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Gaetz: Ms Goitein, many of my constituents will watch this hearing and they'll say, well, the Foreign Intelligence Surveillance Act, I'm not a foreigner. Why should that bother me? What would you say?

Ms Goitein: Americans' communications are swept up in enormous volumes, so enormous that the government won't tell us how big it is because it would be a very awkward number for the government to disclose. I suspect that's the real reason. And those communications are available to FBI agents without a warrant or court order of any kind.

Gaetz: And you talked about these back door searches and that's been an intense focus of the committee. Could you help define that for folks? So they understand the, the risk there?

Ms Goitein: Sure. What a backdoor search is, is an electronic query of data obtained under section 702. So the communications are obtained, they are placed into data systems at the NSA and then shared with the FBI, the National Counterterrorism Center and the CIA and then agents can run electronic queries of those data systems using identifiers associated with Americans. So using an American's email address, for example, they can plug that in and that will return any communications that were obtained under section 702 that have an American on one end of them.

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Gaetz: So we have this tactical question coming up. We have Pisa that is set to expire and I believe we should let it, I believe it does it, it, the, the standard of violation of breach is so pervasive that the patient is not savable that we have to design something totally different outside of 702. And then I have other colleagues who are, who are like minded in my desire to protect civil liberties, but who suggest tactically that the best approach is to try to insert strong warrant requirements. This is my seventh year in Congress Mr Kiko. I certainly don't have your experience, but I want to draw on it because I, I want to get your advice. I've gone down this road with the Cheney East and, and, and, and others who bring us to the precipice of reform. And then at the last moment, it seems as though the civil libertarians rarely prevail over those who, who purport to be defending national security no matter how many violations of our liberties occur. And so would you advise a reform effort or an exploration strategy and, and why?

Mr Kiko

Well, I would. That's a very tough question. And I know that's why you ask it. And I would, I can actually see my preference would be some kind of reform effort with teeth and accountability because there hasn't been any teeth and there hasn't been any accountability in, in the oversight that's been conducted. We're always at the end of the system, they say they're going to do something, it never gets done. Four years later, we find out there's massive violations. Everybody comes, well, we're going to do at this time, but there's no accountability among the people that are breaking the law. There's no accountability among the administration. It doesn't matter. There's nothing.

Gaetz: Yeah, it sounds like there need to be penalties. Thank you for your testimony.

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Dean: Ms Goitein, I was interested in your a very eloquent history of what's going on here and what has happened. We do need to review the FISA process. What are the most if you had maybe three areas of reform, what would be the most important? I know it's denser than that. What would be the most three top areas of reform?

Goitein: I I've been trying to narrow it down a little bit because I know that that's helpful, it's difficult. There's a lot that needs to be done, but I think I can at least narrow it to, to three buckets. And the first bucket is ensuring that seven section 02 works as intended and that means that it's not a domestic spying tool for that. We need to have a warrant requirement or a requirement of a FISA title. One order before the government conducts us person queries of section 702 data. Part of the section 702 reform also has to be narrowing the scope of permissible surveillance so that the government is not allowed to conduct surveillance of foreign targets who do not reasonably pose any threat to the United States or have any information about a threat to the United States. That is actually a vicarious protection for Americans privacy because the larger the scope of permissible foreign targets, the greater the volume of incidental collection of Americans communications. So that's the section 702 bucket.

Then I would say that Congress needs to complete the modernization of FISA by ensuring that Americans communications and Fourth amendment protected information are protected from warrantless surveillance regardless of where in the world the government obtains that information. And then finally, I would say that the government that the Congress has to close the data broker loophole. And while we were on break the house passed by voice vote, a bipartisan amendment cosponsored by representatives Jacobs and Davidson and with a long bipartisan list of cosponsors which I'm not going to list because I'm afraid I'll forget someone by accident. But the house passed an amendment that would prohibit the Department of Defense from buying its way around the fourth amendment and obtaining Americans fourth amendment protected information by buying it from data brokers. That is proof of concept.Congress can do this and Congress now needs to do that for all federal agencies.

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Dean: Mr Kiko, thank you too for your testimony and your work on this. We talked about whether to sunset and allow it to expire section 702 or to reform it as we've just had some conversation around that. What are the consequences of allowing 702 to simply expire later this year?

Kiko: Well, I think, I think allowing it to expire. You're turning over the keys to the, to article two to the executive branch and we've had a, we've had enough experience to know that even when they have a statute, there's ways to weasel around it. And I, I just would be very, I mean, article one is the Congress, they're the ones that established the law and we're gonna have to, you know, my, my experience would be to, to draft something but you're, you and you're gonna have to have close oversight. You're gonna have to bring the administration to heal, you know, for the consequences of abuse. But also we don't have to have it read as broadly as it is for data purchases and for all this other stuff that they've been somehow figured out to have jurisdiction over. So if you could narrow that and, and, and just, but really have tight oversight and also consequences for people and agencies that don't follow what the law is.

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Kiley: Professor Turley. In your statement, you quoted Justice Brandeis's famous formulation of privacy as the right to be let, let alone, which I do believe is indeed one of the rights most valued by Americans and that most Americans would be horrified to hear of the government having access to their private communications. There's something really fundamental about this separation between the public and the private.The idea that each of us has a sphere of personal privacy that is inviable, inviolable, that goes to the heart of what it means to live in a free society. but you know, sometimes you hear a contrary view that, well, if you're not doing anything wrong, what do you care?If the government has has access to this, what would be your response to, to that?

Well, thank you very much for that question. What's interesting about the quote that you just cited is that this was part of the Cats Olmstead line of cases and cats who said that the fourth amendment is there to protect persons, not places it got rid of the trespass doctrine as the key test for whether your rights are violated. We've sort of returned to that because the location of a lot of this data, if it's abroad, for example, or it's routed through international source suddenly loses its protections as a citizen. So to answer your question, how does that impact you? The answer is that 702 and the abuses under that section impact free speech, associational rights, a host of other constitutional rights because it creates a chilling effect that citizens know that their communications are part of a massive data bank that the government can search and piece together. Who you've talked to, who you sent to.You begin to live in this fish bowl society that impacts us as citizens. It impacts how we exercise rights, which is what BRANDEIS was referring to.

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Kiley: We've we've been talking a little bit about how this right was you know, put into our constitution by our founders in the form of the fourth amendment and how a lot of the jurisprudence and our understanding of the fourth amendment is rooted in this idea of a reasonable expectation of privacy. And so we've heard that the law, at least as far as the courts are concerned is a little bit unsettled when it comes to how that applies to the situation we're talking about today. So, in your view, is that a lens that Congress should look through when deciding what to do about PS A the reasonable expectation of privacy that Americans have? And how should that apply to to the gathering of information under section 702?

Schaerr Well, two points. First of all, I while Congress should take account of what the courts have said on the, the application of the fourth amendment in this setting, I don't believe with, with all respect that, that you as members of Congress should feel bound by what the courts say. All of you. I apologize if this comes across as a lecture, but all of you have taken an oath to support and defend the Constitution of the United States, not the interpretation of the constitution by some federal district judge in the western district of Wisconsin or wherever he or she may be, and you have the ability and I think the right and the duty under the constitution to, to reach your own conclusions about what the fourth amendment requires.

But secondly, even Congress has an important role to play in determining for the courts, what is a reasonable expectation of privacy? And, and when do the people of the United States have a reasonable expectation of privacy? And even if, even if some courts don't think that we have a reasonable expectation of privacy in our electronic data, which as we've heard may get sold to data brokers and then sold to other people. Congress can step in and say, no, we think the people of the United States do in fact retain a reasonable expectation of privacy in their, in their private data, even if it's held by Google or Amazon or somebody else. And, and we, the Congress of the United States believe that Americans retain an expectation of privacy in communications that have been collected pursuant to 703.

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Kiley: I think most Americans would understand we live in a dangerous world. Intelligence gathering is very important. Sometimes aggressive tactics are needed. And it's possible that on occasion, you know, information can be incidentally collected. So the question becomes once that information is there and in the government's hands, what do you think is the reasonable expectation of Americans as to what is done with that information? How long it's kept, who can access it? Because that's really, I think the question when it comes to reforming FISA that we need to consider.

Schaerr: Well, certainly. And if, and if people have not expressly consented to have that, that data collected and put into the 702 database or wherever else it goes. I think it's fair to say that they should retain an expectation of privacy in, in that data, even if somebody else has it. And therefore Congress can say consistent with the fourth amendment to the FBI. f you're gonna search that database of purchase data or if you or if you're gonna search the database of 702 derived information, You need to get a probable cause order from the court Thank you very much. It's great to see the bipartisan agreement on a lot of these principles and I yield back to the chair.