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tv   Hearing on Curbing Justice Dept.s Power to Access Private Communications  CSPAN  July 1, 2021 4:00pm-7:27pm EDT

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having his fifth and sixth amendment rights the right to an attorney and select marked cases sunday night at 9:45 p.m. eastern on c-span, online is cspan. ernest on the c-span radio app. ... ... ♪♪ ♪♪ >> legal experts testified about the justice department's
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practice of accessing data of journalists and elected leaders in private citizens. house judiciary committee considering legislation to rain and prosecutor overreach at d.o.j. this is three hours and 20 minutes.s. >> this can be given public streaming, five, four, three, two, one. the house committee and judiciary come to order. without objection from of the chairs authorized to declare recess of the committee at t any time. we welcome everyone to today's hearing on secrecy order prosecuting potential legislative response to the prosecutorial abuses of power. before we begin, i like to remind them to establish e-mail dedicated to other written material members may want to offer as part of our hearing today.
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if you'd like to submit materials, send them to the e-mail addressed previously district to your offices and we will circulate materials to members and staff asci quickly s we can. for those inn the room, the attending physician is individuals fully vaccinated recovered 19, do not need to wear a mask or maintain social distance. fully vaccinated individuals may choose to continue based on the specific risk of consideration. if you're not fully vaccinated, your position requires you to wear your mask and maintained 6 feet of social distancing. finally i asked off campus in person hearing remotely from mute their microphones when not speaking. this will help feedback and other technical issues. i recognizeze my cell for an opening statement. may 7, 2021, washington post
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reported trump administration secretly obtained phone records and enough records of r certain reporters. later reports showed the department made a similar attempts to accesspt communications of cnn reporter multiple journalists at the new york times. june 10, it was reported trump administration also requested records of multiple members of congress, family members and congressional staff. june 13, the new york times reported trumpim administration saw similar records from accounts associated with former white house counsel, john mcgann. even if our the end of the story, the department had done was targeted this reporters these members of congress one time with reason to be granting extraordinary protection from the
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communications members of congress in this staff, these reports don't constitute isolated incident. the department of justice has a long history of targeting reporters and misusing surveillance authorities tond bypass classic basic constitutional protections. president nixon justice department tractors harvest the publication of the pentagon. presidentonrt bush justice department went after the reporters to expose and essays expensive warrantless surveillance program. president obama's justice department charged a reporter, co-conspirator violation of the espionage act. president trump's justice a department refused to have targeted reporters and members focused on investigating russia'sti interference into 226 election. now we know president binds justice department sought to renew at least some secrecy orders associated with this.
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in each of these cases the department took advantage of outdated policies to make secrecy a norm, not the exception to the rule. these recent cases. to target journalists democratic members of the house of congress and former white house counsel. we have no immediate way of knowing how big the problem is because each case is a company by d.o.j. requested judge imposed order that prevents anybody from talking about them for years. asking to explain these cases but this hearing is not about that investigation. at least not directly. today the committee is going to focus on a related policy problem that struggles membered on both sides of the aisle. technology outpacing when it comes to government demanding data from third-party provider and gag orders are coming the demand have become practice in
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cases with timely notice. the 21st century, federal prosecutors no longer need to show up to your office, they just need to rate your virtual office. they do not have to d subpoena directly, they just need to go to the cloud. rather than providing americans meaningful notice that private electronic records are being accessed in criminal investigation department hides behind the ability to ask third-party directors directly. they deny american citizens, companies and institutions their basic day in court instead they gather their evidence entirely secret. just because it's easier for prosecutors seek sweeping amounts of data service providers, it does not mean they should beea about to do so. this committee is long recognizing as department need to investigate unauthorized exposure of classified information and support those
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investigations whenever properly done. our response will be to come back does not have this authority to engage in sweeping surveillance of american citizens , businesses, newsrooms and universities. it's not tolerable after 9/11 is anot acceptable now. recent reporting is that we cannot trust the department to police itself. it'sf. imperative the committee fulfill its role and ensure loss keep pace with rapidly changing technology. we need to guard against future overreach of prosecutors implemented reform now. i think witnesses for being here today and look forward to hearing ideas and what we should consider moving forward and i look forward to working with mr. jordan, republican callings on this matter. i recognize the judiciary committee, judgment from ohio, mr. dryden for his opening
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statement. >> thank you, mr. thomas. in the u.s., the government should not spy on its citizens, plain and simple. cases went surveillance on american is necessary to prosecute crimes, it should be a high for the government getting approval to do so. the church committee investigation into the fbi's actions in the 20th century provided a roadmap righting the wrongs of domestic serenity and apparatus of checks and balances set up to uphold government accountable when it sought to invade the privacy of its citizens but this process is now in need of reform. laws and guidelines are easily sorted our system of subpoenas and national security letters and other tools the government disposal must be brought in line with constitutional considerations for basic due process. we tried to make progress in recent years and we have much more work to do.
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usa freedom act made improvement to the patriot act but many deficiencies remain like the simple fact that the obama fbi spy on president trump's's campaign, the dossier at the time to surveyor activities. further improvements are the overall and some think the committee should take up. more recently, the other night, his belief at the end as i was monitoring communications are the nsa said in a carefully worded statement, i'd encourage you all to t read that, mr. carlson was not the target, not a target, they didn't deny that they reviewed communications. additionally, reforms to the electronic medications privacy act passed the house in recent congress was only in the u.s. senate. most colleagues know is the cornerstone law governing americans privacy with respect to e-mail and other electronic
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data. the problem is the law was written in 1986 and didn't contemplate, not even closeem to our digital age today. the result has been a part of a system of demands from law enforcement to technology companies and a constitutionalist dubious. this uncertainty allows data to be swept upp by law enforcement agencies about words. another area we can work together is protecting the public's right tos know. informed public is critical for well-functioning democracy with the department of justice, journalists and fermenting skateboarders people cannot speak out about the government's actions from a democratic values are undermined. bipartisan bills to protect journalists sources, legislation regiment offered by vice president pence when he was member of the house, we should revisit this and measures related to gag orders the public can be as informed as possible and should be incredibly rare in the u.s. that people are not allowed to speak freely about the government's actions in the
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public to this discussion and i was like the chairman said, i'm optimistic about the opportunity to work with colleagues on the other side and make an improvement in all theseng areas and i get back. >> thank you, mr. jordan. all other opening statements will be included in the record. i will not introduce today's ... executive vice president and chief legal officer of the corporation. prior to joining hurst, berg served as vice president and chief legal counsel at cnn when overseeing legal matters related to news and other programming from cnn networks. this week she was a deputy general counsel of the new york daily news clerk the judge shall he rest of tooth your figure she holds way from columbia law school. corporate vice president for custom security and trust microsoft corporation among
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department and responsibilities responding to law enforcement requests for access to data, managing microsoft government players security compliance. joint in 1995, several leadership roles to the coupling legal affairs. he received an ap from stanford university and a jd from university ofhe washington schol ofoo law. jonathan turley, jp and shapiro professional law at the george washington university law school. after a previous position teaching at made possible from a professor turley joined gw lawl, faculty in 1990.
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1998, he became the youngest chair professor in the school's history. in addition to serving counsel a number of significant cases, he's written numerous articles for a variety of journals and natural publication. a ba from the university off chicago jd from northwestern university school of law. lynn oberlander is of counsel with the law firm of ballard llp. she previously served as in-house counsel, numerous broadcast publishers and digital platforms. senior vice president and associate general counsel to media at the efficient communication serving as executive vice president general counsel at the city are medial group. previously general counsel for the media operations at media works and before that, she was general counsel of the new yorker where she also wrote new media law topics. earlier in her career sherl word at nbc. oberlander is here from gail
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anniversary and columbia law school. we welcome all distinguished witnesses and thank them for participating today. i'll begin by swearing in witnesses and witnesses please rise and raise your right hand. i asked witnesses turn on audio and be sure i can see your face and raise your right hand. you swear or affirm honor penalty of perjury the testimony you are about to give is true and correct some of the best of your knowledge information and beliefs so help you god? >> let the record show witnesses demand, answered in the yaffirmative. please note each of you have written statements, they will be entered into record in its entirety. i ask you summarize your testimony in five minutes. if you stay within the time, there's a time under's table.
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when the light switches green to yellow, you have onene minute to complete your testimony. when the light turns red, it signals five minutes have expired. when this is appearing virtually, there is a timer on your screen to help you keep track of time. you may begin. >> thank you. chairman, ranking member jordan, members of the committee, good morning. i'm executive vice president from the chief legal officer of the first corporation. i'm pleased to appear before you today to discuss thiseon criticl issue. this is not a partisan political matter not a concern limited to the past for the congress. it's an american issue on how we approach, it will tell a lot a kind of country we want to be. i want to acknowledge this, because a natural tension between prosecutors interest in exercising investigative power and protecting their constitutional rights. these are difficult interests of
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balance but that is the key, they must be balanced fairly consistently, constitutional systems require due process, all citizens through the application of proper procedures to protect the middle right with rare exceptions, peace matters should not bexc decided in secret. recent revelations about the d.o.j.'s use of investigative powers, secretly obtained citizens communications record directly from telephone and e-mail providers, of great concern to every american. we all rely on these services in our daily lives. what we do not yet know the details of how and why the d.o.j. went about this secret collection, enough submerged steps congress should consider legislation to ensure appropriate balancing and adequate protection of individual rights for the future.. legislative protections for
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irights as it did with the 1980 privacy protection act, ppa established procedures for news organizations to challenge search warrant which were planned and executed in secret. congress should do more, especially third-party communication companies are concerned. that is principles unaddressed 2021. the end of my testimony to share my views on what should be central components of any legislative reform iniv this ar. my submission provides release necessary pieces but i will summarize them here. the single most important step in one steeped in our shared american values is to recognize and.of due process and procedure safeguard. this could be done by codifying something like d.o.j. subpoena guidelines, they lay out procedures to protect fundamental press rights from investigative power.
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this is a good baseline for legislation to address today's problems but the guidelines are just a start a agreement must go forward. that is a critical second step, to recognize necessary role of article three judges and bouncing competing interests. his d.o.j. should not be prosecuted judge and jury when it comes to citizens fundamental rights. the department simply hasas inherent conflict. a third step is the establishment of procedures specifically recognize the realities of modern communication technology. the same protections must apply whether the information is in office file or cloud server across the country or i the word managed by google, microsoft, apple or verizon. these are not theoretical issues, they are practical issues. we must extend procedure protections records stored by these companies or else we may never know when records are
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seized by thehe government. presently, protection of our constitutional interests are in the hands of mittleman with no incentive to battle with the government on behalf of customers or citizens. to the contrary in my experience, some communication companies historically have seen it is their responsibility to assist the government in obtaining what it wants. finally legislation should be clear, there is a presumption against secrecy orders and government must bear the burden of overcoming that. the pentagon case decided exactly 50 yearson ago today, it reminds us these restraints are rarely, if ever constitutionally permissible even when the government invokes national security concerns during wartime. this is a constitutional assumption against judge orders must be judged. i'd like to close my testimony by reiterating my belief are concerned about prosecutorial investigative o power can be
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addressed in a way that should not be controversial or interfere with legitimate government work. instead, i believe can all agree many of these concerns can be addressed with clear procedures that establish presumption of openness but notice and opportunity to be heard is the norm and expectation. his interest this is about the bouncing of constitutional interest that must occur in properly decided by great and independent judiciary. i look forward to our discussion today and thank you all for the opportunity to participate in this hearing. >> thank you for your testimony. >> ranking member jordan and members of the committee, my team is responsible for responding to government data demands so i appreciate opportunity to testify on the need for legislative reform on secrecy orders. while recent news about secrecy secret investigations is
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shocking, most shocking is how routine secrecy orders have become one law enforcementnt target and americans e-mail, text messages or other sensitive data stored in the cloud. this abuseto is not new, it's ao not unique from one administration is not limited to investigations targeting the media and congress. secrecy owners are too often used for routine investigations based on an assertion the government met statutory burdens. the justice department owny template does not even require facts justifying the need for secrecy. instead, the temperament assert disclosures would seriously jeopardize the investigation for a variety of reasons. it's no surprise then fact throughout the obamais trump and biden administrations, up to one third of all legal demands we received from federal law enforcement includes secrecy orders up to 3500 interest one
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year. these are just demands on microsoftt. as demand likely served on facebook, apple, google, twitter and others in a frightening sense of the mountain of secrecy orders used byig federal law enforcement in recent years. this has been pointed out, this is different than investigations conducted before the advent cloud computing. if law enforcement wanted access to data on a computer or network in your home or office, fit have to obtain serve a warrant to enter your promise and collect evidence. if law enforcement wanted to secretly search your physical office, it had to meet heightened standards required to get a so-called sneak and peek once. however today if law enforcement want to secretly search your virtual office in the cloud, they serve a boilerplate warrant into secrecy order on cloud provider that prevents notice to you.
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microsoft scrutinizes each demand we received to protect our customers interest. we often challenge unnecessary secrecy orders through negotiation or litigation in court. some examples, just examples of the recent abuse we've seen secrecyom orders when the accout holder was a victim, not a target of the investigation or when the investigationre target run account at a reputable company or university secrecy order bars notice to anyone in the organization or for the government secretly demanded records to evade an ongoing discovery dispute. while microsoft long successfully challenged the secrecy orders in court, litigation is no substitute for legislative reform we've worked with other technology companies and have reforms we've proposed that permit secrecye orders for rare cases where they are necessary.
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we have four primary recommendations. first, congress should and indefinite secrecy orders for good. we suggest theyge last for 90 ds with a 90 day extension proven necessary. second, congress must and rubberstamp secrecy orders and require judges engage in aag written analysis of relevant facts. third, courts should apply scrutiny when issuing an order instead of only after it's been challenged. finally, congress should codify a statutory right, authorizing cloudht providers to challenge harmful secrecy orders in order to protect theirre users rights. let me be clear, secrecy orders are sometimes necessary such as to investigate cyber attacks, to keep our children safe from online exploitation or prevent terrorist attacks. we don't suggest that the government must meet an impossible standard. we are asking for a meaningful one.
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notice the target is an important safeguard for our constitutional rights. reform is necessary to protect fundamental values that are the bedrock of our democracy. without reform, abuses will continue to occur and they will occur the dark. thank you for your time and attention. >> thank you for your testimony. professor turley, you mayou beg. >> thank you, mr. chairman, members of the judiciary committee, thank you for inviting me to speak today the targeting of reporters and members of congress in recent week investigation, serious matter that cutsma across areasf constitutionalre statutory law, she cut across partisan lines to unify the public congress seeking answers difficult and troubling questions. today's hearing occurs on the s50th anniversary of the new york times publication of the
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pentagon papers, an act that triggered one of the most consequential legal battles in the history of this country, about the ultimately helped define the rights of free press. it also reminds us that drawing the line between national security and police press freedom continues to evade demarcation. fifteen years ago i testified before the house intelligence committee and calls again for the enactment of a federal shield law. it's a reminder of how this area remains dangerously defined and uncertain reporters, particularly with the growth of new technology that made a mockery of many of our protection. this is a difficult area because this compelling argument on both sides by the department of justice and by the media. "of struggling with what's often
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presented as a zero sum game and you can see that in the cases i discussed in my testimony so this is a serious matter, we don't know the facts but it has across and raises issues of separation of powers, free press and privacy. ii'd like to focus on where i ended 15 years ago, that is on the necessity of a federal shield walk but i will know note in my testimony, i believe six areas should be explored in light of these controversies. frankie, for those of us who advocated for the free press and free speech, this is what yogi bear meant when it was déjà vu all over again. we've seen this in the bush administration and obama administration and the trump administration we saw at the beginning of the biden administration, it is foolish to believe anything going to
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change. that i believe is thehe definitn of insanity, doing the same thing, expecting a different result. the fact is, we rely on self-regulation to the department of justice. they have notey met that burden. dave failed over and over again. it's not partisan, it cuts across parties in the administration, a record of failure that puts at risk of the most precious rights, one of the most essential might in our system, fattest the free press. the six areas i laid out food concerns over the authorization in this matter, what i call reverse engineering of leak investigations, gag orders, fishing in the crowd which is a major problem, national security letters and defining journalists but i would like this committee to begin and end, this should come as no surprise to the chairman and ranking member that
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i invoke james madison. madison said most famously, a popular government without popular information or means of acquiring it, a prologue to a far tragedy, knowledge will forever govern ignorance and people mean to be their own governors, they must arm themselves with the power that knowledge gives. it's the free press that gives us that knowledge, the free press that protects us most certainly from tierney. i want address what i have discussed but i will note this, stateea legislatures with slippy free press. sixteen states the district s of vicolumbia for the media, there are 24 states that have qualified privileges for the media. other states that don't have
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those have common law protection for the media. the act of 2017 is great platform supported by both parties t and each time we move back to enactment. i am critical aspects of the law even though i would take that in a heartbeat. to try to gain that protection for media but i note it could be strengthened with greater explanation of presumptions but i also believe it has to be rewritten of what constitutes the journalists, journalism has changed in this world. the definition in the law and journalistic and age is out of date. so i would suggest examining that. i would end with, i did 15 years ago and it this way, we cannot afford consequences of leaving for media exposed the way we have. w
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that will leave not just them ex post but it i will be as madison said, pro forma tragedy and we need to pass that law. >> missus oberlander, you may habegin. >> chairman napa, ranking member jordan and members of the m committee, thank you for inviting me to testify today. we have learned in the last few weeks the justice department has secretly sought e-mail and telephone records of eight journalists working for three media companies and what appears to be purposeful availing the department of law and their own guidelines. as a multimedia lawyer working in many newsrooms and hundreds of journalists, i can report theseha actions have have, and will continue to have a profound and disruptive effect from the ability of journalists practicing their craft and report stories of vital public importance to our democracy. by sending secret subpoenas to
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the service providers for the new york times, washington post and cnn and gagging recipients the department of justice performed a run around protections for the news media provided privacy protection act of 1980 and attorney general own news media guidelines. how does a pump directly to the media organizations or if they had been notified of the time of the issuance, media organizations would have been able to challenge them in court. instead, and even though prosecutors were seeking for publicrecords week investigation, the department of justice was able ecto convince the judge, at leat one of the cases that informed the journalists of the request would seriously jeopardize ongoing investigations by giving targets the opportunity to destroy or tamper with evidence. congress should now act to protect the rights of journalists and bring crucial information to the public. members of the judiciary committee should consider several legislative
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enhancements. the strongest and simplest way to protect the rights of journalists to report on thetot actions of government and the rights of the public to receive such reporting would be to pass legislation banning governmental inquiries intradermally horses. he said he would now strive to do. this would be the simplest response demonstrate the importance of free flow of information to the public. even in the absence of such a plan, there are other ways to improve protections for these process. independent judicial review of any prosecutorial attempt to access journalists materials is crucial inat ensuring stringent review that appropriately ways publics a interest newsgathering for the government'sat interesta source is essential to protecting importance s interest at stake here. while current attorney general guidelines are not perfect and crucially, not enforceable by journalists, they provide an excellent start looking to strengthen these protections. the guidelines recognized that
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freedom of the press can be no broader than freedom of members of the newss media to investigae and report the news. the subpoenas and search warrants are extraordinary measures, not standard practices. to this end, all processes may be issued with the approval of the attorney general or another senior official and only when the information sought is essential to a successful investigation after all reasonable attempts have been made to obtain information from alternative sourcesd negotiation with the effective members of the news media. these protections should be statutory all enacted. the government must provide notice to the news mediaia whatever information is sought, correctly taught from the media itself or service providers. it's an accident of technology that the government is able to bypass the affected journalists, the media company maintains its own servers, for example, it would be impossible to seek the record without notice. this is an opportunity for judicial review from o article
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three judge and challenge the government's purported rationales for seeking the information. department of justice believes prior notice and negotiation is impossible in certain cases, particularly where it turns grave harm to national security or investigation integrity. in such extremely limited cases, congress should consider legislatingg beauty candor and affirmative obligation to notify third-party providers seeking journalist interior and not hide request with a product request as it would be apparently the case for information about members of congress and their f staff. congress should consider requiring providential advocates to represent the media interest before the court considering application for the subpoena, court order or other process. this would not be unique from the usa freedom actri a from a special advocate proceedings before the visor finally, this moment present excellent opportunity pass a law that would codify protections for journalists mandate
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consistentst tests for when, if ever, the government or private individuals can seek journalists work product and confidential sources. the patchwork of shield laws and conflicting standards protection between state and federal courts leads to inconsistent results and prevent journalists from adequately informing their sources of risks they face forward with crucial information for public w importance. our government, the press protected by the first amendment, and essential work of our constitutional arrangement. congress can help press serve its vital role in our democracy. i urge you to do so. thank you. >> thank you. we will now proceed under the five minute rule of questions and i will recognize myself for five minutes. before i begin my question and without objection, i will place the following into record. a letter from i i over 20 sociey groups calling for reform,
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statements junior ceo and publisher of the washington post, the statement from senior vice president general counsel and corporate secretary of the associated press. the technological landscape exchanged dramatically since congress enacted hisng communications act in 1986. how is the government becoming more reliant on section 2703 electronic surveillance e orders thehe passage of thison communications act in 1986? >> the government has become increasingly lie on the secrecy order since that time and that has been largely the product of advancement of technology. at that time, the clock didn't exist the substantial extent to whicht citizens, organizations, corporations and society in general source private communications, corporate
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records the crowd, that didn't exist so today we have this world where access to the information at the application of secrecy orderon enables law enforcement tocr conduct investigation get access to citizens, organizations, corporations, records without notice to the organization or individual whose records are being obtained and thought is a dramatic shift in the way of law enforcement can and should conduct operations. >> what are some examples of cases in which you think the government not rely on these onorders but -- >> i would appoint the case, a series by corticosteroids for the government had a two party process to get information going through the court andey they didn't like the results they were getting so they turned
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around and went back to the service providers and talk records without any notice, that order is still sealed. we have no knowledge what the provider argued in court room, a perfect example of a relatively routine case the government was embarrassed about what happened in the grand jury and o bar came out the grand jury and if there's wasn't necessary, these constitutional protections and thee court balancing those and with notice to these reporters, way to proceede whether they won or lost the case under a constitutional scheme so there is an example where it was easier for the government to get what it wanted and got it acted in accordance with a process that's not dispensable in this country under our aversion to secrecy as representative jordan spoke about when he started with this
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proceeding. >> same question. >> and existing to the samples i described, let me offer a recent example, we received just yesterday i demand for access to data of a single employee a major american city, an investigation that has nothing to do with national n security d the gag order provides us from notifying anybody in thepr city, not it may or or city attorney and employee others has their information taken by the government and more importantly, we saw with this particular order, a new trend or example of a new trend, troubling trends we are observing which it wasn't just about that subpoena, it was a blanket order that purports to cover all subpoenas and warrants, every process in that entire investigation and case. all based on one boilerplate
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submission and artist -- our law enforcement agents work hard to do very important jobs but the laws that currently exist enables them to act this way out of expediency and convenient and fast by we need reform. >> recent reporting is true, gag orders prevent the council within the targeted media companies sharing any information about the request ol information. this dynamic strength this relationship too say nothing of its effect on the press. departments use of secrecy orders violate due process protection, why do you believe the department section 2703 secrecy orders in this way? >> i absolutely believe if violate due process, it creates incrediblele stress for the meda organizations and lawyers at
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issue here. in-house counsel who were aware of the requests but weren't allowed to tell supervisors or their journalists or even the newsgroup that these n requests were made. it puts them in an incredibly difficult position, as i'm sure many of you remember or you can imagine when you cannot tell your c client crucial informatin about what's being asked of them. the other bighe problem is that when you have these secret orders you can't negotiate them if the order had come through and people were allowed to know about it and they could go back and say even if you want this information which we don't think you should have, if you don't want this information. you don't, we want to make sure you're not getting other medications that may show or other product or confidential investigations so it makes it very difficult for in-house counsel and outside counsel to
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work effectively with the government and protect first amendment right. >> thank you, my time has expired. mr. jordan. >> we are on a roll, last week you brought big tech to heal, this week brings the department of justice to heal. my heart fluttered to think what might be our next committee. maybe we will continue bipartisan momentum. i believe the department of justice and intelligence committee shouldn't threaten or spy on members of congress, staff press for politics. president biden believes the same in response to questions from caleb collins, president biden admitted he would not alloww organization of his government against the press. chairman nadler agrees, chairman nadler stated, i'm quoting directly, congress must make it extraordinarily well, if not impossible for thedi department
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spy on congress for news media. we cannot rely on the department alone to make these changes. what i saw on the reports about members of congress and offices being targeted, i was the first and the only republican to say that that was improper. more of my colleagues should join me. it was easy to believe the department of justice would do that to the democrats, they threaten to do it to us. i seek unanimous consent to enter into the record fox news publication from september 27, rosenstein launched hostile attack in may against republicans over russia record. >> without objection. >> rosenstein threatened a member of republicanmb staff criminal process if he did not bend to what mr. rosenstein wanted at the time so it's not hard to believe. the most watched cable news host
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has been stating for the last several might that the nsa has been monitoring n communications and amazingly, nsa issued a statement that's so much, it's functioning in mission. let's review. june 20, 2021, tucker collison alleged the national security agency hasit been monitoring electronic communications and plans to leak them in an attempt show off the air. this allegation is untrue. which allegation? the statement continues. tucker carlson has ever been on intelligence target of the agency and nsa has never had any plans to try to take his program off the air. it continues but what's interesting is that there is no denial that they were monitoring tucker carlson even if he wasn't the target. we saw this with carter page donald trump in order to try to assess information from one
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person, utilizing authorities to go after someone else to ensnare their true target. they were going after democrat staff. i think it'snd the reason they were going after republican staff. that's right they were going after carter page and i think there's probably in tucker carlson's orbit that they were monitoring and no denial they caught up tucker carlson and by the way, there is no denial but there was a plan to leak information to try to in some way, embarrassed tucker carlson, the only denial is that they want expressly trying to get his show off the air. and it's not like the nsa has never lied to us. we were told that there was no collection of american data. it turns out the collection of american data and no one ever
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was held to account for that. professor, we cannot count on them to police themselves. it's my expectation that there here to be greater review so i am inviting you to continue this bipartisan -- join me in calling for inspector generalal investigation into any monitoring that the nsa or any other element of the intelligence community engagement relative to tucker carlson because these denials raise more questions than they provide answers.ue if democrats don't, when your members and your staff and it amplifies messages targeted, and we wouldte never see that. we would see déjà vu all over again. equally outraged when they target the people i like and the people i don't like.
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when they target the press i watch and the press i despised. last week we were on such a role my hope isy we can join together again on the justice just natively but specifically the call for inspector general investigation into these allegations. i yield back. >> the gentleman yields back. >> thank you, mr. chairman. and as i listen to these skilled and knowledgeable witnesses, it occurs to me one thing asked to provide additional protections to the press because of the amendment but it seems to me our real focus, not that the press doesn't need additional protection under shieldee laws e to be on the fourth amendment and once again, we are called to ask whether the fourth amendment is still alive in the digital
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age. the want requirements and the guarantees against unreasonable search and seizures, the foundational right and not just the press or members of congress, they are too everyss american and i do believe the situation we have here is an end run on the protections on the fourth amendment supposed to provide every american. if the information was on a person's desktop, a warrant have toul be issued, there wouldn't e a gag order, there would be notice and the fact that the information is stored in the crowd instead meaningless, the expectation of privacy on the part of the individual is that it is there and we need to revisit the whole scheme we have
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here about americans expectation privacy. when these laws were written, there was no cloud and we ought toht extend the fourth amendment protections to individuals data whenever there is expectation of privacy. i'd like to ask you about compelling cloud providers like microsoft to produce communicationni records, the communication act allows the government to compel c such data upon showing reasonable suspicion. do you think this standard is sufficient to protect the privacyct rights of individuals who have data stored in your cloud? >> no, standard is clearly not sufficient and why we recommend heightened standards we do recommend that the committee
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consider legislative reform. that standard has been turned into these boilerplate approaches wein discussed that enables law enforcement to simply assert a conclusion that secrecy order is necessary and as you said quite accurately, that denies the target of that investigation, any opportunity to get exercise on their fourth amendment rights because they don't know that their property is being taken and searched and seized. what we have done in our litigation is assert our first moment write to inform our customers. while some have recognized that we do have a first amendment right to inform customers and fats like we believe part of the reform should clarify that amendment right doesn't exist for cloud providers because there's some port that found the opposite, we need to ensure that citizens have the opportunity to exercise their fourth amendment
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rights and that requires heightened standard and requires specific findings of fact that i secrecy order is truly necessary under existing statutory factors records so that only in those limited instances where it is truly necessary in the national interest is a secrecy order applied and not 3500 times a year just to one cloud provider. >> right now, the entire burden of protecting fourth amendment rights falls upon the service provider. i have heard your testimony that microsoft is active protecting those rights but there are other providers that may not be active. the fact is, it's the individuals rights be challenged, they should have the opportunity to protect. i'd like to think, what happens when a court issues a secrecy
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order that later turns out to be unsupported in cap the government uses the information and get the request to bring criminal prosecution? can the defendant use secrecy orders as a basis for suppression? do you knowyo that? >> i would yield to, mr. turley to see if he has a specific analysis but i believe the answer is, there is no opportunity for the defendant to challenge evidence in that way under secrecy order under fourth amendment. >> the time of the gentle lady has expired. >> thank you, mr. chairman. thank you to help us important hearing and thank you to the witnesses for being here today i associate myself with basically everything that's been said here today, it's been remarkably
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agreeable which is pleasant and surprising so i hope we are together to bring clarity and rectification of these problems. my first question goes to ms. burton, this is for you. he said in your written reports, information in the storage been prodded from a file cabinet and this is reiterated by every witness of the government should have no greater secrecy interest to the case of ease of access. my question is, if you were the rj government, how would you respond to that? that is a bleakest statement that there is no greater -- just because it's easier to claim secrecy, there is no greater consequence, how would you respond if you work d.o.j. to that? >> if i were attorney general, i would want to see as possible as
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a citizen of the country, to balance all rights and needs and that's why we have judges and notice and that's why we should not be putting cloud providers effectively above theti constitution. as you say, microsoft takes effort in this regard the but not universally issue and i would tell you there's a lot of things we don't know right now. if i'm d.o.j., i don't want to be convicting people or bringing cases where i can't defend full measure of the evidence i put before a t court to give the rights to challenge back. i think thato is playing, shall we say, propyl in a bad way. but ion't disagree haven't heard basically from any of the witnesses, nor have we seen and practice over years that d.o.j. concerned with being a pristine good due process adherence and protecting the
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rights of everybody. you call it rated examples where they abuse their authority and this is in your shop 3500 times a year so we are led to believe this could be many thousands of times. you've given your set of prescriptions as well but why do youel think -- in a physical warrant or physical materials seized, it is 30 day percentage, why you think it should be 90 days for data? >> that is a good question and any reasonable time is acceptable to us and i think the technology industry, what we are trying to do is rein in what we have seen which are indefinite secrecy orders with no termination date. what we have seen d.o.j. formulated its policy in response to litigation we've
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filed in 2017, we have seen some of it decrease indefinite orders but we still get hundreds of those every year. the standard we see typically is a year end status far too long a time even when it is actually justified to have a secrecy order so ourec response would be there is a very small universe of truly justified secrecy orders, where the secrecy orders are truly justified and as long as 90 days might actually be acceptable. >> we have just about a a minute left and i would like each of you to respond. a each of you have talked about in one way or another, reliance on the courts as arbiters and yet they seem to be rubberstamping boilerplate language. i am concerned about what i view as necessary stick approach to
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d.o.j. or abuse. once an appropriate measure? irregular terminal case, physical evidence you will have exclusionary issues will come in, what happens here? what is the punitive measure that evolves to bad actors? will grope down the table. >> i certainly agree with you that the courts have not exactly covered themselves in glory. part of the problem is that these judges are getting thousands of these and they don't want to go into the weeds on these issues so you have a grand jury out of ed new york saying look, this is boilerplate, boilerplate over and over again and not saying anything. you will have to structure what a court has to find and what a
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court must establish in writing if we do anything. if you have togo establish standing and palate procedure with adversarial process, those are the things that will result in change. >> the judgments time has expired i. >> thank you so very much and i view this as enormously crucial holding for bipartisan hearing and it gives me reflections down memoryry lane of the patriot act and the urgency afterer 9/11 del with both, as we fought for in the judiciary committee about civil liberties as well as this to be able to protect america. we've come full circle, i believe and we are here to protect america again and we are doing it from a different perspective. allow me to lay a predicate if i
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might, under the trump administration justice department, they saw phone and e-mail records of journalists, members of congress, their families and staff. i think this, we should dwell for a moment, staff and family. i imagine there's an array of family members, some said there was a child who buries resources were as well taught. ... act, it shows he's unfit over
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the free people. i say that for the i say that for the record not to suggest that what we are doing today. it applies to all of us regardless of our political death. ms. oberlander you said if sunshine is the best disinfectant it's obvious the sstate of affairs allows all -- to grow. we worked hard to pull back even if forever to do so we have had our ups and downs so let me ask all of you a question and a yes sir note too all of the witnesss and then in the time remaining i will ask a specific question but let me start, do you believe congress definitively needs to act in the midst of what we are dealing with at this time?
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>> yes. >> mr. bird. >> yes, i do. mr. -- ms. oberlander? >> yes i do. >> yes maam. >> let me pose this question to ms. burton. how might the use of electronic surveillance used to further presidents personal crusade, what impact do you think that has its it relates to the industry? >> i would say representative that what you need to do and their answer to yes and how it would affect not just the industry because i think what we have determined here is that this affects all americans. i would urge you to put forth legislation that would have a foundational -- that would apply to the first amendment, the fourth amendment the narrow statute that covers broad
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constitutional consideration and that would be to give notice to standards, budgets and no secrecy. i think that combination of things in a narrowly stated and not all the other issues that we have talked about on a lot of a issues that something very simple and clear that would affect -- effectively help our industry and americans and the american public to know that. >> thank you. ms. oberlander let yasskey the question from reverse what should be the limitations on our efforts to protect the american public against these random securing of data now and should there be from your perspective the first amendment specialist and what limitations should we consider if any? >> congresswoman i think that frankly the protection for the
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media should be broad and it should be subject to strict judicial review. anytime you are trying to get -- the government is trying to get this material to invade the privacy of their reporting process, it may be that there are specific cases where you could override that perhaps on acts of terrorism obviously ifif there's reason to believe that their communications around terrorism or the identity of the terrorist. that might be one of the places where you would have theye narrw exception that i do think it is an imminent bodily harm or violence but in general i think the protection should be very very broad in subject to independent judicial review and as the other witnesses have said there should also be the right of interrogatory appeal for
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that. >> the time of the gentlelady is expired. >> i yield back. >> mr. mcclintock. >> thank you mr. chairman. i>> found myself in agreeing wih ms. lofgren this is not a matter ofor special protections for journalists and public officials. this is a matter of the fourth amendment right of every american citizen and it was john adams who was certainly in a position to know who said that in his opinion the american revolution started many many years before 1776 with the king's abusive general warrants. that's when he said liberty was born. we wrote our fourth amendment to ensure such abuses could never threaten americans. professor turley on not an attorney but perhaps you could give me a little schooling. my understanding is that the government wants to go through my papers to search for an incriminating document first you'd have to go to a judge, convince the judge there is
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probable cause to believe that i have committed a crime and that the evidence for that crime is likely to be found among my papers. do i have that correct? >> that is p correct. there has to be operable cause. >> does it make a difference if that paper they are looking for is in my safe deposit box in my bank? >> that's reality about the situation is that because of this new technology and the storinglo on the cloud suddenlya large amount of your information has become vulnerable to being seized. >> why would that make any difference? the could be seasoning my deposit box but they have to go to the protections afforded me under the amendment. >> but they are getting through metadata and other searches is a great deal of information that people believe his private. >> my point is whether i will wrote those incriminating words on a piece of paper wrote them
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mdigitally it's the same thing exactly. whether i store them at home or in a safe deposit talks in the case of a paper or on somebody's server in the case of the cloud it makes no difference. it is the same thing. >> that's right and was predictably bizarre here's the most famous supreme court is for the court amendment protects people and not places and yet we have the ultimate rejection of it because if you move information from him one place to another to moves out of a warrant. >> how have we. allowed ourselvs herself to get so far in these fundamental fourth amendment principles that underpin our liberty? >> it's really two things. one is the court opened up for this when it decided in cases like smith vs. maryland that registers don't require a warrant. a lot of that is based on the myth or the court said to give asyour phone number to a
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third-party ie the telephone company. he used to be there really was a human being there putting in your phone number and now of course you're giving it to a computer so people are not giving their information to a third party knowingly but the court has never corrected that misunderstanding and might do the privacy to mention the other aspect of this is just the new technology. we have constantly same privacy protections that have failed with new technology and this age we are living in is making a mockery. the technology may change but human nature doesn't change in the principles that undergirds our concert duchenne. they are rooted in human nature. i also want to note that there is a growing gap because the court just decided carpenter unita probable cause termination of warrantr to get the location of the people cell phones and
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all that celebrated that was a victory the fourth amendment and yet you don't need a warrant to get information from the cloud. so if in privacy perspective this is not just nonsensical, it's dangerous. >> i just wonder how our district courts and secret subpoenas and secret letters compatible with the free society and can a free society exist if its government can sing really surveilled its citizens in this manner and dreck contravention of its most fundamental law? >> one of the great dangers by the way he can't be a piece of its own destruction. our reasonable expectations of privacy so if our expectations fall the government ability to engage a marvelous security decreases and that could be a race to the bottom. this is necessary for national security for our country but any publicny official is not to
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support and defend the country not an too support and defend the country but to support and defend the constitution and there's a reason for that. our founders understood if we ever lose their constitution we have already lost our country. >> the time of the gentleman has expired. mr. cohen. i mute your microphone. >> thank you sir. thank you mr. chairman. most of the questions have been answered but let me ask because i'mre not sure we probably shoud have the justice department enforces well to let us know what as been going on. ms. oberlander de novo the cases or do you believe there are other cases that have not been reformed -- not been reported where there have been surveillance that would concern the american public and this committee collects. >> i don't have any direct
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knowledge of anything that hasn't been reported but i would imagineld there are. recently we learned about a significant number of attempts to find out the information of various journalists and very as other members of congress so i don't have any direct knowledge of that. >> ms. oberlander you are representative of system for the state, for the press and they are protected by the first amendment. we in congress are concerned about article i but the public as mr. mcclintock will discuss there the subject to be most concerned about and what are your suspicions on what type of cases and what people have been codified through this meeting? >> outside of journalists? >> outside of journalists. >> actually, honestly i am a
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representative of -- and i am unaware of whoever else may or may not have been spied upon outside of the media. >> i think you've discuss some of the acceptance of my be made if we have law and it should all be warrantless and somehow an adversary hearing and appealable to some higher-level court. are there other suggestions he would make to protect the public under the circumstances? >> my testimony does contain initial suggestions. it's very important i think to address the standing issue. we have had cases in which people's in the media tried to get this issue in the court so you don't have a standing which is completely bizarre because this goes directly to the media is and trying to protect their
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constitutional function. there's also limitations on appeal that you could look at. i think you can also end drafting language. more of a legislative presumption that applies in these cases, to make it clear to the court that the default position should be not to have a gap order. the default position should be not to have secrecy issues. the important thing to remembers here is the prosecutors are rational actors and they follow the path of leastst resistance. if you take a look for example 0at studies with a national security letter from 2000 to 2005 n the number of national security letters went from 8500 to 47,000. you only have that exponential growth if it is the path of least resistance. you have to make that path a little more difficult.
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>> i agree with you. we need to make it more difficult and we need to protect the citizens and i think we'll have a briefing from the justice department after the break. when will they know the newest piece and what do they know about the intrusions on the press and gag orders? do they ice come to the public's attention after "the new york times" have reported it and if so have acknowledged beforehand that they didn't plan to make thisis public. i would have concern and i have faith in merrick garland and i think you'll change the justice department personnel to get us to more transparency but it would be disturbing to make -- but for "the new york times" reporting to the forthcoming public about this intrusion of
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mr. swalwell and everybody else and reporters otherwise that our private communications. we do need to draft legislation for the public. do you think is there just one point -- ports or are there many ports? >> the sheer number of these cases is breathtaking. you will have to have a massive court but judges can handle these questions but they need more structure from you. i have faith as well and attorney general garland and in fact he has walked the walk. he has been a judge and he is dealt withto these type of dock issues and now he's ahead of the justice department and i h think it he could be a really terrific l.a. if he means what he says and we could solve the problem.
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in the past the justice department -- i must tell you 15 years ago we talked about it in the justice department was opposed to shield laws and a lot wof these provisions. i'm hoping they did well. >> the time of the gentleman has expired. >> mr. chairman at like to say to professor turley the last time we had contact with the little brat -- browse. you are german and a scholar and i apologize. >> thank you very much. >> thank you mr. chairman. like to associate myself with the comments from mr. mcclintock and ms. lofgren that any protections that we provide should be for a special privilege group of people. that's not the way the constitutiond is written. ms. oberlander referred to the press which prompted me to look at one of the other three and
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saync these are a reference noto the three branches of government to europe which were the clergy nobility and the comments. i think all of them including the state deserve the protections of the fourth amendment to whatever redraft i hope it's not too chilly for congress or for the media. professor turley you touch on something that we didn't get to spend enough time on. could you explain to us in more detail how that came about and what we could do in congress to arrange that back in? >> the supreme court has made an utter mess of this area. erence o the fact that criminal procedure which i used to teach, i was just an absolute morass by the
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supreme court. part of the problem is his idea of third-party if you give things to third parties, you don't have the same expectation from a patriot things like pen registers giving phone numbers almost as equipment like greenwood putting your trash on the curb, you give up all expectations of privacy because you give it to someone you don't know. of course when people put in phone numbers, they give it to a computer that they assume is subject to some types of regulation but gradually expanding for the acceptance are not a rule so you have with cases like maryland, a lower standard and probable cause to the warrant and what you have to understand is every time a court creates an exception, prosecutors pour into the gap and it's not because they are petty tyrants, it's because they have a lot of cases they believe strongly getting information from a they want to get past.
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that's why you have this massive increase in national security because it's so much easier and you have to virtually show nothing is going to be up to congress to make that path a little more difficult and require showing the most important thing is to have some adversarial process standing so people like us can come challenge these things. i declassified work in national security areas and i went to programs so the judge prosecutor and i can argue about evidence. those of the most extreme possible cases you can imagine, some are classified at the highest level. this should not be so difficult because this is highly classified information in the vast majority of these cases. but i think you heard is very important. his company is getting 3500 requests are here. shouldn't the analogy instead of
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taking your trash after the corner and weaving effect from treating your data that way, shouldn't it be like a safety deposit box, if i put it in the car, have an expectation will do your best effort to keep it private parts yet we turn the third party doctrine which we somehow looking to turn out on a type and i hope we do take that on, i want to throw out a couple of i guess here. if we were really serious, we would pass a law that has criminal penalties for those who invade your privacy and i don't care if it's a $50 fine, 30 days paid leave, whatever it is, if there is a crime associated with the penalty much different than that, that is one thing i think we should do. the other thing we could do is legalize technical solutions to privacy like it's technically
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illegal to make a phone call from a location that can't be determined by the government to a location, i can't be determined by the covenant. why is that? it's technically illegal to have encryption if the government doesn't have -- why are we outlawing the technical solution to this problem? we are afraid of privacy but clinging to this notion that if we give folks who don't supervise them and trust that they won't be licensed for a staff so this is just a couple of suggestions and mr. burt like your suggestion that the national security letters and the secret requests are additionally not indefinitely keep sector at -- kept secret but eventually we know about those. this is critical. it got to know what we are trying to legislate. i yield back. >> the gentleman yields back.
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mr. johnson. >> thank you for holding this very important hearing. the department of justicehe has come up short and recent reports document that in 2020 the trumpa administration secretly obtained third-party platforms from third-party platforms the phone and e-mail records to support it and this is not the first time the administration under which the department has done so. we have heard testimony today that doj has routinely misused secrecy orders to avoid due process protections and criminal prosecutions. as a country we have watched presidents as far back as nixon used the legal system to aggressively pursue the sources ofte information.
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ms. oberlander under, excuse me. ms. oberlander what changes should the current administration take to ensure that it does not allow its department of justice to overreach in terms of secrecy orders and destroying the ability of the state to do its job which is to maintain our democracy through free and fair sharing of information that is sometimes critical of government? >> thank you congressman. i think first, i do think it is a great idea as attorney general
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garland has said to basically legislate to work to legislate the department of justice is no longer permitted to come after source information but short of that and i think that would be fantastic but short of that i think we should legislate particular higher standards the department of justice can't get access to journalists materials. specifically it should be again as people are saying not up to the department of justice itself but it should have to come to an article three-judge and they should show the information is absolutely crucial to whatever investigation there is and that they have tried all alternative sources to get that same informationth and have failed ad there should be a balancing test by the judge as to whether the information is important enough
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to outweigh the incredible ability of the press to inform the public about issues of public importance. and so it is essentially a very high standard and a judge should have to consider that and as we talked about the media should be able to have notice of it and be able to participate in it and to argue about it and to be adversarial and there should be a right of appeal. these are very serious rights and they should be subject to a judicial review and that would go a long way frankly. >> okay, do you believe that trumpmp administration follows e department of justice guidelines when pursuing journalists sources in the cases of "cnn" and "the new york times" and the "washington post" that were recently revealed? >> the department has said that they did follow the guidelines.
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we don't know. there's a lot of information we don't know we don't know what information they put before the court and the application for the court to get this information. we would like to see that and see what kind of, why a secrecy order is necessary and as we mentioned these were records that are years old that they were looking for and investigations that have been made public so there was no real -- from my perspective there was no real risk that they had found having a notice go to the media would happen anyway tipped off the subjects of the investigation or allowed anyone to destroy the evidence and furthermore the material was in fact in possession of the third party. it wasn't even in the possession of the media entities so the idea that they could turn around and destroyed its -- doesn't really make any sense.
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>> the gag orders in these cases were quite excessive. would you agree? >> i would. >> the gentleman's time has expired. mr. fischer. >> thanknk you mr. chairman. mr. burt something that are festered turley referred to in testimony microsoft used a number of secrecy orders that were presented to us. we found that the number had increased federal law enforcement has persistently present as with secrecy orders eachch year for seven to 10 per day. is that correct? >> yes, that's correct. >> that's an amazing number of particularly when you try to imagine what thatt might he when you go to the other big tech companies. professor turley u. of the figure and forgive me but you have a figure in your testimony
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about you mentioned the national security letters have gone from 2000 to 2005 from 8,547,000 per year? >> that's correct. >> with a secrecy order mr. burt that you are describing be the same and would that include an overlap of national security? >> no representative it would be in addition to. >> so that would be separate. a national security order has similar concerns associated with adam that would be over above what you are talking about. >> that simply write. >> are those data published in there aggregate? do you understand what i'm asking mr. burt? >> gessen answers and there isn't a writable source of that information aggregate and we had to sue the government to be able to say anything about that and the resolution was that we can only describe the number of national security letters we get in these broad categories.
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for example i can report and we do transparently report in the last reporting period twice a year we got between zeroor and 9 so that's the most specific we can be. >> professor turley u. spoke in your testimony and i haven't had a occasion vocation to digest it that you advocate for the shield law but you said it's the definition of journalist modified as they skim through it looks like you think there needs to be a broader definition of journalist. the story goes to some of what mr. gates was saying and i think mr. mcclintock responded to about the possibility of setting up special privileges for an elite class. if journalists are partisan instruments and partisan politician or the ricin that is to say that direct politician, i
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mean if we establish the special privileges for them to do is take information disseminated that is by law confidential doesn'taw that grant the power o unilaterally not know if i allow?al if you take recently the disclosure of thousands of wealthy taxpayers now could selectively publish as they thought about it they know the information is unlawful but theo decided their efficacy interest -- the the law. how do we deal with that problem? >> this isn't an absolute right in the media is subject to defamation and they are subject to being prosecuted for crimes committed directly by reporters. what we are talking about is the ticonstitutionally founded privilege and the critical case of redford the court was fractured over this question. there were some like douglas
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joyce believed we should haveev absolute privilege. a number of the justices felt we should have a qualified privilege and an fact most qualified person statues are based on my wits out of that case. a qualified privilege simply gives added scrutiny protection to the media and can be overcome in extreme cases but it's there to protect this core function of the media. the take a look at the 40 states with these privileges they have been shut down traffic and it has not been overwhelmingly burdensome and the judges have been able to use them and they think is the same at the federal system as well. >> in the 40 seconds i have left what is the privilege and what are they privilege to do and what are the qualifications? >> what the privilege does is it basically gives to the court before you allow the court to be compelled to turn over information. you have to establish that you
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can't recently get the information from another source that you have a clear need for this information were the courts will balance these interests could sum up the state laws have interested in new york they have a different standard that you go for privilege cordf new stuff ad do you have an absolute privilege. if you go for key material qualify for privilege a lot of states have explored different types of approaches to this and it gives you a lot of models to looks at. >> the gentleman time has expired. >> thank you mr. chairman. it's safe to say all of us have read the report detailing how the trump administration and the department of justice surveilled journalists and not only members of this committee that member staff and family. thank you for holding this committee today and looking at the potential abuse of power and the secrecy surrounding these
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efforts. i agree with tim i think there's a higher standard. >> i think making sure this applies to everyone is important and mr. massie and ms. lofgren and said one easy course would be to save the fourth amendment applies to this data thatnt you generate. all the fourth amendment rights would attest to that. what i want to focus on is the secrecy surrounding this because while microsoft takes this responsibility seriously and if slitigated challenges other companies do the same in many of these new technologies are competitors so it they are willy-nilly giving your stuff away and we don't know about it we can choose to go to another platform if they don't exist.
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i want to dig down the secrecy because that's an important issue there. we don't have a full understanding of what's presented to a court in what's considered to allow these gag orders to be put in place. mr. burt what level of detail or prosecution is required to provide the court and the provider when you're seeking a gag order? do they simply have to meet the statute or present facts that show in fact it would result in would result among the things articulate and statute? >> it's a great question represented in the answers today they only have two present too the court this boilerplate assertion that they meet the criteria of the statute and there's a reasonable suspicion that they can meet that standard. the justice department's policy that they are taken late in or in response to her litigation that they should articulate those facts. their templates as they don't
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have to. >> ms. burton what about after the --is looked at how much information is shared with a targeted party and doesn't require the information be shared once the secrecy order is left it? >> no. that's one of the problems. it's an entirely self-regulated process. the department of justice is -- take your concerns in a group you. it's really a self-regulation do not have the department of justice being based judge and the jury. you go to -- [inaudible] to have a residual set of requirementsra in the statute that's defined more broadly and the judge is now the standard and notice to the parties.
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>> i appreciate that. thank you. once the electronic surveillance related gag order expires is there currently not vocation for the department justice to notify the target of the war and in a gag order was in place? >> absolutely not did in fact they don't typically do that so it falls upon us to do that. >> that are involved entirely upon you. are you required to notify your client or users or sat on a -- basis? >> we aren't required to but we have a firm policy that we do notify. >> is that the same policy with respect to the other large technology platform's? >> to my knowledge that technology is not in place with all technology platforms. >> was limited information should be that their fourth amendment rights were implicated by these collections? >> and the no's were instances where this kind of the secrecy order is justified we think the
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standard should be probable cause and should be presented in court should find that the facts are sufficient but in those instances where that standard is met when they gag order expires the target should be informed that there was a gag order and should be informed of the search. >> thank you very much and it seems to be inappropriate for us to expect third parties are going to fiercely depend the privacy rights of individuals which this current architecture requires. some companies take it seriously and some don't and users lose as a result. i thank you for your testament i yield back. >> the gentleman yields back. ms. spartz. >> i'm listening to all this discussion very surprised with how many loopholes our laws have had very surprised to hear it
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hasn't changed but as mr. mcclintock brought up what has happened? it's's appalling to me that our citizens can trust in the government. i have a quick question and i think congressman biggs brought it up and i would like to yield to him in a second but just for you what hasbo allowed for us to have this loophole in this seinterpretation of the court? is a legal framework that we need to clarify a? what is allowed? it feels like this process should exist regardless. what has happened? >> it's a perfect storm because you have the court that opened this up creating a whole group of a body of searches below the probable cause suspicion with -- which snowballed within a short time. it became the exception as well
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as the world video technology that word into that gap. suddenly we were not protecting people we are protecting places or in this case not protecting places like the cloud. if you take with it from one source to another the cloud which have to use in many cases or reuse it as a matter of -- it loses that protection and your point is a vital one. a lot of people would be very nsurprised when they found out their information is so readily available to the government and that itself is a very corrupting aspect in a free society that the public has a different view fof what their privacy is from the government is actively doing. not enough small number of cases but in massive amounts of cases. >> you believe it needs to have some legal action from congress to be able to remedy the
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situation? >> it's not particularly difficult route and dissolve you could easily. a framework that will protect privacy and fill this gap. >> thank you very much and i yield to mr. biggs. >> i thank the gentlelady for real -- for yielding. professor turley just answer my question i will remind you i was asking about the stick that might be necessary to help globally typically think of as an independent report so your agreement with guidelines, how do you make sure that those will be tougher? >> if i may. >> mr. burton it. >> if i made the concept of extending the fourth amendment is a reasonable framework considered here because then that would take all of the existing sticks as you put it that would apply when government
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overreaches and violates the fourth member right exclusion of evidencet, and so forth and woud be applicable here as well. the irony is the fourth amendment jurisprudence is based on this notion of reasonable expectation of privacy and in fact your security and privacy of data is higher in the cloud that it would be if you kept it in your premise or in your network at your corporation so the technology, the laws not advance the technology to protect their citizens and organizations information. >> andan just to add to what my colleague has said one of the reasons that media organizations are putting their data in the cloud is because they are also concerned about security and they can't afford to have the kind of technology and technologists in your shop to protect from hacking in phishing and all the problems that we have with our data. it puts them, puts many media
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companies in a sticky position but to the point of a kind of penalties he could have there is the possibility perhaps of reaction if rightspo were violad especially in certain cases. >> before we answer this i think we'll would pursuit -- assume that you have a private property right in your data and it begs the question that mr. mcclintock and ms. burt and ms. lofgren why do we have these loopholes and mr. turley said why do we have these loopholes over private property interest in your data? the maker time has expired. you may answer the question.
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>> ms. burton. >> the minute we get due process and the statute -- i would leave it to the court as a business cases. the prosecutors point of view is remedy enough and i'm not in favor of creating action around this. i think we are trying to protect rights and the court would make sure that occurred. >> the gentleman yields back. mr. lieu. >> thank you chairman nadler for holding this important hearing. professor turley i'd like in a follow-up on the line of questioning. just walk through them -- some standards. i want to talk about the difference between their content ofhe let's say a document versus metadata. if the department of justice wants to give the content of an
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electronic letter on your home computer they would need a warrant by a judge come is that right? that is correct. if they want to content of that same letter stored on the cloud they would still need an order signed by a judge, that right? >> the content that they can get metadata. >> let's not get confusing. they would need a warrant signed by a judge? >> yes. >> and now let's talk about metadata. first of all what is metadata? w >> it's defined by data of the data that is metadata describing data and that could also give you information as to the identificationte the subject. that's a lot of information. >> let's say someone once metadata stored on your home computer.
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they would need a warrant signed by a judge, right? >> to get into the computer that's right. >> okay now they want to get metadata stored in the cloud they could simply said the subpoena and get that data without a warrant? is that right? mimic in addition companies like mr. burt company the unwilling participant in that type of disclosure. they are essentially being commandeered. >> thank you. a basic question here a grand jury subpoena for metadata. as a judge involved in that process at all? >> grand juries can issue document production lower than probable cause. judges are supervising that procedure and in most cases these things are issued with very little review and more importantly grand jury subpoenas can come under probable cause.
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>> let's go back to this example were a few of metadata stored in the cloud there's no longer a work were requirement. what if congress i put in a warrant requirement for metadata stored on the cloud? what isred your sense of that? >> you couldld do that but remember it's not some huge standard. i'm d a criminal defense attorny nick can tell you it's a pretty easy standard for the prosecution to me. you have to have clear an art tequila bulk facts. i don't think the world will come to a sudden stop in terms of prosecution but it t would make -- it would change the grade and make it more of a climb for prosecutors. right now this is similar to the false lantern approach on the east coast where people put up a lantern to confuse people. people go to the cloud thinking correctly that the clouds cloud was lots of protection of your data in it turns out -- once you
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do that. >> thank you. i am sensitive to the view that we don't want to draw lines around some people and not others or they do know the persecution -- sowed journalists are infected different category in the constitution also does put in separation of powers and when you have one branch trying to intimidate for example congress in seeking this information that does pose a problem. my view is that we could in fact try to do something different and when they are getting information on journalists dataa providing notification for example as the second check? what do you think about that? >> i think it's a great idea in terms of greater transparency
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but i want to note that some confuse me. you have for an current and previous attorney generals forward this program. either the it turn a general or designate high official is supposed to sign off on this so i don't o know what happened the but it's one of the first things this committee should try to find out about. >> thank you and my last question to mr. burt this increase of the secrecy order to know what the investigations are about for example child pornography or something else or do they tell you what those investigations are about and with that i feel bad. >> we don't know is that what the investigations are about but we do know enough there's there's the end the va's the 30s cases they are routine investigations that are not about child abuse on line or national security issues and they are just routine. i want to make one think we are
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because i may have conjured it to this confusion. we talk about a standard like the warren standard and the probable cause standard for war andd we have to get the warranta for reproduce content e-mail for example and just a subpoena is all that's necessary to get metadata but what you are talking about today is the secrecy order that accompanies that warrant for that subpoena and it's fair that we need a higher standard and actual finding of fact to establish a secrecy order is truly necessary. >> the german yields back. the gentleman yields back. >> sometimes i think we are worst enemies whether it's congress or nested judiciary brought up earlier. could you comment mr. burt and professor turley a little head about the changes or commendations that have been made under the auspices of ethernet security or public health when it comes to watering
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down of this view? >> this body has shown that it can solve problems. you did that with health care permission. you createdd added privacy protection. you've done that in creating new limitations on secret searches. all of that can be done if you have the will to do it. what we are really talking about here is not interfering with investigations but to require a greater level of transparency and truth but also to allow greater numbers of people to have access so they can -- the government often wants to do exports a on camera presentations ander i'm in court screaming bloody murder saying diplomatically to the judge, judge i know you arere familiar with this but you aren't familiar with his case any nh nd someone who knows what this case
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is about and whether these documents are material. there's a long-standing comely have but the problems we face are nothing like what's being done here. basically your people are told they have no ability to challenge a particular look at the gonzalez case. and cat -- that case nerc times recently said we are going to turn over phoneur records do you and then call the provider and set by the way please tell us so we can go to court in the client said no and no doubt because the department of justice said no. "the new york times" has no standing to be heard on this issue to a deal this question. in what universe it of two process with that seem reasonable to you? >> our just add what we have seen happen over last two or three decades his tools are
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provided to law enforcement to address the problems especially around national security and have now been overtaken by technology and the way that people keep and store their data in those tools have now not been restricted and limited an upper prayer wayn to protect individul rights as technology has moved data on premises into the cloud. that's what we are seeking here is a restriction on those tools but still enable the kinds of investigations that are truly necessary to be conducted for brief period of time in secret but in most cases enable notification to our customers when their data is being sent. >> thank you very much. professor turley i'm going to get a little more specific on some of the issues that have been discussed earlier by some of my colleagues. a report by chairman ron johnson
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from governmental affairs found that trump administration was tracing 125 stories, about one a day and the report concluded the capacity to damage national security which is kind of what i was trying to key up earlier. under present count during president obama and even george w. bush, why is this problematic iand why was there a difference between administrations and ultimately the leading narrative that has been out there. >> frankly i've never seen anything like the ones we have seen in this administration. was almost like you were getting in real time. you're getting leaks about meetings that just happened and that obviously can't happen. you can't have a functioning residency if you think whatever you told the world leader or your aid will immediately be
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heard on "cnn" or fox and the government has a legitimate reason. my objection is what i call reverse engineering. nobody can attestre that the trp demonstration announcer would go after leakers have every right to do that to try to find out who is leaking about the rise information but what concerns me is that they know who received information. if you look at the byline on the article that's the person who is the recipient c. can reverse tengineer by focusing on the reporter and working back. that's a very dangerous approach. dangers for the constitution and the preferred way is to look at the suspect but in the process of that you are going to find out the numbers of reporters. you have to. that is where you start in my suspicion is this might be a
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case of reverse engineering which i would love to have the ability to confirm. savage on the time has expired. mr. raskin. >> thank you and thank you for holding this hearing by two of our colleagues. i want to thank the witnesses for. helping us examine specifically when it comes to freedom of the press. i think it's a matter of fundamentalte importance of fundamental democracy and i'm pleased to note that tomorrow i will be producing the craft back to protect reporters from exploitative acts and working with senator biden for some time as long as with my colleague mr. lieu produces the update of
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a free flow of information act. it will prevent federal law enforcement from being able to see information to their work devices as well ass personal devices and prevents the government from conduct ring -- by preventing them from seeking communication services except in narrow circumstances. demonstrad by what appears a broad consensus today will join us in cosponsoring this bill and work to defend the freedom of the press against these practices. ms. oberlander, ms. bird, i would appreciate if you could expound on the need to address the secrecy orders being used by law enforcement to prevent targus of even being aware that their information is being sought and what type of
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oversight the court should be conducting to rein in the abuse of secrecy orders. >> thank you, congressman. i would suggest that by having again and narrow procedural bill which says that there cannot be a secrecy order without a compelling interest that's been identified and presented to a judge for specifically and a judge has made a ruling. and if we did that you would see very few secrecy orders before we had this that or that everng was going through wasn'ta problem at the same level that is now so i would just suggest if we have proper and clear requirements that there is a bilateral recitation to a court either through the judiciary which would create opportunities to hear the other side of an argument if something was a national security issue that the
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probably resolve the secrecy. >> the secrecy order would go back to being an exceptional rather than the rule. it seemedd to be pretty or phone three. >> that's right. having a dual process as having a presumption in favor of openness. in light of all the constitutional rosin casee is upheld. >> do any of the other winces want to comment on that? >> i would only add you can narrow the length of time that the secrecy orders are in effect. right now there is no time limit so we could add 45 days or 90 days and we then have to tell the subject for the media entity that their materials have been requested and that b would helps
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well. and then the other thing that we are presented in our testimony is in cases where it's truly necessary to not inform the affected media maybe we can have an independent third party with some sort of advocate perhaps he doesn't necessarily let the media know that they've been hired but who comes in and talk to the judge and says it's a very important interest here and we should please be considering them. >> ms. oberlander let me stick with you for a second. you've noted in your testimony some of the policies being used by doj to limit journalists but you observe that these are really tunnel policies that are subjectre to override and whim y featured administrations and they don't address the end run routinelyss by law enforcement y third-party data and country -- companies like microsoft and i
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wonder what you think about the need for a law from everything we have learned in the last 10 months and maybe i can close with that question. >> i would be delighted to hear that you would be introducing the press acts more. need a shield law which will frankly protect from government overreach but also in private cases as well and civil cases. i really think that is needed and i'm thrilled. >> if i could go down the line professor turley do great? >> i do agree in the only quibble i had in my testimony which was in the quibble but disagreement about the definition of a covered person i also think it can be tweak to increase some issues for example a single line that national security may be considered by a court and previous legislation and it really doesn't say how
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that should be weighed by the court. i expect a lot of judges wouldgh look at that as a standard. >> ms. burton degree? >> i agree but i wouldn't let it a longer process by issuing a bill into law. by the way we can't underestimate the harm of a lack of process here which to me is incredibly dangers to the american public what that i do support the shield bill and i think d it's more complex whiche should be reflecting on also. >> i want to thank the chairman for putting this hearing together. regarding how serious the situation as we can have a fourth amendment expectation of privacy regarding all their information including information stored in the cloud
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and a governments could come toa third party like mr. biggs's company and get a warrant to get the information they tell mr. burt that he can't tell his customer was going on and he can't tell his customer that your liberties have just invited him when governmentt initiates t all the attorney general does even sign off on it. the current situation abroad as here's the situation that's in the press and you've had in mr. turley's testimony i would say it's more notable but it's shocking and alarming that bill bar and merritt island -- merrick garland -- you have no one who has been confirmed and checks and balances on protecting her liberty who is signed off on this. as mr. gates said the idea that
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we can work together and do something. that is the situation and i'd be curious mr. sadberry has it this happened to the same customer several times? >> i'm sure it has happened in the same customer several times although i can't say that with specificity. >> so it's even worse than i've just described. >> one thing congressman one of the things we always do when we get this processes we look to make sure it's accurate. we will not reduce our customers content without a warrant but we still are subject to the secrecy orders that we can tell the customer that their data has been taken only a customer can exercise their fourth amendment right. you can exercise your right if you don't know it's been violated. >> in winning suspect might be is in the gonzalez case they can
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specifically say no they can't do it. there's no way to make your case and be an advocate and do what you do in the court. that's right.. the court would say we don't have standing on the fourth amendment issue and we'll be told we don't have the right to tell our customer that they should look to see up there for the member have been violated. >> mr. turley this may be the first time this congress has had some kind of agreement and maybw we can work together. what do you think we should do because i do think and mr. raskin and i don't agree on a lot but tell me you've heard the comments from both sides to of give the one, two and three. >> putting aside the shield law which s we discussed their six areas we should look at but i think you need to strengthen the standards we need to give courts more concrete standards and give standing to a company like
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microsoft l to be able to contet these issues and to limit these types of agreements. to stop relying on the goodwill of the department of justice. the department of justice says of orders have extraordinary measures in investigatory practices but ator the reports are true but what we have been reading about. you need to establish concrete standards that can be appealed and the critical t parties of interest can be in that room and then we also need greater transparency and how many of these things are being issued. you have a number of courts that in writing with nothing but boiler plate language from the justice department's little ability by the court to say no.
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>> thank you. >> we detail my written testimony the steps the committee should consider but i would emphasizee a couple of thm is really critical. the restriction on us owing art customers a restriction of first amendment right to the standard of the secrecy orders via strict scrutiny standard but that's nou being applied so that corrective legislation would be clear that strict scrutiny should be applied and there mustld be findings by the court based on compelling evidence submitted to the court showing that standard has been met and even then these privacy order should never be longer than the proposed 90 days without clear evidence being shown later on as to why they should be extended. we think just those steps would significantly reduce the number of these privacy orders that arf even set and certainly reduce the numbers being granted and confined them to those cases
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where they are truly necessary for the national interest because they would have to show to get that privacy order that they can meet one of those five statutory bases for getting a privacy order which are reasonable reasons to proceed and a short-term private and secret way. >> the dumbest time has expired. >> i thank the distinguished chair for holding this hearing as well as the witnesses for your presence here today and clearly in the constitutional construct of this country we have got an article on legislative ranch that is -- thatti i'm proud to serve in the article to executive branch in article iiill judiciary all apparently constructed to make sure they strike balances but also the framers of the constitution recognized the importance of a free and fair press and the first decision made to amend the constitution recognizing it was central to
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their vision of a democratic republic in what it would look like. so i just wanted to ask a few questions and ms. oberlander i will start with you. drag your khmer the legal implications of reporting on matters of public concern and snational security, is that right? >> yes. >> in your view how is the government's use of what i would phrase secret subpoenas and gag orders written in the ability of journalists to do their job? >> journalists who are afraid that they are being surveilled or that they have been surveilled in the past it's very difficult to go and talk to her to be able to fairly represent --nt but they will try to maintain their confidentiality. some of it is on the source
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side. they seeid the journalist had bn subject to subpoenas after-the-fact and they say i can talkct to you. it makes it very challenging. >> providing information to the public which is a great service that, journalists provide that they often are relying on confidential sources. is that right? >> yes. there's a lot of reporting national security reporting - bt all -- also other important national. >> can you elaborate on the importance of maintaining confidential sources without this practice being chilled by an overbroad or overly aggressive department of justice secret subpoenas?
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>> yes. in our papers and in the testimony if you look at all sorts of incredibly important stories of national importance raised on confidential sources somewhere in fact national security but others were conditioned at walter reed levels of corruption and foreign government and effect frankly as a person who has worked at univision i can report the error in is an, awful lot of reporting about what's happening internationally with other governments where you have your import reporting coming through and they are literally in fear for their lives. they may be killed and they have flegitimate fears of retaliati. that c course fortunately we hae
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not killed too many journalists here in the u.s. but is it big part of our reporting. similarly there have been reports and much reporting about alll sorts of fraud and visa applications and things were lying on people who sources would don't want to be disclosed because they may be and documented but may be subjected to conditions. the enron reporting and just now the reporting about the tax filings of wealthy americans. >> some of us make characterized as overaggressive and inappropriate behavior, the department of justice will sometimes cite national security and that's very broad and we are
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all concerned about nationalr security but in your experience in the final few moments like i can you articulate how might we think about balancing national security as a concern but also allowing the press is vital to our democracy. sara the time of the gentleman has expired. the witness may answer. >> there's a long-standing problem of overclassification os information in the country and because of that if the court discloses information that it classifies and maybe gives the government an opportunity to argue that it's a violation of the secrecy act are they espionage act you have a national security issue and really bad information is not of
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that kind of importance work could be truly something secretive and dangerousou to the country. one way of restricting it is to restrict the definition of national security in the statute that we pass. and to narrow it to include terrorists and potential terrorist acts and not just a level of embarrassment to the government. that would be one approach. >> mr. bentz. >> thank you mr. chair and thank you to all the witnesses for your excellent testimony. we had a 25 hour marathon discussion last week and much of that discussion focused on
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eroding and professor turley had think you mentioned it isn't as reasonable as it once was given now what we are doing so your awareness of that let me ask you what is our new standard and what is the alternative is none us should expect privacy in a more? >> i think that is the danger that we could move towards the post-privacy world and that's something that none of us want to see happen. the standard is unlike we did change but it means that our protection from government surveillance is based on a reasonable expectation of privacy and asset expectation falls the government ability to engage wireless surveillance increases in that can make expectations fall further. thisis is the ultimate example f that. people store great deal of
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information on the cloud and if they begin to understand that what they send in messages in terms of data and metadata is not protected and phone numbers are not protected and all these other areas are treated as subject to the standard of reasonable suspicion which is barely a speed bumper prosecutors. and what worries me as i tell my wstudents a solid time and i teach privacy and law school is a my studentss expectations of privacy is a fraction of my own and we are seeing this decline in generations but it has a real impact on the government's ability to engage in wireless surveillance and that's why this expectation where the congress corrects the error of the courts they come in and say we actually don't want tot live in a post-privacy world. there's new tech knowledge he here on the cloud and we are going to protected because if we
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are really serious about that the fourth amendment protects people in a leases them protect people find them in the cloud in terms of what they are leaving there and you would -- more than the supreme court is done. >> thank you and on page 11 your written testimony reveals that there has been a constitutional violation and i think the way you t put it of a lawyer communicating with her client. are you khmer within a situation where such prohibition has occurred where a lawyer has been told by a judge he can't talk with your client? >> i'm not aware congressman and i think it's a clear violation of laws and the attorney client was and if i would have brought
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a separate action to the courts to have that vacated but that's not something -- it could be part of continuing legislation that we are considering today. you stayed in the legislation should clarify the extraordinary resumption. we do describe or tell us how you wouldr the dish -- definitin of a heavy burden? >> there needs to be a compelling interest before any kind of secrecy order can be imposed. one of the things we have done is we have a provision with all of our club providers that would require them to give us notice so that helps which tells me if we were to add language in the statute we would have the same benefit of that. the government goes to whoever it's easiest to get information
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from and i give credit to microsoftet who are very good about giving us notice but that is not the case for all of our communication providers. >> thank you and i thank all of you for your patience and i yield back. >> the chung mun yew that. >> thank you chairman and thank you for holding this hearing and as we look at the last administration and the abuses at the department of justice it's clear we have a president and a department that has rewarded the president's friends and reducing those sentences or pardons for paul manafort roger stone michael flynn and punished in weaponized the department to go after the enemies. i guess i would start with ms. oberlander would you agree
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that the president setnt the toe and how it president engagesho whether they are compassionate or their leader has a real effect on how everyday americans can -- themselves? >> i would and i do think if the attacks on the media in the last administration has had a profound negative effect on how the media's perceived by old americans and i think the specific attacks on particularts journalists has really undermined and worked to injure the press. >> ms. oberlander you are correct. at the trump rallies the attacks on the media we have seen across the country attacks and violence against journalists. you did not do my questions ahead of time and this is not an
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advertisement for my -- against journalism but ms. oberlander my concern aside from what donald trump and the department did because i'm happy that merit garland is going to get o to the bottom of this and congress will understand who's responsible. on extrapolating what you were saying the department of justice is not the only law enforcement engaged is that right? >> i think that is correct. >> in every state you have a attorney general and of course municipal law enforcement. do you fear that if you have a president who is willing, who detest accountability and is willing to weaponize is on lawe enforcement agency against its enemy that could have the effect is a mentioned earlier with the president setting the tone of governors and mayors given a
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permission slip to weaponize local law enforcement?oc >> i do want to say the subpoenas to the media have been going on -- this is not a partisan issue. we did see president obama issue a number of investigations and we'd have -- we have had new growth of that. it's not purely a political issue but again the attacks on the media have had an effect both federally and locally and state jurisdictions and if you look at, there has been a lot of video of people who are labeled media press etc. were treated and injured during some the process last summer does feel in some cases they were singled out because they were press. >> and i agree with you that
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it's wrong that the obama administration allow that but do you agree that while that was an aggressivegr pursuit the difference between what we have seen our suspect did under the trump administration is that it was a punitive use of power meaning the motivation was to go after perceiving enemies whereas on the obama administration side you have an aggressive use of law enforcement? i think there is a distinction. >> there isn't distinction between it and i want to characterize one or the other but i will say there has been during the trump administration we believe more investigations opened up in the prior administration.
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>> out of one they want to walk away from this hearing believing that a member of congress commits a crime or there is probable cause for war that he or she should have their records subpoenaed or their property searched and seized but what can we do aside from additional attractions for journalists what can we do for nonjournalists? >> i completely agree and i will say even what we have looked at and the guideline to do want to point out that if a journalist is suspected of committing a crime and the crime is not out of newsgathering that none of these protections apply and government can come after and look for their materials so there has always been an exception of a carve-out having to do with newsgathering.
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i do think for everyone i do think there should be at the very very least by members of congress the duty of candor on the health of the department anytime they are lookinghe for materials from a congressperson or their staff or family and they know who they are looking for the need to tell their party providers of whose information it is. apple is said they have no way to identify essentially if theyt did know was congressional staff and family. i think there should be a legislative obligation to say what they know and limited places where there is no service provider will be able to make ac determination on whether that's something they should be objecting to or not. >> the gentlelady's time has expired. mr. johnson. >> thank you mr. chairman.
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i appreciate her witnesses but i have to take a few moments to address the elephant in the room. i'm here on the southern border in texas and appearing remotely -- he doess i'm meeting with two dozen members of congress to highlight the crisin here. mr. chairman i have to say the house judiciary committee has broad jurisdiction and this is the most pressing issue facing the country as being totally in ignored by the committee. last night mr. chairman we were on the border until 1:00 or 1:30 in the morning. there are caravans coming across the border all night. the border while construction was stopped and there's a big gaping hole and there are many across the south sector of the border. i appreciate my friends finally -- but that is not where
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the p apex is. many hundreds of miles south. the house judiciary committee has the responsibility to address this crisis. we have 10,880,000 encounters of the border justin may alone. it's a record increase in it to crisis. people are walking across the company. the border patrol attraction of the agency or are so frustrated because theyey can't stop it. the cartels are trafficking humans into this country. they take them to facility and most of them to give them travel arrangements and they are sent into all 50 states with no expectation. this is a humanitarian crisis and occult by the way fentanyl seizures are up 934 pounds on
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the southern border alone. that's ar trainer% increase over may of last year but this affects every state the nation and every american and this is a dereliction of our duty. i'm saying to my colleagues across the eye we must address this. two republicans on our committee have introduced legislation. i have a number of bills myself to help with the asylum reform. they have been ignored and i want to go on record and use item is to say we will be safighting this on the border. i think very frankly it is a shame the judiciary committee is an ott i yield back my time because i'm about to go to the border here. we need to talk about the need to have a hearing. >> the gentleman yieldsn back.
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mrs. jayapal. >> i hope he asked why mr. trump separated thousands of children for their families and by the trump administration undermine the civil liberties of so many people across the country with the secrecy orders. i wanted to pick up on i believe it was mr. cicilline's question about what is needed to get these protection orders? i think that process is quiteer stunning for most americans who don't distinguish between what happens to their data that is stored and what would happen if they were to be in their home and their files were to be seized. i want to just read from the u.s. department of justice office of the deputy attorney general memo from october of 2017 in the footnote is says one of plying for an order to accompany a subpoena seeking
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basic subscriber information in an ongoing investigation that is not -- stating the reason for protection for disclosure under 2705b usually wills plays and to put the point on every one of youu in some way or another to comment in mr. turley you were speaking to this as well. quite stunning to me that there really seems to be no standard at all. the courts are going to get any information because of the direction. i'm wondering on a scale of one to 101 being a robber stamp and 10 being a real process that protects our civil liberties, our right i'm just curious where you would put the current d?standard and let me go through quickly mr. turley. >> i would put it out of one and i compliment you for highlighting this in the bill because it's basically telling
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prosecutors you don't have to give any detail in the department of justice says you can use boilerplate and use it over and o over again and judges when they see it say this is all they have show and that's how you get to these high numbers. >> mr. burt? >> i would agree and the pafootnote says they are supposd to articulate that but then when you look at the template that the department of justice provides to the 93 offices around the country here's how to get the secrecy orders it says just write down the boilerplate so the template is consistent thwith the footnote and there's really no meaningful process. .. exposure to these, only the ones that even reported but certainly
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for the ones that have been reported, one or two, it's pretty low. >> ms. burton? >> i would put it at a zero. this falls in the category of a ham sandwich can be indicted, the government calls the shots and that's the end of the discussion. that goes to his ear to be. >> i object. i wasn't given that option when it took the test lab expert you stuck to the instructions. let's say the extension is obtained and then the very next day the case is got because there's not enough, you know, there's not enough evidence, whatever. what happens to the extension? does the doj's go back and say actually we don't need that anymore? can you give us some knowledge about that? >> we have a case where 15 years ago very, very beginning of cloud computing, it is still a sealed proceeding. i mentioned it in my testimony.
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i think this is a critical problem. you have to have a sunset provision of the very least but again if you have pentagon paper type standards the greek and even it into this kind of the secrecy order, you are not going to have a big problem. national security and secrecy orders are a very small percentage of what were talking about. you would have a sunset and a small problem. >> so mr. burt, i was struck by the data of microsoft receiving 5500 requests just in first half of 2020, and your company turning over basic data to 54% of the requests. compare that to the "new york times" reporting that apple turned over basic data in 43%, google turned it over in 83%. they spoke turned over in between 85-89%. 89%. it seems to me that were essentially depending on tech companies in this case to negotiate the civil rights and
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civil liberties of their users. why is it that your rates, and if apple here i i would ask tm as well, were so much lower? it seems to me you take this very seriously and how you move forward with these requests. >> time of the gentlelady has expired. the witness may answer. >> we do take it very seriously because we think it is our obligation to protect our customer interest you and because we do believe this is a first amendment violation, a restriction on our ability to inform our customers when the data they trust us to hold security for them has been taken by the government. but somewhat in defense of some of my competitive companies, you also have to understand different companies that different categories of data. we have a lot of what is been referred to as metadata, and often what we get is a subpoena for the metadata. then accompanied with the privacy or a gag order. so our percentage about how often we provide content versus
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metadata is in part a reflection of the volume of accounts what we do have metadata come whereas the social media company, for example, that metadata might be less interesting to the government. they might be more interested in the content of the postings. i do because i don't represent them and i don't see the demand that they get. but there are possible explanations other than just how seriously we do take our obligation. >> thank you for taking seriously. i yield back. >> gentlelady yields back. mr. scanlon. >> thank you, mr. chairman, thank you to all of our witnesses for speaking today about these really important issues surrounding the doj's extrudate use of its investigative powers to seize mr. as the members of the press, members of congress and their staff and families. as a lawyer and someone who is bad represent philadelphia i had to note ms. oberlander written testimony where she talked about
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the fundamental values underpinning the first amendment and the uniquely american principle valuing of free press. her strong expression of the principal arose during i try which occurred before the constitution was even written. that case stemmed from his refusal to disclose the sources of articles critical of the british government that he published in a newspaper and, of course, there was the brilliant philadelphia lawyer andrew hamilton, the relation to alexander, who represented that case. hamilton argued for the critical importance of the free press to preserve our liberty by exposing and opposing tyrannical power speaking and writing truth. those principles are written into the constitution. how striking that almost 300 years later we're still addressing the same issue. we need to preserve the ability of a free press to protect its sources, particularly from a vengeful or tyrannical government that's trying to prevent the press from speaking and writing truth. mr. burt mentioned the problem
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that when data is obtained under a gag order for microsoft or other platforms, they can't raise the fourth amendment protection because the long to the individuals whose data is being seized, but then we have this catch-22 because i also can't tell those individuals that the data has been seize and thereby give them the right to assert the fourth amendment writes. as i understand it the work of banter that some news agencies have been able to implement is that that contractual provisions that require the tech platforms to notify them if the government seizes their data but then they gag order extends to the attorneys as well. so we still have this problem. do i have that wrong, esther bert? your shaky right. >> yes. it's not quite right because the media companies, we do disclose when we can and we have customers including some greedy companies have very specific disclosure obligations written
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in by contract because as florida earlier we don't have an obligation to tell our customers when the data has been subpoenaed or obtained by what do we do it as a matter of policy. some of her customers say we want that in a contract, and we agreed to that but it's always subject to the secrecy order. we can't inform the needy companies outside counsel. we can't inform anyone even within the company itself, within microsoft. we are restricted as to who can know about somebody secrecy orders it's not a workaround for this problem. for the press to exercise its right to be a free press they have to know when the data is being taken by government, and we can't tell them when we have a secrecy order. >> ms. oberlander, you discussed the fact that construct as being used now creates issues with respect to attorney-client privilege, is that right? >> yes. certainly as when you just extend the secrecy order to get
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in-house counsel and you don't let them tell the client, yeah, outside counsel for the mets. >> is that impede the free press ability to collect data, center? >> so, i mean, it really, first of all the attorney can't do what they are hired to do which is to give advice to their client. in some ways it's better than nothing because they can, in fact, higher if their failure to outside counsel who can go and try to make their position known to the government, which is what happened with these gag orders we've been talking about. but it is, it's a very, very and it also creates, just in terms of the client relationship, if your client doesn't think you are telling them the truth or that you know something about their work, there is a level of distrust that can poison the anti-relationship going forward. >> it sounds like it creates a corrosive impact on the whole system. >> i believe it does come yes.
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>> mr. turley you mention the current future procedures require seem to doj leadership to sign off on the secret subpoenas, is that correct? >> yes, that's correct. >> the three most senior official of the department of justice during the relevant time. both former attorneys general sessions and bar and deputy ag rosenstein all denied the signed off on the subpoenas in this arena, is that right? >> that's my understanding. >> do you think the process failed or are these answers from those officials disingenuous? >> that's the first thing i put in my testimony is, for this committee to confirm, is it does make sense to me that standard of a high level of approval put in the 1970s as part of reforms over all. then after that controversy during the obama administration it was ramped up again. that was reaffirmed that you need that type of sign off. this is one of those things that should make the sand balance
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over and the department of justice. if you're coming up with a search that is hitting on journalists or members of congress, you would think that would go straight to the ag's desk. i believe these ag's, there have any recollection of approving this are being informed of it. that's the first thing i think the committee needs to determine because if that's true something seriously went wrong here. >> thank you. i see my time has expired and i yield back. >> gentlelady yields back. ms. garcia. >> thank you, mr. chairman, and thank you for putting together this wonderful group of experts to visit with us on this very important topic. like many americans i was alarmed to learn that trump administration season records from apple to obtain and others to obtain -- records. [inaudible] our own colleagues, family and staff.
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it was outrageous. then also from news reporters which again is outrageous behavior. it appears now from some of the testimony with her today that more often than not, gag orders were sought to make sure that they could not alert anyone. to me this is a blatant abuse the power. during the house impeachment investigations and trials of donald j. trump, i constantly remind my colleagues and all americans that democracy is a gift that each generation gives to the next. we must protect that democracy and we must do all that we can to stop this kind of behavior. former president trump has time and time again place his own personal interests above the american people and it appears he did that in this case, too. my colleague looks like he was a target of these attacks,
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mentioned that earlier. it is again -- wanting to get some of his critics. it's evident that our founding fathers vested the power in congress for oversight so i'm so glad we are doing that today. congress and the american people deserve the right to know whether these unauthorized disclosures to collect information were properly predicated and approved. i said it before and i'll say it again. no one is above the law. i want to start my questions with ms. burton. ms. burton, you mention in the three or four things you would seeking reforms which i think is refreshing it appears to be true, , we seem to have a consensus even in our committee that reforms are needed and it looks like we have anonymity among the panelists who it is a rare day for us in the gut sherry here but you talk about safeguards, you talked about
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transparency. if you could wave a magic wand what would you process look like to you to safeguard the first amendment rights? >> i would make them broader than the first night. i would make them a constitutional right where you would give the court the obligation to look at what the government presents and it had to be very specific and there had to be a compelling reason before anything could be done in secret. the minute that shall he was not made this reason of the protections come whereby counsel for the press can come in. there is a secrecy order. there's, no judges. but it think it's very important we have clear articulate standards of what due process means in this case. so, for example, i think cloud information should be treated the same as file cabinet information. there is no reason those have to be separate. i would put that into the legislation. it's a series of waterfall things that would follow one from another that would make it
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a very compelling and problematic for the government on about 95% of the cases that they are now proceeding in secret with. >> thank you. mr. burt, you talked about judicial review and you also talked about limiting the gag orders than 90 days and an extension requiring a high standard for any kind of extension. what exactly do you have in mind and do you feel like the scrutiny for the extension needs to be the same or even higher than the original gag order application? >> well, i think it is the same standard that needs to be applied. it's a strict scrutiny standard because you're trying to combine the first amendment rights of the cloud provider to inform the customer about what's happening. so you can say we have satisfied that for a 90 day timeframe because with one of these very were special circumstance where they can secrecy is required in
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the national interest. if the court is convinced of that and put to bed gag order in place 90 days that should be as long as it goes in less government can come back and establish to the same degree with the same degree of strict scrutiny analysis. so we had to come forward with compelling evidence and show there's no other alternative that can satisfy the governments legitimate interest. you would have to reestablish that is necessary for an extension of that 90 days. it should definitely not be any lower standard just because you a 90 day gag order. if anything as you're suggesting perhaps elyse the court should be considering really why do we need another 90 days? >> gentlelady's time is expired. ms. dean. >> thank you, mr. chairman, and i think all of our talented witness for your expertise and advice to us. ms. oberlander, i would like to compare and contrast some of the things we talked about earlier which has to do with state
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standards as contrasted with federal standards and privacy we know where we stand on the federal standards. i come from pennsylvania. like my friend and colleague represented scanlan, our shield law is among the nation's strongest. in fact, or state courts have read our state legislation to protect as an absolute privilege any information which could expose the source is identity. do you believe our state law or other state shield laws that are much more effective could be used as a template for us here as we craft federal policy? >> well, i do, and pennsylvania does have a good shield law in new york where i live has a very, very strong also an absolute privilege for confidential sources and qualified privilege for non-confidential material and i think those both could be models for a federal shield law. i do think that because you're such a great experiment across all of the different states that
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one of the places where state statutes haven't kept up is on the definition of journalists. it really does depend on which stage are looking at. a lot of them come some of them at least a tie to the fact you have to get the protections of the statute you have to work for a newspaper, magazine, digital radio. they don't necessarily permit without challenge like if you're an independent journalist now who is running a subscription newsletter or somebody, i work with a lot of journalists who are professional journalists but they're not making any money. and so the definition of how it with, you would have to look at it. i wouldn't necessary say the state statute are models on that. however, in terms of setting aside absolute privilege for confidential sources and qualified privilege and they are. >> that cell phone. i'm of my own constituents, journalists in the fourth congressional district, and i have many. they feel and maybe you could
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detail the vulnerability. while they enjoy the protection of a state statute, depending upon geography, politics and other factors, they are left vulnerable. can you detail some of that tension pgh yes. i'm going to use the example of new york again because that's what i practice. but if you're a journalist, you've been a terrific investigative story, maybe its malfeasance in new york city government. move it outside of federal, but there is or it's a regular, doesn't have anything to do with government or it's a private malfeasance investigative story. if you get a subpoena from the new york state supreme court at 60 60 central street and they want your confidential source information, who's your source, you can go in, waive the shield law and you don't have to provide your source information it's an absolute privilege. across the street in the federal courthouse there is a different
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standard. it is a qualified privilege to the degree it exist and you had to go and there is something and you have to go and you show that, or the government or whoever whatever is looking for information would have to show that it's highly relevant to whatever their lawsuit, that they've tried to get it from other places, they haven't of the battles that equities generally weighs in favor of disclosure. but as a journalist you may have to disclose your source. and so when you're talking, reporting it, dealing with resources, you can't say with any real certainty i am not going to have to give up your identity. that creates enormous haptic. >> incredibly dangerous. dangerous point thank you for that clear description. ms. burton, it's been i guess more than 40 years since congress passed the privacy protection act. now we see government can go directly to third-party providers to compel work product. as opposed to going to the journalists who were protected under the act.
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the ppa is clearly insufficient. knowing the actions of dear jay federman discussed today, how should congress specifically continue, i know you've offered some, but continue to strengthen protections offered by ppa? >> thank you for the question. of course the guidelines first came because the department of justice was in the running constitutional rights. and then when that barrier was not high enough, they went to warrants warrants were easy to get stamped in a court. and then you congress passed the ppa. now we come to communication providers. i think the legislation that would be considered here, the simplest of it without a lot of other pieces, but just the simplest of it to put procedures in place is what's going to be relevant not just today but what other, whatever other forms and venues and technology comes in the future.
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it's about process, not of anything else. that's why i would urge us to get this bill passed into law quickly. >> gentlelady's time has expired. mr. stanton. >> thank you very much, mr. chairman. i want to say thank you to our witnesses for spending your day with us and assisting this committee in this important work. back in early june i like all americans was shocked to find that the department of justice had secretly try to update e-mail records of multiple reporters and newsrooms like the new york times, "washington post" and cnn. it is frustrating to me your contact it's infuriating to be frank the department of justice under presidents of both parties has led to hunting expeditions into the file cabinets of news reporters. analysts, reporters serve a vital function in our democracy working relentlessly to keep our public informed. their work is tough, thankless, yet they in a day out they do the work. investigate leads, find a facts,
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and they tell the stories that need to be dealt, freedom of press that allows the american people to learn the actions of the government both good and bad, children of actions like the doj secretly surveilling reporters and our colleagues here in the halls of congress. it is free of the press that allows the american people to stay informed, stacy, to form their own opinions and to be better citizens. now more than ever we do need to safeguard the protections of the first amendment and this congress must do more to ensure reporters can do their jobs. ..
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>> followed by as a journalist is and what activities deserve added protection. responsible news organizations andwh journalists who are longstanding institutions of the press, but what about those others who may not fit the traditional mold? what about online blog or someone like the courageous young lady that filmed the murder of george floyd and won a pulitzer prize special citation because of her courageous acts? where do you draw the line about who would be covered by such a press shield? i'd open it up to any of the witnesses to answer that question. i know, mr. turley, you put some of that in your prepared testimony. at is overseeing your work. the media has changed dramatically and today, many bloggers perform many of the same functions as reporters. many reporters are looking more like bloggers. there engaged to the degree
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that they did so you see emerging and you have what are called net new users who today the polls show people now mix the sources of their media. internet and traditional sources. more people get their news from social media today the newspapers. so we have to as we talk about technology changing we also have to update our view of what a journalism is . this is not an easy task. i'm not contending this doesn't have problems. you can't make everyone a journalist because if that's the case then journalism means nothing. you have to have some way of distinguishing between what people do what i argued is it should be a focus on what their function is as opposed to how much they're getting paid for it . so ted koppel tomorrow could resign from the network and to be writing the samecolumns he did today but that means
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he's not a journalist ? under this law he would not be a journalist because he wouldn't be making any money at. that's obviously something we don't want to have an inherent flaw in the shield law. >> mister berg, you raised in your opening testimony the issue of blanket requests which i guess is a relatively new phenomenon and frustrating for you and microsoft and some of the other experiences . can you explain, talk to us about that blanket request. what it is and how we might be able to help you in congress to fix those blanket requests for information. >> blanket request like the one we believe yesterday, therewas another one that came in today . it's a secrecy gag order that prevents us from notifying customers not just as to a particular subpoena or a
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particular warrant but to all subpoenas, warrants and orders issued in the course of a particular case or investigation. what that highlights is the lack of adequate standards to get a secrecy order in the first place because that standard has to be particular that government should have to show that for any specific request or data that they can meet the standard, the strict scrutiny standard necessary to impose a gag but to say that you can do that for every quest, the most routine request for information and data throughout an investigation shows how this process is being. >> the judge yields that. >> you and thank you to everyone of you for beinghere . this is a heavy discussion we the people give our government great deal of
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power to protect our national security. these include the authority very sensitive information and to keep secret. and we have laws including criminal laws to make sure secrets sais stay secret when lives are definitely on the line. what i'm describing is how it's all supposed to work. government actors are given significant power and tools they are supposed to use to keep us safe. there given the weighty responsibility of keeping information so secret that nothing gets out that could put lives at risk but inevitably, there will be times when classified information is leaked to the press. you all know that. in these moments it can be hard to tell a brave whistleblower from an unpatriotic rental. and it's often only in the writing of history that we will be able to say whether or not a leak was in the public interest or a serious threat to our national security.
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so we have a complex set of rules and laws and ultimately courts are tasked with getting this careful balance just right. the right of pursuing justice protects our national security and also protecting the free press that is foundational to our democracy but the question before us is whether that system is working right now. or is it in need of repair? no one element of the system is the shoe law, state laws that were allowed reporters and editors to protect their sources. at least 40 states and the district of columbia have some form of shield law on the books including the state i represent which is georgia and i'm going to direct these questions to either miss burton or miss over lander. feel free to jump in. do these state laws. in their approach to providing protection from compelled disclosure and also into theextent that they do very , as this day by day
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approach adequately protected our journalists that have been engaged in first amendment activities? >> they do very asked the we previously mentioned. some states have a qualified privilege for everything you have to go through some sort of balancing test before you can get it. some states have an absolute privilege. most don't have an absolute privilege but they might protect that absolutely. there are variations but they do all provide some level, most of them provide some level of protection. the federal circuit have different standards and again you can completely depend on what circuit you're in. as to what its standard you have to put soap on them, the fact that there are varying standards creates great uncertainty on the part of the journalists and of the
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people who want to provide them information. to your point about national security go and to the degree that there is an investigation into something for some other typeof national security , they would probably be under the federal, under a federal court if not always and then you would be faced with the question of which your again, those standards do very. >> ms. burton, did you wantto respond . >> i wanted to respond to your first comment which is important regarding the balancing of national security interests because we haven't spoken about that. the pentagon papers case again appeared today makes notice of that where you have a judge was told that national security would be the result of the killing of many troops and he took a very strong look at all of the information and then determined that he couldn't be sure but he had to balance
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against other rights and so that balancing a court should look at these things carefully well whether it's in the shield law ornational security . that's the best you can get and there's lots of factors, a patchwork of statutes and we have to rely on the judiciary to do their job properly and require it of them . i would say on the state shield laws, we could use a federal privilege on the. i think that's the way in which we would begin to smooth it but every data is different and is very much a patchwork at this point. >> about time i want to thank all of you for giving us the detailed answers for these questions and i yelled back the balance of my time. >> the dental lady yields back, ms. escobar. >> many thanks to our panelists for being here today and for helping educate the committee and the public about what's at stake. i think it's as we continue to read more information i
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hope to know in for more information emerges that there were more members of congress, more members of the public and the media was privacy was. but maybe possibly more of that and it gets critically important that the public sees that we take action and that we are responsive to their right to privacy and that we are a country that honors freedom of speech and that honors in many ways the press so miss over land and would have a couple questions but i do have to on as the only member on this committee from the border who represents the border unity i have to respond to one of my colleagues who has chosen not to govern on this important issue today. and has instead chosen to heart rate and a donald from greg abbott circus that's happening in my state in texas for the record just
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that my colleagues for the record, apprehensions are or encounters rather, migrants are actually down this year when compared to 2019. may 2021 versus may 2019, numbers and counters are actually down. i think that what we're going to see on the floor today and tomorrow probably will be an absence of many of our republican colleagues who chosen to abandon their job here in washington dc in an effort to participate in a political stunt. back to the topic at hand and miss over lander, in some ways this conversation about the border for me speaks to the importance of protecting the fourth estate. during the last four years and the trump year, much of what we learned about what was happening in the immigration space in terms of family separation, in terms
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of some of the cruelest most abhorrent anti-immigrant public policy of our generation, we've learned through the media. i served in congress and was sworn in in 2019 and much of the information that i gained even as a member of congress came from the media and came from courageous journalists who had cultivated sources. who were shocked by what was going on around them and who were willing to shine a bright light on policy that america deserved to know. and from my perspective, i've been vocal about the biden administration continuing to empower the governments in the same way although i do want to recognize the president has made some really important statements but our doj is in some ways
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still engaging in the same way. because you work with journalists and publications, can you tell the public what we've risked if we continue to go down this road. their access to information, what you've seen and what lies ahead. >> thank you congresswoman. i think if there are limitations placed on journalists for that there is a fear that their confidential sources and work product is going to be accessed inappropriately, outside the rule of law. and you will see a real diminution in the flow of information. you really well. people will not agree. they will not come forward as forces of information for example around the border. you had borders sources within the government saying this is policy, this is what i'm seeing but you had the individuals who were affected by these policies really had run the risk retaliation, of
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being deported. and yet they were willing to come forward and say i am placed here, i am not able to make a living wage. i have children who've been separated and many of them were afraid of being identified and being deported. so what happens then is if they don't come forward the entire public loses that information. we all miss the things that we would like to know to make our decisions and decide who to elect, how to govern it and it's a real diminution of information available. >> it is and that's why we have to take action and i'm glad to see there's partisan support for that. and i look forward to working on the recommendations from this panel. thank you mister chairman and i yelled back. >> is jones. i'm sorry, ms. ross.
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>> thank you mister chairman thank you to the witnesses for your insight and for your patience. i'm second to last so if you are wondering when you were going to have lunch it's coming soon. as the state legislator, i work to promote transparency and responsible governance in my state of north carolina. and as the civil rights attorney i've worked on both fourth amendment and amendment issues and done a lot of work with the press association and to prevent state agencies and law enforcement from conducting unlawful searches so this is a very veryinteresting topic for me . our testimonies highlight the abuse of prosecutorial discretion and do pose important questions about how we can act to fulfill our duty to preserve democracy and arobust free press . unchecked prosecutorial power poses concerns for all americans regardless of their political perspective.
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and it's important that we usher in procedural and normative ships that will emphasize responsibility with regard to prosecutorial discretion and secrecy orders on the part of law enforcement. freedom of government accountability are the bedrock of our democracy. this committee has the responsibility to address and mitigate the potential prosecute the actual overreach. but my first question is about business mister burke. and it seems like business has been unduly burdened by doing the government work. so i'd like to ask you what on the incentives for service providers like microsoft are to challenge legal demands issued by law enforcement agencies when they wear their legally are getting a lot of these requests and why are you
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resisting it as much are? >> my title is corporate vice president for customer security and trust and i mentioned that because a lot of the work that i do with my organization is designed cynically to try to ensure that our customers can trust us with their data and their information and with their transformation to a new digital world. and so it's very important to microsoft as a company that our customers know that in these instances where we are subject to gag orders and we can't even tell them that their data is being demanded by governments that we ensure that we respond when those requests are truly valid and legal even then we will challenge the whenever we have a sufficient basis to those requests. we will check we can. and to try to limit the scope of these secrecy orders and
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what we learned that litigation just isn't as efficient tool to read the volume is to the abuse is too great and we need legislative reform. >> can you remind the committee about the business burden here, how many people are, how much the cost to every year to deal with many of these legitimate requests? >> i don't actually have those and could find those later specifically to address that.we have a very large team that responds to lawful access requests globally. it's more than 60,000 a year. as we mentioned in our testimony that 7 to 10 of these secrecy got that we get every day and we have to review those for sufficiency. we litigate eight or nine cases and each one of those
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is expensive and we've made progress through that litigation but it is a burden to have to manage this. all because government isn't doing its job in an appropriate way. >> i look forward to getting that follow-up information. this next question follow up on the definition of who the press is if we pursue the shield this overlap burt from the turley about it but that will. >> i agree with you should look at what a heart. are they regularly producing or writing or photographing or editing or involved with those people and putting news out locally, nationally, state and international importance to the public?
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could be a small public, could be a large public and around the edges, whatever definition you come up with there will be questions and i think then there have always been questions and that will be something a court will have to look at the statute and say what does this person fall under or are they not so i would hope the definition of journalist doesn't tie us upfrom not getting a shield law . >> the time of the ladyhas expired, ms. jones . >> thank you mister chairman for convening a full judiciary committee to examine what we can do to prevent abuses like the trump administrations secret seizures of data from the accounts of intelligence committee chairman schiff and numerous journalists. the department must act faster to investigate, expose and and these abuses or it is long past time for this department to right thewrongs of the last one . i worked for the justice
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department early on in the obama administration and i understand the integrity of the department is important. that is exactly why this justice department's reluctance to make a clean break from its predecessors misdeeds is so misplaced. dangerous for the purpose is to repudiate the notion that the doj was donald trump's personal attorney, not to provide him and his policies pro bono defense. trumpet ministration may not have been the only administration in our nations history to engage in these abuses but it must be the last so i look forward to working with everyone on a bipartisan basis for bipartisan legislative solutions to the challenges we face. i want to focus in on something that a number of witnesses mentioned earlier and what his been reported over the past few weeks. secrecy orders have prevented the councils of the targeted media companies from sharing
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information with their clients and clearly these orders strain the rules of professional responsibility and attorney-client. as far as exchange witness, but i'm. is there anything you'd like to add about this problem . >> i do want to say that letting somebody at the media organization know about the attempt to get there material is better than not letting anybody know so the answer is not to not tell them but it really does create a very very difficult place for the attorney. it creates problems with their relationship with their clients . it's a corporate issue. it creates issues when you can't tell the ceo or the boss or the chief editor. it's really just untenable frankly and it's not a solution to the secrecy orders to tell just one lawyer and gag them from telling anybody else. it also is frankly a prior restraint issue and creates and really should be looked
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at like my colleague said with unrestricted scrutiny. if you can't stop the new yorktimes from polishing the pentagon papers , you should have the same standards before you limit their lawyer from telling theother journalists about request . >> what is your perspective on how these greasy orders directed at the attorneys who represent journalists and media organizations can or compromised the attorney-client relationship. >> thank you for the questions. i think the statutes that you are all getting closer to drafting here would create a separate cause of action immediately built into a court to vacate that proposed order for the attorney is gagged. i have to say that i'm not sure i agree with miss overland or that it's better that someone in the organization knows . i think it is so corrosive what that occurs so i would statutorily have a separate cause of action that would
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give the attorney and the business side of that operation the opportunity to challenge it . >> i just want to string together a few basic but vital concepts from the course of this hearing. miss overland or there is no exception to the first amendment for legal organizations, right ? >> know nothing in the constitution exempts investigations from the fourth amendment protection against unreasonable searches and seizures . that's what i learned as well. nothing in the constitution exempts investigations from the fifth amendment guarantee of due process. >> that's correct. >> as far as our rights are concerned a leakinvestigation is like any other yet from what we've heard today what passes fordue process these matters is anything but i want to ask a question , he didn't notice .i want to review the notice process with you.
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subpoena is issued. like microsoft and he is not? >> that's correct. >> that extend indefinitely, any notice or the person data . >> that's correct, there is no requirement that government notified. we always do the secrecy order is expired. >> even when there's no conceivable risk that notifying the recipient could interfere with an open investigation or delay of trial . >> this bush. i said mister bush. thank you for convening this hearing. the surrounding issuance of
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electronic surveillance and workers is deeply concerned in many ways every actor implicated from the justice with which in this case of persecution of protection. for the department without any transparency the legislators who have grown their hands up and allow the doj to transgress without any accountability and trade. while it is shocking to hear the doj was engaging surveillance of practices, the staffers and their families is not an anomaly as a professor and activist i know firsthand how invasive law enforcement surveillance can be. it's for this reason i have been vocal in my opposition to doj's likability is available for americans especially bragging about protesters who been sounding the alarm on this issue. the department's ability to surveillance americans exercising their first amendment right to protest has hurt the interest that has allowed the department to
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surveillance members of this body. companies like apple and others are then left to hand over the records at their disposal, betrayed the people who use their product in this instance apple complied with the doj demonstrating the thorny position of tech companies balancing their customers online activity thiscountry's chief law enforcement agency . mister burt, it's been reported that some data as tallied the government electronic orders and gag orders. the company's ability to challenge the orders is limited it is not assured. mister burt, how does the use of secrecy orders infect investigations against black and brown communities? >> as you point out you always have to be aware of the fact that government as a majority institution can sometimes disproportionately affect those in minority positions or have less
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representation and therefore our constitution and the constitutional rights on which our country is founded are designed to protect those minority interests those minority rights . especially when you have agencies that's able to act secretly without creating adequate record to be able to challenge and review those secrecy orders and understand the basis to ensure their only issued when absolutely essential in the nationalinterest , there is almostcertainly going to be disproportionate impact of that secrecy . >> thank you. can you tell me how do you decide which orders to tally? >> in most cases we don't know enough because we are provided so little information. we don't know enough to know when we have an opportunity to challenge. we challenge those that on their face inadequate or clearly not legal and in most cases we find prosecutors
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then agree and withdraw that. that's a big percentage that we challenge really also challenge those that for other reasons we think we can negotiate a different approach on by the law enforcement agency but then we have those relatively rare instances when we know enough or we can discern enough to know that we have a factual basis for litigating thescope of a secrecy order . that unfortunately is too rare and that's another reason why deferring this to the private sector, to the cloud providers is not a workable solution. it's why we need to have a legislative solution that creates a greater burden on law enforcement and imposes on the judiciary the obligation to ensure that appropriate standards are met and a record of that is maintained. >> also considering the sheer volume of orders a provider
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like microsoft can seize, how burdensome is the requirements provided to the retirement if and when each order there is a challenge. tell us about that. >> i was asked that question earlier and i don't have specific data that i can provide about the nature of that burden. we take it very seriously. we have a large team that's devoted to this effort and that is constantly looking at how we can protect our customers rights and interests. and so it's a significant investment by microsoft in doing this work area and i think the point for the committee though is not about the burden on microsoft. no oneis going to be too sympathetic to the fact that my company has to spend money on this problem . the problem is you should not be deferring to the private sector that responsibility. because it could be, it could vary from company to company how seriously they take this and we have only limited visibility and limited legal rights to challenge these
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secrecy orders. we explore those rights as much as we can. you can't count on every provider doing that to the same degree or to the same extent and that's not where enforceability of these important rights should rest . >> the gentle lady time is expired. this concludes today's hearing. thank you to ourdistinguished witnesses . without objection members will have five legislative days to submit additional questions to the witnesses for the record. without objection the hearing is adjourned.
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[inaudible conversations] >> tonight on booktv, biographies on conservative intellectual thomas sowell, the late supreme court justice bader ginsburg and former first lady nancy reagan. booktv on c-span2 starts tonight at 8 p.m. eastern. ♪
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