Nadler Opening Statement for Hearing on “Fixing FISA: How a Law Designed to Protect Americans Has Been Weaponized Against Them”
Washington, April 27, 2023
Washington, D.C. - Today, House Judiciary Committee Ranking Member Jerrold Nadler (D-NY) delivered the following opening statement, as prepared, during a hearing on “Fixing FISA: How a Law Designed to Protect Americans Has Been Weaponized Against Them:"
"Mr. Chairman, today this Committee finally gets back to the serious work of keeping Americans safe—safe from those who seek to do us harm and safe from those who might trample on our civil liberties in a quest to keep our country secure, no matter the cost.
"Section 702 of the Foreign Intelligence Surveillance Act, or FISA, is scheduled to sunset on December 31st of this year. I, myself, have never voted to reauthorize Section 702—but I recognize that these authorities are also important to national security, especially in today’s threat environment. I am looking forward to hearing from the expert witnesses in today’s hearing, and the hearings to come, and I intend to approach the question of reauthorization this year with a cautious but open mind towards reform.
"Since FISA Section 702 was last reauthorized in January of 2018, the surveillance landscape has considerably evolved. Five years later, on the other end of a pandemic, our online communications represent an even broader reflection of our daily lives. And under an authority as powerful as Section 702, even if the intelligence agencies are not targeting us directly, the government is sweeping up records of our banking, our meetings, our education, and our simplest human interactions.
"Foreign state actors have also adjusted to the new way of life—ransomware, cyber threats, and cyber espionage are all now common threats to the United States. Today, a foreign state actor can disable a hospital’s computer system, shut down a power grid, and steal classified national security information, all without entering the United States.
"Section 702 is one important tool our intelligence community uses to fight these and other threats. The problem with this authority has always been in its application. The statutory protections on the books are simply insufficient for protecting our civil rights and our privacy.
"For example, although Section 702 authorizes only the targeting of non-U.S. persons who are outside the United States, we know that massive amounts of U.S. person data are swept up under this programmatic surveillance. Despite our best efforts, our intelligence agencies have kept us largely in the dark as to how many Americans’ communications are incidentally collected every year—but we know, from what reporting is available, that the government has a lot of this data, and that much of it could not have been obtained without a warrant had they tried to collect it directly.
"The warrantless collection of this much data alone should give anyone pause. But those American communications are not just collected and set aside—they are made available to agencies like the FBI, who can search the 702 database for our communications, for purposes having nothing to do with national security. These so-called “backdoor searches” are neither hypothetical nor rare. Last year, the FBI used U.S. person identifiers to query the 702 database nearly 3.4 million times.
"Now, the FISA Court has found that querying information that has already been legally acquired is not considered another search under the Fourth Amendment. But incidental collection is not accidental collection—the government knows, at the outset, that it will obtain our communications; the FBI should not also be able to rifle through them as if they arrived by chance. Simply put, Congress should no longer entertain the legal fiction that backdoor searches are either constitutional or respectful of our privacy.
Nor should we find comfort in the FBI’s track record accessing this information appropriately. The FISA Court has repeatedly found violations at the FBI, where employees searched U.S. person identifiers for neither foreign intelligence nor evidence of a crime.
"True, in many of those cases, the Court found that the unauthorized searches were not malicious or intentional, but rather the product of a lack of training and difficult-to-use technology. And I suppose we should be gratified that the rate of these incidents appears to have dropped dramatically in the past year. But we have been tinkering with better training and better technology for almost two decades—and moving from a few million violations a year to “merely” a few hundred thousand does not inspire confidence.
"No massive surveillance operation should be given free rein to evade our constitutional protections, and Section 702 as it currently exists does just that. The question we face this year is whether changes to the 702 program can effectively protect our civil liberties.
"That is not a question that can be answered in just one hearing, but there is reason to be optimistic that Section 702 can be changed for the better. When Congress last reauthorized this provision in January 2018, it implemented some minor statutory changes to improve civil liberties protections. The effects of these changes are just beginning to be seen in DOJ querying practices and its publication of U.S. person query numbers, among others.
"And these small improvements are not limited to Congressional legislation. After the Court of Justice of the European Union struck down the US-EU privacy shield in 2020, an agreement that governed the flow of data across the Atlantic, the Biden Administration took steps to improve redress and oversight of its surveillance operations as part of negotiations for a different data privacy agreement. These, too, were steps in the right direction.
"As we consider the merits of this program, I would caution my colleagues against using the federal government as a bogeyman to prove some political point. Many of us agree that Section 702 needs to be updated to better protect Americans’ communications.
"But we should also acknowledge that the problems presented by 702 are not cabined to this administration or the last administration. Section 702 has been a threat to our privacy and civil liberties for years, and to pretend otherwise does a disservice to the important bipartisan work ahead of us.
"Thank you, Mr. Chairman, and I look forward to hearing from our witnesses."