsible for oversight. We couldn't even find them spying on us. It was a whistleblower. And so I think we need to tighten up our oversight over these committees. With that,

Chairman Jim Jordan (R-OH)SPEAKER_15

well, we did, we did find that they were spying on the Speaker of the House and members of this— well, at least one member we know of this committee.

Rep. Thomas Massie (R-KY)SPEAKER_20

And just one more thing before we close. I, I know we got some— I would prefer to fix the law for everybody, not for members of Congress.

Chairman Jim Jordan (R-OH)SPEAKER_15

I totally agree.

Rep. Thomas Massie (R-KY)SPEAKER_20

But one of our colleagues was very vocal about making sure it was fixed for members of Congress. But the fix was to report the spying to the Speaker of the House and maybe a couple of chairmen of committees. Why not report it to the person that was spied on, the member of Congress? That's my concern. I yield back.

Chairman Jim Jordan (R-OH)SPEAKER_15

That's why we did the Nondisclosure Order, NDO Fairness Act that we passed out of this committee to help with that in that regard. The gentleman from Colorado is recognized.

Rep. Joe Neguse (D-CO)SPEAKER_22

Thank you, Mr. Chairman. I see my colleague, Mr. Massie. I don't know if you wanted to finish that thought, Mr. Massie. I'm happy to yield a moment.

Rep. Thomas Massie (R-KY)SPEAKER_20

They gave— he gave me an extra minute.

Rep. Joe Neguse (D-CO)SPEAKER_22

Okay. All right,

Rep. Thomas Massie (R-KY)SPEAKER_20

uh,

Rep. Joe Neguse (D-CO)SPEAKER_22

Well, thank you, Chairman, for holding this hearing, and certainly thank you to all the witnesses. I share the concerns of my colleagues on both sides of the aisle with respect to FISA abuses in the past and the necessity for reforms. Mr. Schaerr, I want to ask you a couple of questions. So you've testified today about your representation of Mr. Carter Page, former Trump campaign advisor, in his ongoing lawsuit against the United States based on the 2019 finding by the Department of Justice that the FBI had used invalid warrants to monitor Mr.— Dr. Page under Section 702. So in 2020, 5 years ago, the special counsel, the Department of Justice, John Durham, secured a guilty plea from an FBI attorney who doctored an email that was used in that warrant application. Is that a fair characterization of the events so far?

Mr. Gene SchaerrSPEAKER_19

I think he actually went to trial. You're talking about Kevin Clinesmith, correct? Yeah, I

Rep. Joe Neguse (D-CO)SPEAKER_22

went to trial. Got it. So, and ultimately was convicted.

Mr. Gene SchaerrSPEAKER_19

He, he was convicted but didn't get any jail time.

Rep. Joe Neguse (D-CO)SPEAKER_22

Correct. So my understanding is that to address, at least in part, some of these 702 abuses, Attorney General Bill Barr in 2020 directed the creation of an Office of Internal Auditing. You're familiar with that?

Mr. Gene SchaerrSPEAKER_19

Yes.

Rep. Joe Neguse (D-CO)SPEAKER_22

All right. And that Office of Internal Auditing, this was created by President Trump's former attorney general in the first term, was designed to scrutinize the 702 process to prevent these kinds of abuses from happening in the future.

Mr. Gene SchaerrSPEAKER_19

I think it was designed to scrutinize Title I processes, the other provision of FISA. Correct. Yeah.

Rep. Joe Neguse (D-CO)SPEAKER_22

I assume that you agree that that's a worthy goal.

Mr. Gene SchaerrSPEAKER_19

Certainly a worthy goal, and, and one that would be advanced even further by, by adopting the amicus, uh, mechanisms that we've, we've discussed here and that passed the Senate with 77 votes a couple of years ago.

Rep. Joe Neguse (D-CO)SPEAKER_22

And I also assume you're aware that the Office of Internal Auditing no longer exists.

Mr. Gene SchaerrSPEAKER_19

I wasn't aware of that.

Rep. Joe Neguse (D-CO)SPEAKER_22

Yeah. So the director of the FBI, Kash Patel, earlier this year eliminated the Office of Internal Auditing at the FBI. This was an office that the Republican Attorney General Bill Barr created 5 years ago in response to the work done by Chairman Jordan and Republicans and Democrats on this committee. Doesn't seem like that accomplishes a whole lot. I have yet to understand the rationale as to why the FBI director, who, by the way, at least prior to his appointment as FBI director, had expressed all kinds of misgivings about 702 and FISA and the like, has now decided to eliminate the Office of Internal Auditing at the FBI. I wonder why that is. I don't know if you care to perhaps make an educated guess.

Mr. Gene SchaerrSPEAKER_19

Well, I think, I think that's all the more reason why Congress needs to act. Congress, Congress is the representative of the people, needs to be the entity that's protecting the rights of Americans.

Rep. Joe Neguse (D-CO)SPEAKER_22

Yeah, I don't disagree with you. Clearly, there's an impetus for Congress to do something, and I think that that's the, obviously the rationale for this particular hearing. But it would be nice to perhaps hear from our chairman and my colleagues on the other side of the aisle, who I know have direct relationships with the Attorney General of the United States and the Director of the FBI, it'd be nice to hear them defend the Office of Internal Auditing that that I presume they supported a mere five years ago. Doesn't really quite make much sense to me why that would be eliminated. I know I'm getting near the end of my time. As I said, I think that there is a a bipartisan consensus in the Congress that's emerging that this is an area ripe for reform. Again, it's something I'm supportive of, and I look forward to working with my colleagues on both sides of the aisle to try to make some progress in that regard. And I will yield back the balance of my time. Yields back. The gentleman from Texas is recognized.

Rep. Chip Roy (R-TX)SPEAKER_30

I thank the chairman. I thank the witnesses. Appreciate y'all being here. Um, let me just ask this question among the four of you, and I think I know the answer. And I'll start with you, Mr. Tolman, and I'll move across the panel. Is there any legitimate reason

Rep. Chip Roy (R-TX)SPEAKER_30

why we should not have the warrant protection included in a reform to FISA? Mr.

Mr. Brett TolmanSPEAKER_05

Tolman No, and in fact, the reasons stated are illegitimate. You take the argument that the FBI can do it themselves, that I've never believed in the fox being able to analyze and control what the fox does in the henhouse.

Mr. Gene SchaerrSPEAKER_19

Sure. Absolutely. There's no reason not to, not to include it. It should be included.

Mr. James CzerniawskiSPEAKER_26

I think that it is a must-have thing if we're going to go and reauthorize FISA.

Rep. Chip Roy (R-TX)SPEAKER_30

Ms. Goitein?

Ms. Elizabeth GoiteinSPEAKER_01

No reason not to include it.

Rep. Chip Roy (R-TX)SPEAKER_30

Okay. And with all due respect to, I think we had one of our colleagues on the other side of the aisle who was expressing some concerns about not having somebody from the intel community here. The intel community is the one are the ones running the show, including, by the way, with all due respect, a lot of our colleagues on the Intel Committee here who are a part of the show. And Judiciary exists to focus on the Constitution and the rights of citizens to not have this occur. And that's why the chairman is absolutely correct to have this witness panel. And I would just note that all four witnesses, including the Democrat witness, just said there is no legitimate basis for us not to include a warrant protection requirement in FISA reform. And I want that to ring through the halls of Congress between now and April, so that when we are forced with the vote that is inevitably going to occur on this issue, that we not have what happened almost 2 years ago, where we left the American people without the protection the Constitution affords them from a tool that is being used on a bipartisan basis to target the American people and collect their data, which is offensive, and it is wrong. And there cannot be this cloak of secrecy surrounding intel. And to that point, I wonder if, Ms. Goitein, you might be able to help me out here a little bit. I offered a couple of amendments to FISA last time, and one of which was to demand that we get all of the reports of the queries. And in that amendment, we, and I think we settled on quarterly. I wanted it to be monthly or whatever regular reporting. And we gave them a year at their wailing and gnashing of teeth that they wouldn't be able to get this done and figured out within a year, okay? So that year expired last, I'll call it spring. Well, do you know and are you aware, have we gotten any kind of data and reporting information out of the system one efforts so that we can look and look at the data specifically with respect to these queries? Can you illuminate us?

Ms. Elizabeth GoiteinSPEAKER_01

I actually don't know the answer to that question in terms of what you have received from the FBI. It looks like Congresswoman Ross might— Okay. Yeah, I'm not sure. If you're not getting the data that you're supposed to be getting under the law, needless to say, that's a very serious problem.

Rep. Chip Roy (R-TX)SPEAKER_30

Well, what we're advised of is that the System 1 is not even really recording these queries and set up in a way

Ms. Elizabeth GoiteinSPEAKER_01

Yeah, I didn't—sorry, the System 1, exactly. I mean, that data. So what happened was that in, I think it was March of 2025, the National Security Division told the FISA Court that it was currently cooperate, or coordinating with the FBI to determine whether any records of this functionality had been generated. So, I think absolutely this committee should be following up on that to determine whether any such records were located, if not, whether they can be forensically reconstructed. That is information you should have.

Rep. Chip Roy (R-TX)SPEAKER_30

And then I have a limited amount of time. I just want to stipulate for this committee that we need to see that data. We need to see the results of the queries. We need to be able to identify that information, and I want to see more changes in FISA to force more information and compel our ability to see it. And I would note also that we included provisions in there for the chair and ranking member of Judiciary, as well as leadership, to be able to go into FISC proceedings. And that has been allowed pursuant to the law, comma. However, the FBI has then stipulated at times that individuals would have to be removed and that they would need to leave for certain sensitive conversations, which, by the way, the statute never contemplated. And what we passed did not contemplate that members of Congress who have full clearance, that in the statute they are supposed to be able to go in there in these FISC proceedings and monitor them. The FBI has no basis, whether that was the FBI under the Biden administration or the FBI under the Trump administration, to then say it's too sensitive, members of Congress need to leave these proceedings. So whatever we do in both carrying out our oversight function of the of the executive branch or whatever we do in FISA reauthorization, unless we let it expire, per Mr. Tolman, I think, wise advice, that we need to make sure that if we're putting members of Congress in there to oversee this stuff, the FBI doesn't walk in and say, Sorry, you've seen enough. You can't see the rest of this. That is just facially absurd. I yield back to the chairman.

Chairman Jim Jordan (R-OH)SPEAKER_15

Gentleman yields back. The gentlelady from North Carolina is recognized.

Rep. Deborah Ross (D-NC)SPEAKER_32

Thank you, Mr. Chairman and, and the ranking member for holding this really important hearing. I'm so glad that we continue to have bipartisan support, particularly for the warrant requirement. And thank you very much for, for the amicus requirement, which is something that I've worked on in the past. But as we're weighing this reauthorization of FISA, and until we can get some of these safeguards that we want, it's very important that we use the previously created internal safety checks and guardrails, and I am concerned that this administration has weakened them. So maybe this responds to Mr. Roy's initial point, but there was a requirement that the Office of Inspector General review the querying practices, and they did file a report this past October which found that the FBI has made progress in reducing the number of noncompliant hearings, though not enough, we agree. But the Inspector General was not able to conclude, based on their limited time, that the querying compliance are entire— the problems are entirely in the past. So this really shows that we need to continue to have this oversight with the tools that we have until we can get stronger protections for the American public. So, Ms. Goitein, the Privacy and Civil Liberties Oversight Board serves an important oversight role, especially regarding FISA. The board has published numerous reports and recommendations about the different surveillance programs and released a report in September of 2023 about Section 702 that contained multiple recommendations to protect the rights of Americans. But in January, almost immediately after he was sworn in as president, Trump fired the Democratic board members, and the board now has one part-time member and lacks a quorum to begin new investigations or issue reports signed by the board. Could you tell us why ensuring the independence of this board is so important and why it's important for it to have a quorum?

Ms. Elizabeth GoiteinSPEAKER_01

The Privacy and Civil Liberties Oversight Board is the only independent agency within the government that is charged with ensuring the protection of Americans' civil liberties. It's a small board with a fairly small staff and a huge and absolutely vital remit. If you don't have the Privacy and Civil Liberties Oversight Board doing its job, then all of the oversight that's coming from the executive branch will effectively be internal oversight that's sort of happening within these agencies. PCLOB, as we call it, has been vital in bringing to light, first of all, how the Section 702 program worked. If it weren't for the PCLOB's 2014 report, most of what we're saying today about how 702 works, we wouldn't be able to say. But PCLOB managed to get that information declassified and put it out to the American people. Because of the PCLOB's work, we found out in 2023 that the claim that warrantless backdoor searches were important for national security, the claim we had heard from the government, was not true. That the government had only been able to identify a handful of instances where these U.S. person queries had been useful, and in pretty much every case, they could have either gotten a warrant, consent, or invoked the exigent circumstances exception. It is because of the PCLOB that you had the tools that you needed last year to enact RISAA, and that you will have the tools that you need now in reauthorizing Section 702 this year. Now, if people on the PCLOB can simply be removed at will, that will chill— first of all, there's no quorum, right? So there's no PCLOB right now, essentially. That's a problem. But unless Congress— it's not enough to just appoint people to PCLOB. The independence of PCLOB must be protected, because if members know that they can be removed if the president doesn't like the investigation that they are conducting or the results that they came up with, then that is going to chill their oversight, and we need them to be a robust oversight body. There was a provision in the PCLOB authorizing statute saying they could be removed at will. Congress removed that, so it seems clear that they can't be removed at will. And in fact, there are lawsuits right now challenging their removal, but Congress should make that explicit. And Congress should make very clear that members of PCLOB can only be removed for cause.

Rep. Deborah Ross (D-NC)SPEAKER_32

Well, it's my great hope that at least in this area we use our power and we have a check on the administration. And with that, I yield back.

Chairman Jim Jordan (R-OH)SPEAKER_15

Generally yields back. Gentleman from Virginia is recognized.

Rep. Ben Cline (R-VA)SPEAKER_13

I thank the chairman. I thank the committee for all their work on this important issue. The Constitution is under the jurisdiction of this committee, and the Fourth Amendment is pretty clear: The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. No asterisk, no footnote that says but except for this case or in cases of

Rep. Ben Cline (R-VA)SPEAKER_13

national security or otherwise. Let me just ask our, our Ms. Goitein, under 702, the government is prohibited from engaging in reverse targeting. Can you describe what reverse targeting is and why it's problematic?

Ms. Elizabeth GoiteinSPEAKER_01

Reverse targeting is when the government claims to be interested in the foreigner overseas, but in fact, the reason the government is collecting those communications is because they are interested in the communications of an American who may be communicating with a foreign target.

Rep. Ben Cline (R-VA)SPEAKER_13

What penalties, if any, does Section 702 levy against government actors that engage in reverse targeting or otherwise abuse the FISA framework?

Ms. Elizabeth GoiteinSPEAKER_01

Well, right now there are internal accountability procedures that have been adopted by the FBI. I don't think that they are public. They were required by RISAA. I don't think that they have been made public, and there's no public information. I'm not aware of anyone having been disciplined for—

Rep. Ben Cline (R-VA)SPEAKER_13

do we have an estimate of the volume of Americans' communications that have been collected as part of Section 702 surveillance?

Ms. Elizabeth GoiteinSPEAKER_01

Um, the government has refused to provide that estimate. Members of Congress have been asking for it since 2011.

Rep. Ben Cline (R-VA)SPEAKER_13

And has the FBI ever estimated the volume?

Ms. Elizabeth GoiteinSPEAKER_01

Uh,

Rep. Ben Cline (R-VA)SPEAKER_13

to your knowledge?

Ms. Elizabeth GoiteinSPEAKER_01

Not to my knowledge. I, I'm not sure that they are particularly interested in, in—

Rep. Ben Cline (R-VA)SPEAKER_13

now,

Ms. Elizabeth GoiteinSPEAKER_01

that number,

Rep. Ben Cline (R-VA)SPEAKER_13

As you've discussed, according to the ODNI report, queries by FBI were up to 2.9 million in 2021—2.9 million—declining to 119,000 in 2022, 57,000 in 2023, between April 2024 and April 2025 down to 9,000. Can you estimate as to why there were such a large number of queries in 2021 and why that number has come down dramatically in recent years?

Ms. Elizabeth GoiteinSPEAKER_01

Yeah, um what we've been told by the FBI is that there were a lot of batch queries, or perhaps even just one particularly large batch query. That's when a bunch of a large number of individuals are sort of queried at the same time under the same rationale relating to a potential cybersecurity threat. It's still hard to quite figure out the math and how they got to 2.9 million with that. The argument for why the queries have come down is because there has been an effort to put more oversight in place, and I think that that is, and there's been a lot more attention,

Rep. Ben Cline (R-VA)SPEAKER_13

more sunlight.

Ms. Elizabeth GoiteinSPEAKER_01

Exactly. There's been a lot more attention paid, and, and certainly the reauthorization was coming up, and so we, we saw a decrease. But I would just want to remind you that that last number, 9,000, that's the number of known and counted queries. We don't know the actual total number.

Rep. Ben Cline (R-VA)SPEAKER_13

All right, let me go to Mr. Schaerr and talk about RISAA. When we passed RISAA, what would you say were the most important reforms that RISAA implemented?

Mr. Gene SchaerrSPEAKER_19

Certainly one of the most important, I think, was the provision allowing the chairs of relevant committees in this body and in the Senate to be present in FISC proceedings and to be able to understand what's happening in that body. I don't know how you provide oversight to an institution like that unless you could at least attend its proceedings once in a while.

Rep. Ben Cline (R-VA)SPEAKER_13

We're all, um, cleared, so would it be problematic to say, or the designee of the chairman on the committee?

Mr. Gene SchaerrSPEAKER_19

That, that would be a wonderful addition.

Rep. Ben Cline (R-VA)SPEAKER_13

Help us spread the burden, wouldn't you say?

Mr. Gene SchaerrSPEAKER_19

Yes.

Rep. Ben Cline (R-VA)SPEAKER_13

All

Mr. Gene SchaerrSPEAKER_19

right. And the accountability.

Rep. Ben Cline (R-VA)SPEAKER_13

It's a small room, but I think there are many of us on this committee who would be willing to go down there and spend time in there. Um, and, and let me just say, uh, as reporting requirement of RISAA, the DOJ OIG released the report which found that the reforms implemented have, quote, "significantly reduced the number of non-compliant queries identified," end quote. Now, what further reforms to reduce this number of non-compliant queries down to zero—is a warrant requirement necessary?

Mr. Gene SchaerrSPEAKER_19

I think so. And, and even, even with a warrant, there will, there will still be some mistakes made, made by the courts. But the number is going to, the number is going to go down very substantially if you have an independent judge looking at these requests.

Rep. Ben Cline (R-VA)SPEAKER_13

Thank you. Yield back.

Chairman Jim Jordan (R-OH)SPEAKER_15

gentleman yields back. I, I, I believe the law says we can designate a staff person to go. Yeah, but I know we should, we should frankly work on making sure it can be a member. And Mr. Cline would be great because he sits on this committee and also the Intel Committee, and that would be, I think, ideal. If I could real quick before I recognize the gentlelady from Vermont, what do we think the number is? It's not 9,000, and we think they got this other route that they're taking. What do we think the number is? Anyone hazard a guess?

Mr. Brett TolmanSPEAKER_05

I think the number is very close to what it has been historically. I think they eliminated the girlfriend searches and things like that, but they— I believe it's a product of identification. So, and, and

Chairman Jim Jordan (R-OH)SPEAKER_15

still way high.

Mr. Brett TolmanSPEAKER_05

I think it's way, way up there, and they've changed the way that—

Chairman Jim Jordan (R-OH)SPEAKER_15

because the impression is given is it was 200 and some thousand or 100. I get there's some hundreds of thousands, and now they're like, they're pounding their chest like, oh, we got it down to 9,000. I mean, 9,000 is still a concern, but we think it's, we think it's much higher. Is that fair to say?

Mr. Gene SchaerrSPEAKER_19

Probably,

Mr. James CzerniawskiSPEAKER_26

yes.

Chairman Jim Jordan (R-OH)SPEAKER_15

And is Mr. Tolman right that it's probably where it was?

Mr. James CzerniawskiSPEAKER_26

Yes.

Ms. Elizabeth GoiteinSPEAKER_01

I would hesitate to say simply because if it turns out that that's not the case, it doesn't change my opinion in terms of whether or not we should have a warrant. And so I don't want to set some bar that if they go below it, suddenly everything's okay. But I do want to mention that this system, System 1, or the advanced filter function, that is one instance we know where the FBI basically decided that something wasn't a query and that it was instead, I guess, a filter. Yeah I think an important question for you all to ask is whether there are other such ways that they're obtaining U.S. person information that they consider to be a filter or a sorting rather than a query, because if that were true, the number could be even higher.

Chairman Jim Jordan (R-OH)SPEAKER_15

Yeah, I apologize.

Mr. Brett TolmanSPEAKER_05

Mr. Chairman, when the FBI was being criticized that violent crime was on the rise,

Mr. Brett TolmanSPEAKER_05

they changed the way they collected violent crime data.

Chairman Jim Jordan (R-OH)SPEAKER_15

Fair point. Very fair point. Good point. I'm sorry. And I recognize the gentlelady from Vermont.

Rep. Becca Balint (D-VT)SPEAKER_02

Thank you, Mr. Chair, and thank you to all the witnesses for your time. Ms. Goitein, thank you so much for being here. I want to break this down in simple terms for the millions and millions of Americans who have never heard of FISA, who have no idea when we talk about the Foreign Intelligence Surveillance Act what we're talking about. So if you'll indulge me, I'd like to walk through it piece by piece. When we talk about communications data, we're talking about texts, we're talking about emails, phone numbers, DMs, that kind of thing. Is that right?

Ms. Elizabeth GoiteinSPEAKER_01

sort of any—it's actually any information that can be acquired under Section 702, any foreign intelligence information of any kind. So it could include other types of data. I think the focus tends to be on communications because communications are some of the most private sort of information that we have and exchange.

Rep. Becca Balint (D-VT)SPEAKER_02

And Section 702 allows the government to take huge sets of data from companies like Verizon or T-Mobile as part of its stated mission of trying to track down terrorists and other security threats. Is

Ms. Elizabeth GoiteinSPEAKER_01

No, that's actually—there's sort of two separate issues there. One is sort of this data broker loophole by which the government buys data under no statutory authority whatsoever, right? So that's not under FISA, it's not under Section 702. It's just they do it because they think they can, because they've decided they can. And so, and that's trying to change, right?

Rep. Becca Balint (D-VT)SPEAKER_02

I think that's a really important distinction.

Ms. Elizabeth GoiteinSPEAKER_01

Yes. Yes. In 702, there is a target and they are collecting information of or concerning that target. And so they're collecting the target's communications, data on the target. The issue, of course, is that the foreign target doesn't have to be suspected of any wrongdoing, and all of that foreign target's communications with Americans would be swept up as well.

Rep. Becca Balint (D-VT)SPEAKER_02

And so that data may also include Americans' personal private information, right?

Ms. Elizabeth GoiteinSPEAKER_01

There is a large amount, and the PCLOB used that word. We don't have an estimate. The government refuses to give us one. There is a large amount of Americans' personal data, information, communications,

Rep. Becca Balint (D-VT)SPEAKER_02

And I know this is something that Vermonters care deeply about, is who's protecting their personal, private information. I'm sure that's true for many of us on this committee. So, okay, now, here's the rub, right? So essentially, there is this huge secret database containing all kinds of information on Americans and non-Americans, as you said. And the government says it can search that database without a warrant. That's what they're claiming. Is that right? Yes. Okay, so let's say my emails were caught up in one of these data sets, landed in the database. Could the FBI search the database for Becca Balint and access those emails without a warrant? Yes. And this is what we've been referring to today as a kind of a backdoor search. Exactly. Is that correct? So has Section 702 ever been used to spy on a member of Congress? In other words, has the government used a backdoor search to find data on elected officials?

Ms. Elizabeth GoiteinSPEAKER_01

The government has run backdoor searches on members of Congress. We don't know whether any data was returned, whether they used that data, but they have attempted to find and use data of Members of Congress.

Rep. Becca Balint (D-VT)SPEAKER_02

So obviously deeply concerning, these backdoor searches, deeply concerning. Who is vulnerable? You know, are regular people vulnerable? This is the thing that I want Americans outside of this committee, outside of Congress to understand. Is anyone vulnerable to this?

Ms. Elizabeth GoiteinSPEAKER_01

If you communicate with foreigners overseas, you are vulnerable.

Rep. Becca Balint (D-VT)SPEAKER_02

If you communicate with foreigners overseas, you are vulnerable to this backdoor search.

Ms. Elizabeth GoiteinSPEAKER_01

Yes. The government has to have a foreign intelligence purpose for the Section 702 program, but foreign intelligence is defined so broadly,

Rep. Becca Balint (D-VT)SPEAKER_02

Yes.

Ms. Elizabeth GoiteinSPEAKER_01

That it can include information that simply relates to the US conduct of foreign affairs.

Rep. Becca Balint (D-VT)SPEAKER_02

So essentially, any person with an email account or a cell phone could potentially be a target of government surveillance by our government, and there's no requirement that the government get an actual warrant to spy on our personal communications. Is that, is that what we're trying to get at here?

Ms. Elizabeth GoiteinSPEAKER_01

Yeah. So the government would say that you're not a target because the target was a foreigner overseas. But of course, if they are then looking for and using your information, that kind of feels like targeting to me. So it becomes a bit of a semantic sleight of hand.

Rep. Becca Balint (D-VT)SPEAKER_02

I agree. And what would happen if we just let Section 702 expire?

Ms. Elizabeth GoiteinSPEAKER_01

I'd be concerned about that for a couple of reasons. I'd be concerned, first of all, that the govern- the government would go ahead and obtain the same information in other ways that actually come with less oversight, whether it's, you know, buying up data from data brokers, whether it's other forms of surveillance under Executive Order 12333, and there are even fewer protections for Americans' privacy and civil liberties in those contexts than than under Section 702. Also, I would point out that the government actually has made a a case that Section 702 is valuable for national security insofar as it permits the collection of foreigners' communications. And so, the the foreigners' communications that have been obtained have been shown to have national security value. What the government hasn't shown is evidence that warrantless searches for Americans' communications have has had any significant national security value.

Rep. Becca Balint (D-VT)SPEAKER_02

I appreciate it. I see that my time has expired. I just want to say, you know, one of the things that I try to do in this committee is really try to break down for people outside of these halls, these powerful halls of Congress, to explain why it is that we do the work that we do. Again, I appreciate all of your time, and I yield back.

Chairman Jim Jordan (R-OH)SPEAKER_15

The gentlelady yields back. And you did break it down. Everyone is in there. They can't police themselves. So much so that they actually searched members of Congress, the individuals in the body responsible for setting their budget. If that's not a problem, I don't know what is. The gentleman from Alabama is recognized.

Rep. Barry Moore (R-AL)SPEAKER_18

Thank you, Mr. Chairman. Mr. Schaerr, what is the purpose of Woods procedures?

Mr. Gene SchaerrSPEAKER_19

As I understand it, the Woods procedures are just—they're an internal mechanism in the Justice Department and the FBI to try to be sure that there's adequate vetting before a warrant application is filed in the in the FISA Court.

Rep. Barry Moore (R-AL)SPEAKER_18

Which procedures should be codified given that the FBI is failing to follow their own procedures?

Mr. Gene SchaerrSPEAKER_19

I'm, I'm not sure codifying them would be, would be that useful. I think much more useful would be to adopt the kind of amicus participation position, uh, mechanism that we've discussed earlier.

Rep. Barry Moore (R-AL)SPEAKER_18

So, what other kind of procedures are in place to protect against malign use of the FISA? What would you recommend? You mentioned the amicus, but are there other procedures in place that should be protecting the American citizens?

Mr. Gene SchaerrSPEAKER_19

With respect to the Title I process, I think the amicus provision that we've discussed is the most useful. If we look at FISA more broadly and include Section 702, then I think the other three reforms that we've discussed here today would be would be extremely important. A general warrant requirement before before the FBI can search the communications of Americans, for one thing; tightening up the the electronic communication service provider definition that was unfortunately broadened in the last version of the of the reauthorization, tightening that up so that it excludes really so that it excludes any entities other than data centers, which apparently is what the the FBI was trying to ensure that they could they could get at there. There's just no reason to to basically dragoon churches and small businesses into conducting surveillance on behalf of the NSA and the FBI. And then closing the data broker loophole so that so that if the government wants to buy data from data brokers that contains lots of personal data about individuals, before they can search that data, they have to get a warrant to do that, just like we're proposing that they have to get a get a warrant in order to search the 702 database.

Rep. Barry Moore (R-AL)SPEAKER_18

I'm going to change gears on you a minute, Mr. Schaerr. You represented Carter Page in his lawsuits against the FBI, correct? Correct. During Crossfire Hurricane investigation, Mr. Page actually reached out to the FBI and offered to be interviewed, is that correct?

Mr. Gene SchaerrSPEAKER_19

And offered to help them.

Rep. Barry Moore (R-AL)SPEAKER_18

Uh, why did why did he reach out to the FBI, I guess would be the first question?

Mr. Gene SchaerrSPEAKER_19

Well, he was already helping the CIA with concerns that they had about things going on in Russia, and when he learned that there was some FBI interest, I think he felt like maybe I can be helpful to the FBI as well.

Rep. Barry Moore (R-AL)SPEAKER_18

Why do you think they turned down the opportunity to interview Mr. Page?

Mr. Gene SchaerrSPEAKER_19

Well, I think the independent investigation of that, of that investigation showed that the FBI was, or elements in the Justice Department were, were trying to investigate the incoming administration, and they were trying to create the appearance of a tie between the incoming administration and Russia. And Carter Page was the one staffer who had some well-established contacts in Russia, and so they chose to focus on him.

Rep. Barry Moore (R-AL)SPEAKER_18

Was that part of the reason they went after General Flynn too, you think? The whole Russian collusion narrative was part of that, or was that a separate investigation?

Mr. Gene SchaerrSPEAKER_19

I think it was closely related.

Rep. Barry Moore (R-AL)SPEAKER_18

Thank you. Thank you. Um, Mr. Holman— I mean Mr. Tolman, I'm going to hit real quick with you. What type of information do law enforcement agencies—what are they purchasing from data brokers, and what are they using it for?

Mr. Brett TolmanSPEAKER_05

Well, as, as you know, there's so much data that is collected that from outside the government that, uh, there's really no limit to what they can purchase that can be obtained through online use, through emails, through, through other data points, financial institutions. They're really— if, if you think about it, it could be in its, in its worst form the ability to collect everything that they can't collect under a warrant, without a warrant.

Rep. Barry Moore (R-AL)SPEAKER_18

Very dangerous, I would assume, correct, for personal privacy and certainly for our amendments to protect those privacies. In 2023, the FBI admitted to buying precise geolocation data derived from mobile phone advertising. What should Congress do about this?

Mr. Brett TolmanSPEAKER_05

I became aware of individuals, for example, that traveled to Washington, D.C., were not traveling on January 6th to the rally, were not entering the the Capitol. They simply were traveling. All of their location was obtained. No warrant. So Congress has to recognize that any thought that internal regulation is going to control the use of power by the FBI is going to fail.

Rep. Barry Moore (R-AL)SPEAKER_18

Does that get back to the fox guarding the henhouse? That's correct. Earlier. Thank you, Mr. Chairman. I'm running out of time, so I'll yield back. Thank you. Thank

Chairman Jim Jordan (R-OH)SPEAKER_15

Not only their location, they got their bank records, they got what they bought, they overlaid that if they if they banked at the Bank of America, they overlaid that if they ever purchased a firearm. So, well well said. Gentleman from Illinois is recognized.

Rep. Chuy Garcia (D-IL)SPEAKER_06

Thank you, Chairman Jordan. This hearing

Chairman Jim Jordan (R-OH)SPEAKER_15

Oh, wait, could the gentleman hold for just one second? I apologize. You guys have been gone 2 and a half hours. If any of you need a break, make sure you— we'll give you a break and we'll keep rolling.

Chairman Jim Jordan (R-OH)SPEAKER_15

I just saw that because I just took a break. So, but the gentleman's recognized. You get your full time.

Rep. Chuy Garcia (D-IL)SPEAKER_06

Thank you, Chairman Jordan. This hearing, of course, marks the start of negotiations over the reauthorization of FISA Section 702 at a time when our civil liberties are under assault and the public lacks trust in government, the stakes could not be higher. As my colleagues and witnesses have pointed out, Section 702 has been repeatedly abused under both Republican and Democratic administrations. It's become a tool of mass domestic surveillance and an end run around the Fourth Amendment as well. It should be clear by now that we cannot trust the executive branch to regulate itself. This is a crucial moment for Congress to assert itself and its constitutional authority to protect our constituents from warrantless spying. It is not clear to me that Section 702 can ever be reformed to the point where it doesn't threaten our constitutional rights. But if Congress is going to reauthorize it, then we must insist on major changes. That means requiring a warrant for U.S. person searches, closing the data broker loophole, reforming the FISA Court, and narrowing the ECSP definition, and requiring more transparency and oversight. It also means getting rid of the immigrant vetting provision that was included in RISAA. This overbroad law requires Section 702 querying procedures to, quote, "enable the vetting of all non-U.S. citizen persons who are being processed for travel to the United States," end of quote. This is a major separation—expansion, rather, of government surveillance powers. Instead of targeted surveillance aimed at specific national security risks, the intelligence agencies will now surveil over 10 million people, non-U.S. citizens entering the country each year without suspicion. This will also affect the privacy of Americans, whose communications will be accessed at much higher rates and subject to further abuse by agencies that have shown complete disregard for our civil liberties. It's not just progressive Democrats who oppose this provision. Chairman Jordan opposed it and spoke against it on the House floor, highlighting that it would, quote, "authorize the surveillance of a whole new category of individuals," end quote. Ultimately, 80 Republicans voted against it. Ms. Goitein, thank you for being here today. Can you speak to the potential harms of the immigrant vetting provision and the significance of the bipartisan opposition to it?

Ms. Elizabeth GoiteinSPEAKER_01

Sure. So ordinarily, in order to conduct a query, the rules for the agencies require them to have to reasonably believe that the query will yield foreign intelligence. That's a very low bar, given how broad the definition of foreign intelligence is. And yet, despite how low the bar is, unfortunately, a provision that was adopted last year in RISAA—and again, as you mentioned, the chairman opposed it, most people in this room I think opposed it, but it was it was still adopted—that allows and in some ways it basically requires agencies to have procedures in place that permit suspicionless queries for people who are seeking to travel to the United States, whether it's as a tourist or whether it's on a work visa or a student visa or whatever the case may be, even if none of the many vetting mechanisms that the government already uses has turned up any reason to worry about these individuals. This is completely unnecessary. People should be able to travel to this country to study and work in this country without turning over their personal communications to be read by the government. There are plenty of vetting mechanisms in place to ensure that they don't pose a threat to national security. And there is an impact on Americans' privacy, on U.S. persons' privacy as well, partly because these are totally suspicionless searches. So, to the extent that these queries return communications that include Americans as participants, these are very likely to be completely innocuous conversations with no foreign intelligence in them, and that is an intrusion on these Americans' privacy. Also, as we've already seen, there have been significant compliance problems with this travel vetting provision, and including multiple queries of U.S. persons under this authority.

Rep. Chuy Garcia (D-IL)SPEAKER_06

Thank you so much. You're underscoring that this is not a partisan issue, and of course I look forward to working with Chair Jordan and other members and other parties to ensure that this provision is not included in the reauthorization of Section 702. Thank you, and I yield back. Mr.

Chairman Jim Jordan (R-OH)SPEAKER_15

Chairman yields back. The gentleman from New Jersey is recognized.

Rep. Jefferson Van Drew (R-NJ)SPEAKER_14

Thank you, Chairman. So it's good to see, because especially in a committee where we debate a lot, we argue a lot, we have different viewpoints on, quite frankly, just about everything, that we are, on by and large, all of us on the same page with this. It is heartening and it is good. FISA, the misuse of FISA, was truly, I believe, one of the low points of our republic. What happened, invading people's personal lives. If there's anything, and you all know this, you're smarter than me historically, that this country, that this republic was supposed to stand for was that individual freedom and individual rights and not to have the government, because of political reasons, or social reasons, or religious—for any reason, invade our privacy, invade our family, invade our lives. So we had hearings, as you all know. We were all here. Most of us were here at the time. Really dug deep. I want to thank the chairman as well. He never gives up. We are going to get this done. We had hearings and there was some disagreement not so much within this among us, but more the disagreement was with other committees and other individuals in Congress. So here's my question. This is what I want to get down to. We did legislation. It was an improvement. It was a compromise. That's all wonderful. We want to still do better. So if you could, and we'll start with Mr. Tolman, just go down the line relatively briefly. What has worked well? Where have we done a good job? And, by the way, if you think we haven't done a good job anywhere, you can say that. Nobody's going to get mad. And where are we vulnerable? Where do we still have problems? Where do you worry at night that we are going to lose our precious freedom? Mr. Tolman.

Mr. Brett TolmanSPEAKER_05

The first thing that comes to mind that you did well is you won the public debate on this issue. It was, it used to be very siloed, limited voices that were were shouting, This is a this is a concern and it's going to violate citizens' rights and they're going to abuse it. And it was not believed, and the public was not aware. This body—and I give this House the credit, not the Senate—I give this body, this chairman, and others that turned the tide in the public debate on this and the awareness, and that, to me, is the battle. I would say the thing that keeps me up at night is this: I would like our FBI to get back to finding bank robbers and less intelligence gathering. And until that happens, we will always need robust guidelines to rein them in.

Mr. Gene SchaerrSPEAKER_19

Thank you for the question. We've discussed earlier four specific reforms that I think all of us agree on that need to be made. One of those is fixing something that happened with RISAA, which is the overexpansion of the definition of electronic service provider, which was expanded so much that it now includes many small businesses and even churches and other institutions. And that needs to be pared back and limited to its original purpose, which is to allow the FBI to reach data centers. So, that's one important reform. We've also talked about closing the backdoor search loophole in FISA that allows the government to search Americans' information, some of their most private information, without a warrant. We've also talked about closing the so-called data broker loophole, which allows government agencies to essentially buy their way around the Fourth Amendment just by buying data from data brokers. And then there's a real need still. There were some useful reforms made in RISAA to oversight of the Foreign Intelligence Surveillance Court, but there's an additional, important reform that we believe needs to be made, which is to expand the amicus program within that court so that independent privacy experts are brought in in sensitive cases to advise the court and act as kind of a counterweight to the FBI and the DOJ when they try to seek warrants, to have somebody else in the room who has a responsibility for protecting Americans' privacy generally, to ensure that the FISA Court does that. So

Rep. Jefferson Van Drew (R-NJ)SPEAKER_14

thank you. Um, I know, you know, between the two of you have 17 seconds. If you can really just—

Mr. James CzerniawskiSPEAKER_26

sure, I'll be real brief. Um, second everything that's been said. I think that this is critical to continue the conversation because, as I mentioned in my opening statement, this is a crisis in faith in the government, in, in a key agency, uh, and agencies that are responsible for protecting us, and And that's why if we get these reforms done, that can go a long way towards fixing that problem.

Rep. Becca Balint (D-VT)SPEAKER_02

Thank you.

Ms. Elizabeth GoiteinSPEAKER_01

I think there were some helpful reforms in RISAA. I think the main problem is it just didn't go far enough. It didn't go far enough because there wasn't a warrant requirement. There are a couple of places where RISAA took some steps backwards. That includes the ECSP provision. It also includes a couple of provisions that actually weaken amici that we haven't talked about yet, and maybe we can talk about them later, but that's— yeah, that's

Rep. Jefferson Van Drew (R-NJ)SPEAKER_14

in plain vernacular, though. The FBI still needs a makeover. We still need—we can't give up on this. I, I'm Chairman, I know I'm over. Just for a second, I love old mystery shows, old mystery, and I was watching an old mystery, it dates back to the 1940s, and they're talking the FBI and how they overreached and were punishing somebody because they disagreed with something they did. And I was sitting with a friend of mine, he said, God, that would never happen. I said, Boy, are you wrong. That show was right. Thank you. I yield back.

Chairman Jim Jordan (R-OH)SPEAKER_15

To the gentleman's point, I said this earlier, I do believe it's accurate to say of the $12 billion budget that the FBI has, over half that budget is spent on surveillance or surveillance-like activities. And I believe over half the personnel—to Mr. Tolman point, you want them going after the bad, the bank robbers and the drug you know, those kind of folks, versus what what seems to be the focus the last several several years. The gentleman from Florida, the new ranking member, is recognized.

Rep. Jared Moskowitz (D-FL)SPEAKER_25

Uh, thank you, Mr. Chairman. Um,

Rep. Brad Knott (R-NC)SPEAKER_08

will the gentleman yield

Rep. Jared Moskowitz (D-FL)SPEAKER_25

for a second? Sure.

Rep. Brad Knott (R-NC)SPEAKER_08

I was kidding. Go ahead.

Rep. Jared Moskowitz (D-FL)SPEAKER_25

Oh, I was really interested in what was about to happen.

Chairman Jim Jordan (R-OH)SPEAKER_15

He fooled me too, Brad.

Rep. Jared Moskowitz (D-FL)SPEAKER_25

Well, I was going to say, Mr. Chairman, thank you. And I sit at the end of the dais. I'm I'm the last Democrat here. And so many questions and comments have already been made on this important topic, which is FISA. And I am absolutely for FISA reform. But, Mr. Chairman, when I think about FISA, you know what I really think about? I think about affordability, and the hoax of affordability, okay? Because perhaps someone should tell the president that every time he says affordability is a hoax, another Democrat sprouts out of the ground and lands in the House of Representatives, and eventually we'll get a gavel. And if he doesn't like saying affordability, that's fine. We can come up with another word. If he doesn't want to say that things are unaffordable, we could just say things are expensive. We could agree to just say that instead. We could just say things are expensive instead of unaffordable. I really want to talk to the person who puts the words into the teleprompter, because this is like a Ron Burgundy situation. Every time he says affordability is a hoax, it's like—

Rep. Jefferson Van Drew (R-NJ)SPEAKER_14

the gentleman yield?

Rep. Jared Moskowitz (D-FL)SPEAKER_25

in a second. Let me do this, and then I will yield. But every time he says affordability is a hoax, it's like saying, Go fuck yourself, San Diego. Okay. Or is it San Diego? Scholars say the translation was lost long ago. I don't—there's just no—there's no partisanship on the grocery store bill. I know what you're saying, Jared, be honest. Tell the other side of the coin. Okay, gasoline prices are down, right? See, I'm being fair. Gasoline prices are down, and that's great. Getting energy prices down is important. But they're not as down as he much as he's projecting. But the problem is you can't eat gasoline, right? You can't eat gasoline unless, of course, Kennedy proposed that as some sort of way to get rid of COVID. Okay. And what I would say is, is that even though we all subscribe to our own set of facts these days—we do. The only thing is that still is a constant is that 2 + 2 still equals 4 for now, okay? And so, when you go to the grocery store and you get the bill, there's no partisanship on the bill. There's no partisanship on that bill; there's just prices. And so you can go to all the stadiums you want, you can fill all the stadiums you want, and you can talk about this being a hoax all you want. But as long as people are paying double and triple for groceries and rent and health insurance and home insurance and transportation and car payments, it won't work, okay? And you're going to say, Jared, how do you know it won't work? We tried it! We tried it for a whole year during the election. The economy is great, the stock market is great. We tried to tell people how to feel, and it didn't work. In the weirdest plot twist ever, I can't believe Trump is copying your favorite president, Joe Biden. I feel like any moment, Trump's just going to be like, And Trumponomics is great. It's just wild. I feel like Howard Lutnick is about to come on television and talk about how crudite prices are coming down, right? And so look, let me just say, this is why I believe in FISA reform. Okay. And now I will yield to your question.

Rep. Jefferson Van Drew (R-NJ)SPEAKER_14

Well, you almost started to answer for me, so I love you, man. You're a great guy. Great congressman. But that doesn't have a damn thing to do with what we are talking about today.

Rep. Jared Moskowitz (D-FL)SPEAKER_25

I know it, but 50 people already spoke and asked all the questions and comments.

Rep. Jefferson Van Drew (R-NJ)SPEAKER_14

The subject matter today is really, really important. I get it. I get the politics. I get the affordability.

Rep. Jared Moskowitz (D-FL)SPEAKER_25

No, well, affordability is probably slightly more important,

Rep. Jefferson Van Drew (R-NJ)SPEAKER_14

But this is people's personal freedom. Let me tell you, people died multiple times in many wars right back to the Revolutionary War so people could believe what they want to believe, say what they want to say, believe in a God— Reclaiming

Rep. Jared Moskowitz (D-FL)SPEAKER_25

my time quickly, and then I'll yield back. Listen, don't get me wrong, the Revolutionary War, very important, but I think most Americans care about what they're paying for goods today rather than what happened during the Revolution.

Rep. Jefferson Van Drew (R-NJ)SPEAKER_14

Gentleman would yield again. Yes,

Rep. Jared Moskowitz (D-FL)SPEAKER_25

I will

Rep. Jefferson Van Drew (R-NJ)SPEAKER_14

yield back. They do. They also care about their personal freedom. They, they care if their daughter or son or brother or sister is being surveilled, if they're losing their freedom, if the judicial system is going out to hurt them because they believe something different. It's a big deal. And that matters. That's what we should be doing today.

Rep. Jared Moskowitz (D-FL)SPEAKER_25

Reclaiming my time. I know they do care about that, but if they can't pay their rent and they can't feed their family, the rest of it is less important. And so that's why I brought up affordability, because quite frankly, it's not a hoax. It's a real thing, just like FISA is. And we're just not having hearings on that, and I'm still waiting for Pam Bondi to come back. So, look, we got like a week left. Well, oh, the chairman's got something on it.

Chairman Jim Jordan (R-OH)SPEAKER_15

No, I'm just— I

Rep. Jared Moskowitz (D-FL)SPEAKER_25

didn't know if you had an announcement. I yield back, Mr. Chairman.

Chairman Jim Jordan (R-OH)SPEAKER_15

No, I was, I was going to cut you off, but not until you had your full 5 minutes. And

Rep. Jared Moskowitz (D-FL)SPEAKER_25

I appreciate my placing on the committee for today.

Chairman Jim Jordan (R-OH)SPEAKER_15

And Ms. Bondi is coming. She was scheduled, and then we had this 43-day, month-and-a-half shutdown by the Democrats, so she wasn't able to be here. So we'll

Rep. Jared Moskowitz (D-FL)SPEAKER_25

then the speaker furloughed us for 45 days. I had never been furloughed before, by the way. We

Chairman Jim Jordan (R-OH)SPEAKER_15

will.

Rep. Jared Moskowitz (D-FL)SPEAKER_25

Okay.

Chairman Jim Jordan (R-OH)SPEAKER_15

We will. We will have her. The gentlelady from Wyoming is recognized.

Rep. Harriet Hageman (R-WY)SPEAKER_12

Classic Democrat ploy. Deflect attention from every single thing that he described about affordability being caused by their policies, and then turning around and attempting to blame us for the problems that they created with the housing, the increase in housing costs, the increasing in food costs. We're fixing those things, the policies that they implemented, and I have every expectation that we will see a decline in some of those prices next year. But I actually want to talk about why we're here today, because it is a very important hearing. I have long been a proponent for including sunsets in government programs and authorities, and I believe we commit legislative malpractice in a lot of the things that we do when we don't include sunsets. I hold this principle to be especially true when dealing with technology and technological advances, which always seem to move much more faster, much faster than government, and we can evolve when we're drafting our bills. FISA is a perfect example of this issue. Since its creation in 1978, the scope of FISA authorities has continually grown, as has its abuses. As the intelligence agencies we oversee push their surveillance abilities beyond these statutory allowances, that issue today is compounded by new technologies and the commercial availability of data. Today, we as legislators face two unique challenges. First, reforming Section 702 to correct past abuses, which, for some, appears to be a controversial exercise in and of itself, although I don't see that as to why it should be controversial. But second, we also need to update federal laws and protections to account for the pace of technological advancement. And here we are. We're actually talking about and working on reforms, with the chance to vote on those reforms in 2026 for the second time in my two terms in Congress, which I think is a really good deal. Why? Because Congress was wise enough to sunset these important authorities to aid in our ability to consistently review them. Mr. Czerniawski, technological advancement and the private sector always seem to move faster than the government. Does maintaining these two-year reauthorizations of Section 702 provide a better chance for us to keep up with the pace of those changes and also to address any new violations that we may see?

Mr. James CzerniawskiSPEAKER_26

Thank you for the question, Representative. And I think that sunsets on a shorter timeframe are an amazing tool for you and this committee, more broadly speaking, to assert its authority and its oversight function over these critical agencies. We want them to be able to go and do their national security mission to keep this country safe. But at the same time, as you've documented it, as these witnesses have documented, there is a litany of abuses that FISA has enabled. And what better way to make sure that that is on the decline, if not hopefully, ideally eliminated, than by having these shorter reauthorization periods?

Rep. Harriet Hageman (R-WY)SPEAKER_12

And I've been an advocate for the warrant requirement and some of the other changes that we have made, some of the other modernization and the safeguards that we've put in place. You've been asked an awful lot of questions today. What I'd like each of you briefly to do is to describe for me, for us, if you see any other reforms that we should be making when we re— when we revisit this in April of next year. Mr. Tolman, starting with you, have we touched on all of your proposed changes, or do you have additional ideas that you would like us to consider?

Mr. Brett TolmanSPEAKER_05

With respect to 702, we have addressed them. But with the FBI, I think we have work to do. I think shifting their mission back to interdiction of drug and violent crime should be their central focus and not the gathering of intelligence. And until then, we will see abuses that we have to rein in.

Rep. Harriet Hageman (R-WY)SPEAKER_12

Just very quickly, I don't know if you were aware, but at the beginning of the 118th Congress, when we were doing the Select Committee on Weaponization of the Federal Government, we had a former FBI agent who came and testified, and he talked about how the mission had been shifted after 9/11. And I think you touched on that briefly today as well, and I agree with you. We need to get back to a pre-9/11 mentality with regard to the FBI. I think it's important, and I appreciate your advice in that regard. Mr. Schaerr.

Mr. Gene SchaerrSPEAKER_19

Thank you for the question. If I could add one thing to the four specific reforms that I mentioned earlier, I would add the NGO Fairness Act, which I know that this committee has already has already passed and reported out, but perhaps that could be attached as part of the 702 reauthorization bill because it's certainly closely related to the items in that bill. So I would suggest adding that.

Rep. Harriet Hageman (R-WY)SPEAKER_12

Thank you. Mr. Czerniawski?

Mr. James CzerniawskiSPEAKER_26

Yes, I would second Mr. Schaerr point of adding in the NDO Fairness Act into that and everything else, the four core ones that we mentioned, too.

Rep. Harriet Hageman (R-WY)SPEAKER_12

Thank you. And Ms. Goitein?

Ms. Elizabeth GoiteinSPEAKER_01

If there was one thing I would add to those four things, which I agree with, it would be closing the backdoor search loophole for Executive Order 12333 collection.

Rep. Harriet Hageman (R-WY)SPEAKER_12

Okay. Thank you. I appreciate it. And with that, I yield back.

Chairman Jim Jordan (R-OH)SPEAKER_15

gentlelady yields back. If the gentleman from South Carolina—we're going to just flip, if we could. Mr. Grothman has to go. We'll go Mr. Grothman, then we'll come right to you, Mr. Fry. So, Mr. Grothman is recognized.

Rep. Glenn Grothman (R-WI)SPEAKER_04

Thank you. Mr. Schaerr, when the FBI ask for— asks the FISA court for a Title I warrant to surveil someone in a politically sensitive case, let's say a member of Congress, an employee of a presidential campaign, as actually happened to President Trump, this all takes place in a secret proceeding, right? Generally speaking, is there anyone in the proceeding advocating for privacy rights and the Constitution?

Mr. Gene SchaerrSPEAKER_19

No, currently there is not, and that's a big problem. And I think that was a process which, if it had been in place during the Carter Page investigation, likely would have prevented the shenanigans that happened there. In fact, it could well have deterred the FBI and the Justice Department from even seeking that warrant at all.

Rep. Glenn Grothman (R-WI)SPEAKER_04

Can you give us a suggestion what to do about it?

Mr. Gene SchaerrSPEAKER_19

Yes, I think the best solution is to adopt something along the lines of the Lee-Leahy reform that was adopted by the Senate about 4 years ago by a vote of 77 to 20 or something like that. And what that reform would do is ensure that there is, in particularly sensitive investigations, that there is an amicus in the room and as part of the process when the FISC considers granting a warrant in those kinds of cases. And so it would be somebody who's trained in privacy, somebody who has a full security clearance and can serve as a check, a counterweight, if you will, to the Justice Department lawyers who, of course, will be seeking the warrant, but somebody who can be there and knows enough about the process to be able to help the FISC judges ask the right kinds of questions to be sure that there aren't any shenanigans going on.

Rep. Glenn Grothman (R-WI)SPEAKER_04

Okay, you've spoken about the data broker loophole, where federal agencies, ranging from FBI, the IRS, buy geolocation, internet search, and purchase history, and other sensitive information about Americans, all without a warrant or any reason to believe most of these people have done anything wrong. As we consider Section 702, a surveillance authority that has been repeatedly abused by the FBI, why is it important to also look at other government practices, like data purchases that violate Americans' constitutional privacy rights?

Mr. Gene SchaerrSPEAKER_19

Well, thank you, thank you for that question, and I think you're absolutely right that that purchasing data can be an effective way currently for agencies to do an end run about the Fourth— around the Fourth Amendment, and they shouldn't be allowed to do that. Whether or not they're allowed to purchase the data, they shouldn't be allowed to use it to surveil Americans without going through the same warrant process that we've been talking about with respect to the Section 702 database.

Rep. Glenn Grothman (R-WI)SPEAKER_04

Are there any procedures in place now to protect against the malignant use of FISA?

Mr. Gene SchaerrSPEAKER_19

from the malignant use of FISA?

Rep. Glenn Grothman (R-WI)SPEAKER_04

malignant use of FISA, yeah.

Mr. Gene SchaerrSPEAKER_19

Well, there, there are some procedures in place and some that were enacted by, uh, by this body a couple of years ago that are, that are, that are useful and important, but there are a number of others that need to be added, like the warrant requirement for backdoor search.

Rep. Glenn Grothman (R-WI)SPEAKER_04

Are there any consequences for FBI agents that conduct improper searches?

Mr. Gene SchaerrSPEAKER_19

I understand there are potentially some administrative consequences, that they can lose their security clearances if they're found to have violated the department's own rules.

Rep. Glenn Grothman (R-WI)SPEAKER_04

Have they ever been used?

Mr. Gene SchaerrSPEAKER_19

Not that I know of.

Rep. Glenn Grothman (R-WI)SPEAKER_04

Okay, how did the FBI allow such a profound breakdown in internal communication and verification processes that investigators failed to properly report Carter Page's status as an operational contact, information they already possessed, ultimately enabling an attorney to alter documentation and resulting in nearly a year of unlawful surveillance?

Mr. Gene SchaerrSPEAKER_19

Well,

Mr. Gene SchaerrSPEAKER_19

the independent counsels who investigated that, that whole sordid history concluded that it was not just an innocent mistake.

Rep. Glenn Grothman (R-WI)SPEAKER_04

Okay. Mr. Tolman, we'll try to give you a quick question at the end. There are reports indicating that some agencies are spending tens of millions of dollars on multi-year contracts to purchase sensitive data on American citizens. Can you elaborate what problems this poses?

Mr. Brett TolmanSPEAKER_05

Well, first and foremost, if if the internal guidelines to help prevent abuse become effective, the FBI's response is to not to not stop wanting to get that information. Instead, they've pushed it out to purchasing that information, and it's the tip of the iceberg. If they expand that program, there's no end to what they can get without a warrant.

Rep. Glenn Grothman (R-WI)SPEAKER_04

Okay, thank you very much.

Chairman Jim Jordan (R-OH)SPEAKER_15

Gentleman yields back. We have about 20 more minutes if that's, that's good. We'll, we'll just, we'll just keep on moving. Oh, does someone need a break?

Ms. Elizabeth GoiteinSPEAKER_01

Ideally 2 minutes.

Chairman Jim Jordan (R-OH)SPEAKER_15

I understand. We will take a, you can take a break, and if your questions are going to the gentlelady, we'll hold. If not, we'll let you, Mr. Fry, continue with the three remaining witnesses.

Rep. Russell Fry (R-SC)SPEAKER_21

We'll move around. We got a lot of questions. So,

Chairman Jim Jordan (R-OH)SPEAKER_15

all right. Thank

Rep. Russell Fry (R-SC)SPEAKER_21

you, Mr. Chairman. Mr. Schaerr, would you agree that the Woods Procedures serve as a good faith oversight safeguard and that obstructing them in any way removes and undermines public trust in the FISA process?

Mr. Gene SchaerrSPEAKER_19

I, I'm not proposing that the— that they be removed or obstructed. Um, if they, if they work properly, then they serve a useful function, but they're no substitute for Congress is, uh, playing its role in ensuring accountability.

Rep. Russell Fry (R-SC)SPEAKER_21

But don't— but don't— but do you agree that they serve as an oversight safeguard?

Mr. Gene SchaerrSPEAKER_19

Yes.

Rep. Russell Fry (R-SC)SPEAKER_21

And so violating them by some government official would, would undermine public trust in what the, what the government is—

Mr. Gene SchaerrSPEAKER_19

I'm sorry, I misunderstood your question. You're right, violating them would undermine public trust. I agree.

Rep. Russell Fry (R-SC)SPEAKER_21

Thank you for that. Mr. Tolman, during Crossfire Hurricane, FBI Attorney Kevin Clinesmith altered an official document used in a FISA application enabling the government to illegally surveil Carter Page for 11 months. Clinesmith ultimately received 12 months, only 12 months of probation. Do you believe that that's sufficient punishment for his his violation?

Mr. Brett TolmanSPEAKER_05

It serves as no, no deterrence, and, and deterrence is the predictability of being held accountable.

Rep. Russell Fry (R-SC)SPEAKER_21

Well, that was my next question too, which was to the extent that you didn't think that it was sufficient, would that be an actual deterrent for other people seeking to violate FISA? Are there additional avenues that exist to hold the FBI accountable in lieu of that?

Mr. Brett TolmanSPEAKER_05

There really are no no avenues. In In fact, the ethics investigations that would be conducted are all handled in-house. And subsequently, in any solicitor general or Office of Inspector General that would actually attempt to investigate it, they're limited in that they can't themselves bring any criminal action. So I would say there's no current deterrence.

Rep. Russell Fry (R-SC)SPEAKER_21

How would we increase that deterrence?

Mr. Brett TolmanSPEAKER_05

Well, certainly not relying on the courts and a Washington, D.C. jury to actually administer accountability.

Rep. Russell Fry (R-SC)SPEAKER_21

Mr. Tolman, are you saying that Washington, D.C. doesn't have all the answers for the American people?

Mr. Brett TolmanSPEAKER_05

I think that's exactly right, and I think this is why Congress is so important right now.

Rep. Russell Fry (R-SC)SPEAKER_21

Thank you for that. I wholeheartedly agree. Mr. Schaerr, back to you. In 2019, the US Court of Appeals for the Second Circuit raised concerns about Section 702's ability to enable broad queries of Americans' communication. The court essentially held that law enforcement cannot search people's communications without any suspicion just to see if something incriminating turns up, which of course it would violate their Fourth Amendment rights. Is this an example, though, of government fishing for criminal evidence at the expense of the Constitution and people's Fourth Amendment rights?

Mr. Gene SchaerrSPEAKER_19

I think that's a fair characterization.

Rep. Russell Fry (R-SC)SPEAKER_21

How widespread do you believe this practice is.

Mr. Gene SchaerrSPEAKER_19

Well, just from the number of queries that are run, it seems like it's quite widespread, and yet another reason why it's important to have a warrant requirement before the 702 database can be searched.

Rep. Russell Fry (R-SC)SPEAKER_21

I I agree with you there, too. I think the number of queries and the amount of people that had access to this is is very alarming as well. What do you think this also reveals about the culture within the FBI that they do this with with impunity, without regard to people's constitutional rights and without, any any reasonable suspicion that any particular person is engaged in some criminal activity unless they just happen to dig it up?

Mr. Gene SchaerrSPEAKER_19

Yeah Well, certainly the whole Carter Page fiasco and many other, many of the other examples that we've discussed today are are examples of it, of an investigation culture that seems to have seems to have run amok, and yet another reason why the Article III branch should be should be brought into the mix to exercise some oversight.

Rep. Russell Fry (R-SC)SPEAKER_21

Thank you for that. I'm gonna switch gears just a little bit too, just about government data purchasing. Obviously, government agencies are using this In what ways should Congress look to close these loopholes that allow them to purchase this data that evades people's Fourth Amendment liberties?

Mr. Gene SchaerrSPEAKER_19

Is that to me?

Rep. Russell Fry (R-SC)SPEAKER_21

Yes, sir.

Mr. Gene SchaerrSPEAKER_19

Well, whether or not Congress decides to allow the agencies to purchase the data, how they use it is the key question. And, and I think before the government can search any database, whether it's the 702 database or a database consisting of of data that has been purchased, there should be a requirement that if they're if they're looking at sensitive personal data, including people's communications, that they ought to have to get a warrant to search it.

Rep. Russell Fry (R-SC)SPEAKER_21

Thank you for that, Mr. Chairman. I see my time has expired, and I yield back.

Chairman Jim Jordan (R-OH)SPEAKER_15

Gentleman yields back. The gentleman from North Carolina is recognized.

Rep. Brad Knott (R-NC)SPEAKER_08

Thank you, Mr. Chairman. Thank you for holding this hearing. To the witnesses, we certainly appreciate your duration, your endurance, and the candid answers that you've given. I've got to say that every time we bring this statement up, it stuns me. We pass a law to surveil foreign threats to the country, and we abuse it by spying on the United States citizens that we are tasked to protect. When you boil it down in that simple term, it's stunning. It is stunning. Warrantless access allowed under a trust agreement with those who are investigating. This comes from someone myself who worked with agents, I worked with the law enforcement professionals all over this country who are very proficient at investigating. I was proud to do it. I was honored to do it. But I must say that this particular sect of the law is entirely too secretive. It's entirely too bureaucratic. There is absolutely no disinfectant of the bright lights of a courtroom that people have access to. And when you look at kind of the construct, plainly speaking, with this power, it enables the investigators to target people, not criminal behavior. And that is the inherent danger that I see here. And when you open up just the documented abuses, again, even the documented abuses we receive in a report, and we trust that those are all the abuses, right? That's to me, again, a very problematic posture. But some of the abuses include intrusive searches for nefarious or creepy reasons, right? Personal reasons from bureaucrats who are nameless and faceless, who have not been fired or punished. Some of these intrusive searches are for political motivations, again, see Carter Page, right? And there's no disinfectant of the bright light. When I was doing these investigations, we would observe criminal conduct, we would seek authority to get the information, and then we would get the warrant, right? Then once the information was in hand, we would go through it to determine what charges, if any, would come forward. So with that as my basis, let me just ask, is it a problem that the information is already in hand before any warrant is ever needed in the process? Mr. Schaerr,

Mr. Gene SchaerrSPEAKER_19

It is a problem. It's probably inherent in the whole Section 702 collection process and and in the the legitimate need to engage in surveillance of foreigners. But it's a it's a problem that is, I think, easily solved with a with a warrant requirement. Before before the information can be can be queried on individual Americans, then there needs to be a warrant in place.

Rep. Brad Knott (R-NC)SPEAKER_08

Well, that's getting to the root of my problem. Yeah, the query is a fancy word for search,

Mr. Gene SchaerrSPEAKER_19

correct?

Rep. Brad Knott (R-NC)SPEAKER_08

There's no way to prevent searches in the back channels of a deep government bureaucracy, correct?

Mr. Gene SchaerrSPEAKER_19

Uh, there may be no way to prevent them, but there's certainly ways to deter them.

Rep. Brad Knott (R-NC)SPEAKER_08

Sure, but we're not doing that. But again, you have a pot of information In the back channels of bureaucracy, and we're trusting them not to abuse access. Is there— is there a way to preclude access to that information without a warrant?

Mr. Gene SchaerrSPEAKER_19

Not that I'm aware of, which is why that's my problem. Requirement is so important.

Rep. Brad Knott (R-NC)SPEAKER_08

Yes, that's my problem. Is there a way to preclude, or is there a way to gauge whether or not there have been queries if they want to hide those queries? They being the FBI.

Mr. Gene SchaerrSPEAKER_19

I'm not sure there's a way to do it.

Rep. Brad Knott (R-NC)SPEAKER_08

Mr. Tolman.

Mr. Brett TolmanSPEAKER_05

No, my concern is if, for example, take the analogy that the searches are large boxes in an Amazon truck, right? And if the FBI knows that each box has multiple individuals in it, my concern is they'll say, We're only going to search this box, right, where the target actually is, but there's multiple individuals that deserve protection under the Fourth Amendment, and we don't get to when they're searching those.

Rep. Brad Knott (R-NC)SPEAKER_08

Right. You were raising your hand, ma'am.

Ms. Elizabeth GoiteinSPEAKER_01

Yeah. I mean, you raise an excellent point, which is if they collect pretty much everything, any of these backend protections, including the requirement to get a warrant, are going to be imperfect necessarily. That is a very good reason to limit the collection on the front end. And one of the reforms—

Rep. Brad Knott (R-NC)SPEAKER_08

Just so people know, we would have evidence that a criminal actor was using his or her cell phone. We would ascertain the number through investigative means, and then we would apply for a warrant to get location data, who they were calling. And then, if need be, the most intrusive search was a Title III wiretap. We had to bend over backwards to demonstrate the need to get the information that the government right now is collecting en masse with no warrant. It's really astounding to me. And if there's no way to protect against abuses, I wonder what the solution is. And I'll turn it over, if you could go down in sequence, starting with you, ma'am. What are ways that we can protect that information in addition to the warrant requirement?

Ms. Elizabeth GoiteinSPEAKER_01

Well, what I was going to say is that the initial scope of surveillance right now is too broad. Any foreigner can be targeted overseas under this broad definition, extremely broad, of foreign intelligence. And what that means is foreigners who there's no evidence or reason to believe that they pose any threat to the United States or their interests, they are subject to surveillance. What that means for Americans is that the pool of Americans' communications that can be incidentally collected is enormous. And it's likely to be these innocuous conversations. So refining the foreign targets at the front end would be an enormous protection for Americans. I mean, that, that is something I talk about in my written testimony.

Rep. Brad Knott (R-NC)SPEAKER_08

Thank you. Briefly.

Mr. James CzerniawskiSPEAKER_26

Yeah, I would just say what Liza said: refining down the scope of surveillance. And then, I know Wray already did this with reducing the number of FBI agents that had access to that database. I would say exploring how we can go and further reduce that number. Chair Jordan mentioned 10,000 before like

Rep. Brad Knott (R-NC)SPEAKER_08

shared custody of it.

Mr. James CzerniawskiSPEAKER_26

Yeah, exactly.

Rep. Brad Knott (R-NC)SPEAKER_08

Something.

Mr. James CzerniawskiSPEAKER_26

Yeah.

Rep. Brad Knott (R-NC)SPEAKER_08

I share,

Mr. Gene SchaerrSPEAKER_19

and I agree with those comments.

Mr. Brett TolmanSPEAKER_05

I would say perhaps we, we establish something like the taint team. You recall how we utilized that, where we would not allow those, you know, access to documents and data that they— that might be violative. Perhaps there's a layer that could be put in there that would prevent investigators from actually looking at the data until they've satisfied protocols.

Rep. Brad Knott (R-NC)SPEAKER_08

Mr. Chairman, I yield the balance of my time to the representative from Texas. Thank you all.

Chairman Jim Jordan (R-OH)SPEAKER_15

The gentleman from Texas is recognized for 5 minutes.

Rep. Brandon Gill (R-TX)SPEAKER_09

Thank you, Mr. Chairman, and thank you to the witnesses for taking the time to be here and for your expertise. I entirely associate myself with the great line of questioning from my friend Mr. Knott in North Carolina, but want to begin and just kind of break this down really quickly on a basic level. Ms. Goitein, what is the Section 702 database?

Ms. Elizabeth GoiteinSPEAKER_01

It's not a single database per se. Section 702 enables the government to collect the communications of certain foreign targets, which is pretty much any foreigner if the government has a foreign intelligence purpose, and to collect any information on them, including all of their communications. And that includes communications with Americans. All of that gets fed into various different data systems that different agencies have.

Rep. Brandon Gill (R-TX)SPEAKER_09

And, and how vast are these data systems? In other words, what types of information is being collected and, and about whom,

Ms. Elizabeth GoiteinSPEAKER_01

right? So we have very little public information about that, but in 2011, which I think is the last time this particular statistic was reported, there were 250 million communications, internet communications obtained. And that was when there were far fewer targets. If you extrapolate with the number of targets we have today, it's about a billion communications, internet communications, collected every year. And because they reside in these systems for at least 5 years, several billion communications right now in storage collected under 702.

Rep. Brandon Gill (R-TX)SPEAKER_09

And what are these communications? Are these calls, texts, emails, location data?

Ms. Elizabeth GoiteinSPEAKER_01

It can be anything, and it doesn't have to be communications. It can be any kind of foreign intelligence information, or information that qualifies as foreign intelligence. Actually, it doesn't have to be foreign intelligence. The government just has to have a foreign intelligence purpose. So it can be any kind of information imaginable, and, but definitely it includes electronic surveillance, which is communications.

Rep. Brandon Gill (R-TX)SPEAKER_09

Got it. And who could be tied up in this database in terms of American citizens? Members of Congress every day, American citizens who all could be caught up in this,

Ms. Elizabeth GoiteinSPEAKER_01

right? So there are almost 300,000 foreign targets, um, and they do not— as I said before, they don't have to be suspected of any wrongdoing. Um, and so anybody who has the misfortune of being in communication with someone who has been designated as one of these targets, their communications will be swept up.

Rep. Brandon Gill (R-TX)SPEAKER_09

So we have billions of data points from American citizens who have never been convicted of a crime.

Ms. Elizabeth GoiteinSPEAKER_01

Not all of the billions involve Americans. We don't know what proportion involves Americans because they won't give us— but a

Rep. Brandon Gill (R-TX)SPEAKER_09

large number,

Ms. Elizabeth GoiteinSPEAKER_01

presumably, because

Rep. Brandon Gill (R-TX)SPEAKER_09

of the

Ms. Elizabeth GoiteinSPEAKER_01

prevalence of international communications.

Rep. Brandon Gill (R-TX)SPEAKER_09

And where does all of this information sit?

Ms. Elizabeth GoiteinSPEAKER_01

Different databases in different agencies.

Rep. Brandon Gill (R-TX)SPEAKER_09

And that's all, all within the federal government that various actors have access to?

Ms. Elizabeth GoiteinSPEAKER_01

Yes.

Rep. Brandon Gill (R-TX)SPEAKER_09

Who, who has access to this information?

Ms. Elizabeth GoiteinSPEAKER_01

agents who are working on cases. I think it's a lot. We heard earlier it's basically 10,000 FBI agents. It's in the FBI—leaving aside the NSA and the CIA, it's agents in field offices all around the country.

Rep. Brandon Gill (R-TX)SPEAKER_09

and, and they don't need a warrant to access any of it?

Ms. Elizabeth GoiteinSPEAKER_01

No.

Rep. Brandon Gill (R-TX)SPEAKER_09

Okay. And what, what types of protocols or procedures are in place to help protect privacy? Of American citizens' data that sounds like all over the— within multiple agencies of the federal government,

Ms. Elizabeth GoiteinSPEAKER_01

Right? So there have been reforms that were put in place through last year's reauthorization of Section 702 that required things like attorney approval of U.S. person queries. It required people to keep a written justification of their queries, agents. It required an audit every 6 months by the National Security Division of queries. It required supervisory approval for certain sensitive queries. So there are sort of layers on layers of these sort of internal review or oversight mechanisms. Many of these were in place well before RISAA codified them. And even after these internal mechanisms had been adopted, we were still seeing abuses. We were seeing searches for the communications of a U.S. senator, a state senator, a state court judge who had contacted the FBI to report civil rights violations by a police chief. That was after many of these reforms had been adopted. So have they helped? Probably. Again, we don't have complete data from this past year, but they're not enough.

Rep. Brandon Gill (R-TX)SPEAKER_09

So there's millions of, potentially more, bits of communication information of American citizens sitting in various government databases that FBI agents have access to without obtaining a warrant. That seems like a pretty egregious violation of the Fourth Amendment, does it not?

Ms. Elizabeth GoiteinSPEAKER_01

Uh, to me, that is a violation right there, even if every single query complies with the internal standards and procedures orders that have been adopted. It's not probable cause and a warrant, and therefore it's a, it's a Fourth Amendment, uh, problem.

Rep. Mark Harris (R-NC)SPEAKER_03

Agreed. Thank you.

Chairman Jim Jordan (R-OH)SPEAKER_15

Gentleman yields back. The gentleman from North Carolina is recognized.

Rep. Mark Harris (R-NC)SPEAKER_03

Thank you, Mr. Chairman, and I thank all of you for your time and patience, and apologize for being in and out with three different committees holding hearings and markups all today. But listen, as a freshman member of Congress, as I've had the opportunity to listen today, I'm delighted to see that this committee is united in defending Americans' Fourth Amendment rights. And as we approach FISA reauthorization, I do think it's important to build upon the progress made last Congress in protecting Americans from unconstitutional searches. And that starts with addressing some of the shortfalls of last year's reauthorization and Reforming Intelligence and Securing America Act, also known as RISAA. Obviously, my biggest concern is the failure to include a warrant requirement, which failed as an amendment on the House floor. However, I understand there were other provisions in the bill that ought to be addressed, and one concern I have is the expansion of the definition of electronic communication service providers. I've been a pastor for 36 years, and I often worry about the ways in which government can be weaponized against churches and other religious institutions. So, Mr. Schaerr, does the expanded electronic communication service provider provision in RISAA mean that even churches and other places of worship could be demanded to facilitate the warrantless surveillance of their people?

Mr. Gene SchaerrSPEAKER_19

I believe so. I mean, if you look at the requirements for being considered an ECSP ECSP, an electronic communication service provider, most churches are providing Wi-Fi service to their parishioners when they come. My church does. I suspect your church does. And they do that using communications equipment, right? A Wi-Fi router that may be installed in the ceiling or somewhere else. So they really fit the definition of an ECSP, and therefore, at any moment, somebody from the FBI could come along and say, You have somebody in your congregation that we're suspicious of, and we want you to give us access electronically to everything that they're doing on their phone when they use your Wi-Fi service during the service. And they could force you as a pastor to do that, and they could also order you that you can't tell the person about it, right? So they're really dragooning people into secret surveillance of their parishioners or customers, if they're a small business, or whatever it may be.

Rep. Mark Harris (R-NC)SPEAKER_03

Wow, that's pretty scary.

Mr. Gene SchaerrSPEAKER_19

Now, we don't know that it's actually happened,

Rep. Mark Harris (R-NC)SPEAKER_03

right?

Mr. Gene SchaerrSPEAKER_19

But, but the, the way the law was drafted, that would be allowed.

Rep. Mark Harris (R-NC)SPEAKER_03

Exactly. Well, Mr. Schaerr, your group, the Project for Privacy and Surveillance Accountability, lists on its website, quote, "solutions to protect privacy and restore appropriate legal protections." The first solution on this list is requiring annual audits of surveillance programs. How does oversight of the use of FISA by government agencies currently operate?

Mr. Gene SchaerrSPEAKER_19

Well, the most effective oversight right now is this process of having to have it reauthorized every couple of years. In the, in the old days when it was every 5 years, uh, you know, the agency would basically do what— the agencies would basically do what they wanted until about a year before the reauthorization, and then they would try to clean up their act. And, and they can't do that anymore. So just this annual process, or this biannual process, is useful.

Rep. Mark Harris (R-NC)SPEAKER_03

And are there specific additional steps that you believe Congress can take to improve the oversight of the use of FISA by our government agencies?

Mr. Gene SchaerrSPEAKER_19

I think demanding more information from the FBI and the Justice Department about how these programs are actually being used, and then following up when they inevitably don't respond.

Rep. Mark Harris (R-NC)SPEAKER_03

Well, thank you very much for that. Mr. Czerniawski, in your written testimony, you mentioned that the intelligence community has used artificial intelligence to assist in conducting surveillance. While we all want our intelligence community to be able to conduct proper surveillance of foreign actors who seek to do us harm, we've got to ensure that developing technology is not used to further violate our Fourth Amendment. In just the last few seconds we have left, what steps would you say that Congress can take to ensure law enforcement uses AI in a way that respects Americans' Fourth Amendment rights?

Mr. James CzerniawskiSPEAKER_26

Absolutely. Thank you for the question, Representative. I think that we don't want to necessarily deter agencies from using new technologies to help them carry out their public mission. But that being said, as that technology's capacity to go and help them potentially violate people's rights gets that much greater, it makes it that much more important that we have these guardrails in place. Having that warrant requirement—as Congressman Knott was talking about before, the procedural elements of getting that warrant are very important, I think, to carrying out the mission. But they don't even have to worry about that right now, right? So if we're going to be leveraging these powerful technologies, let's make sure that we have those processes and procedures in place to minimize and hopefully ideally eliminate the misuses that have been well documented for years.

Rep. Mark Harris (R-NC)SPEAKER_03

Well, thank you so much. Thank you all again for your time and your persistence. Thank you, Mr. Chairman. I yield back.

Chairman Jim Jordan (R-OH)SPEAKER_15

Gentleman yields back. We're almost there. The gentlelady from Texas is recognized.

Rep. Jasmine Crockett (D-TX)SPEAKER_00

Thank you so much, Mr. Chairman. I share the concerns of all of my colleagues that they've mentioned this morning as this hearing has been taking place. The most important part of making reforms to government surveillance programs is ensuring that Americans' privacy rights are not being violated. But that requires Congress to do its job and conduct oversight of these executive branch programs. We all agree that significant reforms are needed for FISA, but over the past year, Republicans in the House and Senate have allowed this president to be careless with Americans' private data. This administration can't even prevent American citizens from being arrested in their mass deportation machine. Why should we believe that they'll be able to prevent Americans' private data from being unconstitutionally collected throughout government surveillance programs? For FISA to actually work as intended, federal agencies need enough staff and resources, but most importantly, they need competent leadership. Unfortunately, this president and his cabinet have shown themselves to be incapable of understanding the seriousness of handling sensitive information or protecting Americans' private data. When you have the Defense Secretary sending classified information to the vice president through Signal, or when extremist billionaires are allowed to have access to Americans' private data, or when ICE signs contracts to use surveillance technologies against Americans who are critical of their violent deportation tactics, all of this shows that this administration isn't serious about following the rule of law or protecting Americans' privacy rights. So we can talk for hours about legislative reforms needed for FISA, but none of it will matter if Republicans refuse to conduct actual oversight, or if they continue to allow the administration to dismantle federal oversight offices and positions. Under this administration, numerous federal agencies have fired internal agency record officers, used auto-delete technology when communicating, and stopped requiring the preservation of federal records. Ms. Goitein, okay, we often learn about abuses in federal surveillance programs through whistleblowers. So can you explain how the destruction of federal records can incentivize agencies to violate Americans' privacy records?

Ms. Elizabeth GoiteinSPEAKER_01

I'm sorry, the destruction of federal records.

Rep. Jasmine Crockett (D-TX)SPEAKER_00

Yes. Okay. So can you explain?

Ms. Elizabeth GoiteinSPEAKER_01

Oh, okay, okay. Sorry. Yes, my apologies. Yes, I'm following you. Yes, I think there's reasons why there are records retention schedules in the law. And it's because this is the official record of official action. It is needed for all kinds of purposes. It's needed for continuity over time with other administrations. At times, it can be needed for litigation. But it certainly can be important to reveal misconducts, fraud, waste, abuse, whether through internal oversight channels, whether through oversight by Congress or the courts, or through whistleblowers. So yes, it's important to preserve federal records in accordance with the preservation schedules.

Rep. Jasmine Crockett (D-TX)SPEAKER_00

Thank you so much. How have unchecked surveillance powers historically been used against marginalized groups?

Ms. Elizabeth GoiteinSPEAKER_01

It is such a long story, and it's not just in this country, right? It's around the world. Surveillance is a tool by which governments have have oppressed marginalized communities of all kinds. In this country, during the Cold War, there was widespread spying by the FBI, the CIA, and NSA, or and their the predecessor names for them, and that surveillance was targeted against anti-war protesters, it was targeted against social justice movements, it was targeted against Martin Luther King Jr., and it was targeted against political opponents of whether it was the president or people high up in the administrations. That is a feature of this country's history that actually led Congress to pass FISA to get some kind of control over foreign intelligence surveillance. A lot of these abuses were in the name of foreign intelligence. These were purported attempts to to find if there was foreign influence over certain movements. So, and it led to a number of other reforms by Congress. The problem is that since then, and especially since 9/11, some of the protections that were built into the law, including FISA, that were meant to deter this kind of spying on based on politics, race, ideology, religion, have been stripped out. And particularly after 9/11, they were stripped out sort of very, very quickly based on a sort of misguided sense that that was the way that we were going to stop a future terrorist attack. And as a result, we're vulnerable once again. I'm sorry I took so much

Rep. Jasmine Crockett (D-TX)SPEAKER_00

No, no, no, that's okay. Thank you so much. I appreciate you. And with that, Mr. Chair, I will yield.

Chairman Jim Jordan (R-OH)SPEAKER_15

Gentleman yields back. I want to thank you all. Seems to me everyone is probably in this giant database, wherever it may reside. We have tried reform after reform, and while helpful, it never seems to fully correct the problem. The deterrence, the penalties probably aren't there for those who continue to abuse it, as evidenced by the one guy who actually, on the Title I side of things, lied to the FISA court, changed the document, back practicing law, got his law license, and never never really got any kind of real sentence. So the only answer, seems to me, is what we've been spending 3 and a half hours talking about, is to get the warrant requirement in there. So we will continue to do that, continue to work on that, hopefully get it get it done. But you guys have been a tremendous panel. We appreciate you being here and the excellent testimony that you gave. And that concludes today's hearing. We want to thank all our witnesses again. Without objection, all members will have 5 legislative days to submit additional written questions for the witnesses or additional materials for the record. Without objection, the hearing is adjourned.