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.