Josh Hawley and Adam Schiff Ask Tough Questions on Government Surveillance

Senators Josh Hawley (Left) and Adam Schiff (Right)

​The recent Senate Judiciary Committee hearing on the “review and reform” of the Foreign Intelligence Surveillance Act (FISA) yielded some fireworks and surprises that herald a robust and rowdy debate to come.

One FISA authority, Section 702, is due to sunset in April. As the Section 702 renewal debate heats up, that authority – enacted by Congress to enable spying on foreign targets on foreign soil without the need for a warrant or court order – will come under intense scrutiny for being used by the government in recent years to warrantlessly access millions of Americans’ private communications.

But a host of other surveillance authorities will also be debated. Liza Goitein of the Brennan Center for Justice told the committee:

“Section 702 is part of an ecosystem of often overlapping surveillance authorities, and when one avenue is closed off, the government can often turn to another or exploit gaps in that network to conduct surveillance with no statutory authority at all.”

One of these gaps is the “data broker loophole.” This is the routine practice of multiple federal law enforcement and intelligence agencies – including the FBI, the IRS, and the Department of Homeland Security – purchasing Americans’ private digital data from data brokers. Once purchased, agencies assert a right to examine Americans’ data without a warrant.

Adam Schiff’s Tough Questions About the Data Broker Loophole

In the hearing, Sen. Adam Schiff (D-CA) asked Goitein (see the 1:30 mark) about how “law enforcement and intelligence agencies might circumvent the requirements of the Fourth Amendment by acquiring information from third-party data brokers.”

Sen. Schiff highlighted the disingenuousness of the intelligence community and its workaround for the Electronic Communications Privacy Act, which prohibits direct sales of Americans’ personal data by telecoms to government agencies. But telecoms are allowed sell Americans’ personal information to data brokers for commercial purposes. Federal agencies exploit this loophole by claiming that there is nothing to prevent them from also purchasing Americans’ data from those brokers.

Liza Goitein made it clear that such “gaps” in the surveillance “ecosystem” should be very much a part of the Section 702 debate. “And the gap I am most worried about is this data broker loophole. Federal agencies are buying their way around constitutional and statutory requirements on a routine basis.”

Sen. Josh Hawley took a different tack, focusing on a contradiction in the government’s lenient definition of what qualifies as a search of an American’s communication.

Josh Hawley Schools Surveillance Advocate

“You said that Section 702 cannot be used to target Americans,” Sen. Josh Hawley (R-MO) (see the 1:27 mark) said to Adam Klein, Director of the Strauss Center at the University of Texas at Austin. “But that’s cold comfort, isn’t it” he said, “to those subject to 278,000 improper searches – United States persons that we were talking about – in 2022 alone?”

“I mean, sure, the statute doesn’t permit them to be targeted, but when they have their personal information directly queried or improperly searched, what’s the difference?”

Klein responded that Americans should take comfort from the fact that Section 702 is meant to target foreigners overseas, not Americans.

Hawley fired back:

“As someone who had his cellphone tapped, improperly, by the United States government, by the way, why would I feel any better if I am told, ‘the U.S. government improperly queried your personal information … but don’t worry, they weren’t going after you, in the first instance. They just happened to have all of your stuff and then they look into them because there are no effective constraints on them. Why is that a good thing?”

Klein pivoted to the issue of surveillance of Members of Congress, whom he said had “a heightened expectation of safeguards in this area.”

Hawley cut him off to ask why this expectation doesn’t also protect journalists or Americans who merely travel overseas or have family overseas. Hawley said the government effectively says, “Oh, don’t worry, you weren’t targeted. I mean you were effectively targeted.”

Sen. Hawley highlighted the contradiction in how the search of an American person’s data is not treated as a separate Fourth Amendment event. On one hand, Hawley said, the government promises not to target Americans. On the other hand, it searches Americans’ data.

“You can’t have it both ways,” Sen. Hawley said, adding, “That looks an awful lot like a search and seizure under Fourth Amendment.”
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When Sens. Hawley and Schiff – at opposite ends of the political spectrum – pose such tough questions, it is clear that the emerging bipartisan surveillance debate in Congress is going to heat up.

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