>>19180414 (PB)

>>19180653 (LB)

Lee: I'd like to go back Mr Schaerr to some of what you've testified about in parts of your written testimony that you submitted to us. So we know that 702 is providing the FBI with access to a large amount of information about Americans. But one thing that you have touched on when we look at the concept of potentially creating alternative statutory schemes or potential revision, the concept that the government is also utilizing other sources of information, private data, other things to essentially surveil or gather information about Americans. I'd like to hear more about that subject and what you would propose if anything we should be doing to try to monitor or curtail that practice.

Schaere: I I assume that you're referring to the purchase of data, which is a, which is in my view, a an equally if not more serious problem than the vast trove of information that's collected under pursuant to section 702 and certainly both of those enormous databases together can, can be an enormously powerful surveillance tool and like any other surveillance tool, it it should be subject and in my view to a, to a judicial order with a, with a probable cause requirement. I think that's the most important thing that can be done. We, I, I don't, I don't think any of us here on the panel are disputing the, the wisdom or the ability of the FBI to, to collect the underlying data. Yes, in, in many instances, it's broader than it needs to be. But the, the, the key event is not so much the collection of the data as the, as the searching of that data using identifiers that are specific to American American citizens, in my view, that constitutes a search for fourth amendment purposes. And even if you disagree with that, it's still an important event to the privacy of an American citizen and is therefore something that Congress can and should regulate very closely. All right. Thank you, Mr Chair.

>>19181817

Fry: Professor Turley, I'd like to go back to something you mentioned earlier as well. And that is the concept of making the FISC court process. More adversarial adding an adversarial component of that or having an amicus involved in that process. Would you elaborate for us on how you think that type of reform could be implemented and how that might look?

Schaerr: Thank you very much for that question. The the Congress years ago implemented this amicus process by which the court can reach out by what the Congress described as novel questions to get the assistance of essentially a third party view separate from the government that has been relatively underutilized. And as far as I know, there's no indication it's ever been used in an individual case where the FIS court says, can you look at this application? And what we know is that when we actually put those applications under a spotlight, which is relatively rare?

As the, as the chair mentioned out of, I think 29 cases reviewed 25 of them were in error. So there's obviously a need for some additional viewpoint. I don't think that's going to be achieved with, with any amicus cure eye. I think that what you really need is this sort of concept of a special advocate, a very formal office that has the ability among other things to bring a case to the appellate FISA court to, to say that there's a problem here that you should reveal or review.I think that would be very useful to have an actual privacy advocate with security advocacy. If you're going to have a secret court, let's make sure both are represented. Thank you, Professor Charley and Mr Chairman, I yield back.

>>19181817

Fry:Mr Schaerr, real briefly to wrap up. I'm also concerned that even if we fix this, that the administration, a future administration would just end around this by virtue of executive orders. So how do we deal with FISA in reforming FISA? When, when an administration could just go around it? What, what would you suggest in that, in that sphere? Gentlemen, time, you may answer the question.

Schaerr: I think the short answer is two words. Any statute needs to make clear that whatever Congress specifies as an appropriate search has to be the exclusive means of obtaining the information that's covered. And that, and if you're a lawyer sitting at the White House or the Justice Department, you feel an obligation to be sure that the president that you serve takes care that the laws be faithfully executed. And if that, and if it's clear in the law that there's a, there's one exclusive way of getting the information at issue, you're gonna feel some obligation to be sure that your boss proceeds in that way. But if there's a statutory vacuum, that's where the problems arise