If you are ever a witness before a Congressional committee, the trick to surviving a contentious hearing is to run out the clock with smooth talking. Each committee member only has five minutes to ask questions. An expert witness will often respond to a precise and penetrating question by taking up minutes with a Wikipedia-level recitation of a law or process, wrapped within pleasing-sounding banalities and blandishments.
 
Even within time constrictions in facing a polished witness, Rep. Zoe Lofgren (D-CA), long-time watcher of the watchers, managed to challenge the Department of Justice on Section 702 of the Foreign Intelligence Surveillance Act (FISA) in the recent House Judiciary Committee hearing. Rep. Lofgren refused to be brushed off (29 minutes mark) by the Department of Justice’s top national security official, Assistant Attorney General Matthew G. Olsen, concerning the FBI’s use of Section 702 information – collected to catch foreign terrorists and spies – against Americans.
 
Rep. Lofgren began by noting that FISA Court Judge James E. Boasberg had found that the FBI improperly searched Americans’ personal information collected without a warrant. Some of these were run-of-the-mill criminal investigations involving healthcare fraud, bribery, and other purported crimes unrelated to national security.
 
Rep. Lofgren added that in Dec. 2020 to Nov. 2021, the FBI searched the personal identifiers of known Americans in 702 data some 3.4 million times. This was triple the number from the previous year. As PPSA has reported, that amounts to more than 9,300 searches by the personal identifiers of Americans every day.
 
Rep. Lofgren noted that when Olsen went before the Senate Intelligence Committee for his confirmation, he pledged that “restoring and maintaining trust in the FISA process was a critical priority.” She asked him what he has done since to prevent warrantless, improper, backdoor searches of Americans’ data conducted under Section 702?
 
After taking time to give a topline description of the law, Olsen admitted that the “issues you cite are ones of concern” and promised to improve FBI compliance with training and by upgrading FBI computer systems. “We are looking forward to improving the compliance record of the Department of Justice and the FBI in regard to Section 702,” Olsen said, “and I can assure you it is a priority.”
 
Rep. Lofgren had a sharp reply.
 
“We have had reassurances over the years and yet the performance continues to be poor, and it has been poor under both Republican and Democratic Administrations,” she said. “We have considered imposing a warrant requirement for queries of known Americans … probably a necessity unless we can get some further, definitive control of the warrantless search of Americans in the 702 database.”
 
Rep. Lofgren added that using Section 702 to conduct warrantless searches on Americans is “improper and yet it continues.” Olsen replied that Section 702 permits the creation of a database of non-U.S. persons overseas, and that when the FBI searches, it does so to simply find “connections,” not to target Americans.
 
Rep. Lofgren’s retort was sharp: “That is contrary to the report that we got from ODNI and from the FISA Court.”
 
As Section 702 faces reauthorization next year, civil libertarians should continue to press Rep. Lofgren’s questions and urge Congress to consider an explicit warrant requirement when queries target Americans.

The Fourth Amendment grants us protection against intrusive surveillance. Conversely, the First Amendment grants us the right to observe public actions by public authorities. The emergence of the cellphone demonstrates the integral nature of these two sets of rights. Courts are increasingly interpreting First and Fourth Amendments regarding cellphones to the advantage of citizens over government, a victory for civil liberties in law if not always in practice.
 
The U.S. Supreme Court in Riley v. California (2014) held that the police violate the Fourth Amendment when they try to gain warrantless access to the voluminous personal information inside our cellphones. On the other hand, the First, Third, Fifth, Seventh, Ninth, and Eleventh Circuit Courts of Appeal have upheld the right to record police officers going about their public duty, a right recognized as critical to the protections of the First Amendment.
 
Last summer, PPSA reported on the continued holdout stance by the U.S. Tenth Circuit Court of Appeals against the right to film police officers. Despite the weight of six other Courts of Appeal, the Tenth Circuit continued to insist ​​that there was no “clearly established” right. In a recent ruling, however, the Tenth Circuit came close to fully joining its judicial peers by dropping its Draconian opposition to the right to record in the case of a self-identified journalist and blogger. On July 11th, the court ruled in Irizarry v. Yehia in favor of a right to record.
 
The incident in question occurred early in the morning of May 26, 2019, when blogger Abade Irizarry began filming a DUI traffic stop in Colorado. According to the ruling of the court, “Officer Ahmed Yehia arrived on the scene and stood in front of Mr. Irizarry, obstructing his filming of the stop. When Mr. Irizarry and a fellow journalist objected, Officer Yehia shined a flashlight into Mr. Irizarry's camera and then drove his police cruiser at the two journalists.”
 
PPSA welcomes the court’s adjustment on the right to record police activity, fundamental to the First Amendment and to Americans’ ability to protect themselves in court against potential police misconduct. The Tenth Circuit specifically cited the rulings of other Courts of Appeal, indicating that the right to record may be gaining traction, especially amid the public backlash against police misconduct in the wake of the killing of George Floyd.
 
PPSA urges courts to interpret the First and Fourth Amendments in ways that reinforce these rights. They are not in competition. There is – and should be –
a lopsidedness in the law. Citizens are free to film the police on official duty. But the police must obtain a warrant to search our cellphones.
 
In a free society that holds authority accountable, that is as it should be.