Thread by @NoahChauvin

🚨Happening now: The House Rules committee considers the Reforming Intelligence and Securing America Act, a bill to reauthorize FISA Section 702.

I'll share thoughts on the hearing below, and you can watch it here:

My @BrennanCenter colleague @LizaGoitein and I have a recent piece in @JustSecurity explaining why RISAA is not a reform bill, and the changes that are needed to protect Americans' privacy and civil liberties. You can read that piece here:

justsecurity.org/94322/section-…

The @BrennanCenter also has a one-pager on RISAA, which you can find here:

brennancenter.org/our-work/resea…

@BrennanCenter And we have another one-pager with our partners @EPICprivacy and @FreedomWorks assessing the inadequacy of RISAA's "reforms," which would codify the unacceptable status quo:

brennancenter.org/our-work/resea…

@Jim_Jordan starts by highlighting that in a one-year period the FBI violated the rules governing searches of FISA databases 278,000 times, and notes that RISAA, on its own, would do nothing to prevent the worst abuses.

@Jim_Jordan He notes that he and @RepJerryNadler were before the committee two months ago. What he doesn't mention: @RepMikeTurner and @jahimes weren't there, because they backed out of a deal to bring a similar bill to the floor:

brennancenter.org/our-work/analy…

@Jim_Jordan @Jim_Jordan closes by calling for a warrant before the government searches for Americans' private communications. Says base bill reforms won't prevent abuses. Too right!

@RepJerryNadler says he cannot support the reauthorization of Section 702 without serious reforms. Plugs the House Judiciary Committee bill, notes that it passed the fractious committee 35-2.

@RepJerryNadler Rep. Nadler highlights that a warrant requirement would safeguard Americans' civil liberties, without compromising intelligence agencies' ability to protect national security. He's right:

brennancenter.org/our-work/analy…

@RepMikeTurner claims that Congress is coming down to the wire for reauthorizing Section 702 because of the need to carefully rein in the intel agencies. Pretty shocking claim, given he personally killed a deal that would have led to a vote in February:

wired.com/story/section-…

(By the way, his bill doesn't contain "real reforms," no matter what he says.)

brennancenter.org/our-work/resea…

@RepMikeTurner claims there's no warrantless searches of Americans' data under FISA. That's a blatant mischaracterization. Americans can't be *targets* of warrantless surveillance. But our communications are "inevitably" captured by this surveillance.

Unbelievable how blatant a lie this is from Rep. Turner. @jahimes looks visibly uncomfortable. He should--Rep. Turner is being incredibly dishonest.

@jahimes now says that Section 702 is a critical national security tool. But that's a non-sequitur--the real question is whether reforms to protect Americans' privacy would compromise that value. They wouldn't:

brennancenter.org/our-work/analy…

@jahimes Rep. Himes now claiming that the FBI's internal reforms have improved things. Doesn't mention that the FBI still performs thousands of baseless searches for Americans every year, including for a U.S. Senator, a state senator, and a state court judge *after* the rules were enacted

@jahimes Also touts the prohibition on "evidence-of-a-crime-only" searches. In 2022, the FBI performed 204,090 backdoor searches for Americans' private communications. This change would have stopped them from accessing those comms in only *two* instances.

Rep. Himes now touting "defensive" queries. Some of the most egregious abuses of backdoor searches--for BLM protesters, members of Congress, and 19,000 congressional donors--were ostensibly "defensive."

@RepMikeTurner says Section 702 is about foreign intelligence surveillance of non-Americans abroad. Which is true--but obviously incomplete. (If surveilling Americans wasn't an important part of the program, he wouldn't oppose a warrant requirement so vociferously.)

@Jim_Jordan swats this down pretty quickly. Rightly notes that the question is not about the collection of information under 702, but about searching Section 702 databases for Americans' private communications.

@RepMikeTurner emphasizing that he doesn't want the government to have to get a warrant to search "Hamas's data." Of course, he thinks that peaceful protesters in the U.S. are Hamas, so we probably shouldn't trust him on this:

wired.com/story/hpsci-us…

@RepJerryNadler very patiently explaining what the warrant requirement he and @Jim_Jordan support would do. Rules committee members have to break in to stop @RepMikeTurner from cutting him off.

@RepThomasMassie is up now with questions. Expect these to be strongly in favor of surveillance reforms.

@RepThomasMassie His questions right now are focusing on the Crossfire Hurricane debacle.

@RepThomasMassie Now asking Rep. Turner about who Section 702 surveillance targets. Drilling down on Turner's mischaracterization that surveillance targets only terrorists. (Many of them are people who are associated with foreign governments--and who Americans contact for innocent reasons.)

@jahimes claiming that there are meaningful restrictions on the targets of 702 surveillance. The truth is that under FISA's definitions, virtually any non-American could be a lawful target for surveillance. The more targets, the more likely Americans' communications are captured.

@RepMikeTurner making a false comparison between Section 702 and the "incidental overhear" doctrine. But Section 702 has no individualized judicial review at any point--which is why a post hoc warrant requirement is so important!

This point also ignores recent developments in Fourth Amendment caselaw, which absolutely do restrict the ability of the government to search through information it's lawfully seized without getting a warrant justifying the search.

CC: @OrinKerr

washingtonpost.com/news/volokh-co…

@RepThomasMassie now drilling down on the intentional abuses of the Section 702 database. Reminder, those included people searching for family members, colleagues, potential tenants, and people they met on online dating sites.

(By the way, the government says it should be allowed to govern itself--but as far as the public is aware, nobody has ever been fired for these abuses.)

@RepThomasMassie now asking @RepMikeTurner about what standard would be needed to search for someone appearing at a protest about the treatment of Palestinians. Asks why not require a warrant for those searches.

It's a good question, especially given Turner's claim that 702 is needed to allow warrantless searches for... pro-Palestinian protesters. (At the hearing, he's no back-pedaling, saying that merely appearing at a protest shouldn't subject you to a search.)

wired.com/story/hpsci-us…

@RepThomasMassie asking the witnesses whether Americans have a Fourth Amendment right against warrantless backdoor searches. @RepMikeTurner says, essentially, no, protections are only statutory.

@RepThomasMassie @RepMikeTurner @RepMikeTurner claiming that the FISA Court would need 2,000 new judges to assess backdoor search warrants. That's a massive over-estimate, especially given the exceptions for emergencies, permission, and cybersecurity searches in the warrant requirement.

@RepThomasMassie now drilling down on the special protections RISAA creates for members of Congress--protections not available to regular Americans.

Telling: @RepMikeTurner just referred to policies "we're" putting in place in reference to internal changes at the FBI. That he sees himself as part of what the FBI, rather than as a member of a co-equal branch with oversight responsibility, tells you all you need to know.

@RepMikeTurner either doesn't know what's in his own bill, or he's lying about it. Claims the bill doesn't have special protections for members of Congress. There's no question about it: it does.

Members get notified when they are searched by the FBI, and in certain circumstances, the FBI has to ask their permission before running a search. You and I? We'll never know--let alone be asked permission.

@RepThomasMassie now asking @RepMikeTurner how his amendments would expand FISA. @RepMikeTurner, in what is now a familiar pattern, lies, and claims they wouldn't. Rep. Massie not having it.

@RepThomasMassie @RepMikeTurner @RepMikeTurner tells @RepThomasMassie that there's no expansion of 702 to bring in WiFi providers. *Sigh* That's another lie:

zwillgen.com/law-enforcemen…

@RepMikeTurner and @jahimes now pooh-poohing concerns that RISAA could reauthorize Section 702 permanently. As @LizaGoitein has explained, those are serious concerns. If this is enacted, you can bet intel officials will say there's no sunset.

https://twitter.com/LizaGoitein/status/1777735457939308919

@Jim_Jordan: "The expansion is just that: an expansion." Says when you expand who you're surveilling outside the United States, you expand the Americans whose communications will be captured. Precisely.

There's some talk of using Section 702 to target fentanyl traffickers. To be clear, the government is already doing this. And there's no indication that a warrant requirement for backdoor searches would interfere with those efforts:

thehill.com/opinion/crimin…

@RepMGS is now up. Asking clarifying questions to @RepMikeTurner about some of the things he's said during the hearing. I can understand her confusion--not clear how well he knows this bill.

Good colloquy between @RepMGS and @RepJerryNadler, pointing out that due process and Fourth Amendment protections are necessary precisely *because* they make it harder for the government to violate people's civil rights.

@RepRalphNorman now up. Wants to know about the special protections for members of Congress that are in RISAA.

@RepRalphNorman (Side note: Members keep calling this a "notification" requirement. Don't forget that in certain circumstances, the FBI also has to get members' *permission* to perform searches.)

@RepRalphNorman @RepRalphNorman now asking about what penalties there are for people who violate the rules governing backdoor searches. Worth noting that the FBI says that none of the previous abuses have risen to the level that would be punished under these new punishments.

@chiproytx now running through the developments in Congress over the last six months that got us to this point. For more on this, see this:

brennancenter.org/our-work/analy…

@chiproytx highlighting that this bill was designed to prevent a vote on @WarrenDavidson's amendment to prohibit intelligence and law enforcement agencies from purchasing Americans' sensitive information from commercial data brokers.

@chiproytx now highlighting the expansiveness of the HPSCI amendment to expand FISA's definition of foreign intelligence to include illegal narcotics trafficking; notes that it could sweep in the manufacturing of a huge number of precursor chemicals with lawful uses.

@chiproytx For example, he says, sudafed is used in the manufacturing of meth. Grilling Rep. Turner on why sudafed manufacturing wouldn't fall within the ambit of this expansion. Rep. Turner doesn't have an answer (because likely would--and that's certainly how the gov't would read it).

@chiproytx @chiproytx now asking about the HPSCI amendment that dramatically expands what businesses could be compelled to provide surveillance assistance to the government. I trust @MJZwills on this much more than I trust @RepMikeTurner:

zwillgen.com/law-enforcemen…

@RepTeresaLF now highlighting that surveillance reform is not a partisan issue. She's right--Americans overwhelmingly want surveillance reforms, recent polling shows:

s3.amazonaws.com/demandprogress…

Alright, that's it for questioning of witnesses. Will report back on how the committee ends up voting.