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tv   Hearing on Curbing Justice Dept.s Power to Access Private Communications  CSPAN  June 30, 2021 11:04pm-2:31am EDT

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>> can begin the public streaming of this hearing. 5, 4, 3, 2, 1. the house committee will come to order. the chair is authorized to declare recesses at any time. we welcome everyone ted this morning's hearing -- everyone to this morning's hearing. potential legislative responses. before we begin i would like to remind members we've established an e-mail address and distribution list dedicated to circulating exhibits, , emotions or other written material, materials that members may want to offer as part of our hearing today. if you'd like to submit materials please send them to the e-mail address that has previously been distributed to your offices, and we'll circulate the materials to members and staff as quickly as we can. for those in the room, current guidance on officer guillotine position is that individuals who
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are fully vaccinate for covid-19 did not need to wear masks or maintain such discussing. fully vaccinate interviews may choose to continue wearing masks based on their specific risk considerations that if you're not fully vaccinated the office of the pin position requires you to wear a mask and maintain six feet of social distance. finally, i ask all members of those in person and those of you remotely to mute your microphones when you're not speaking. this will prevent feedback and other technical issues. you may i mute yourself wedding you seek recognition. i will not recognize myself for an opening statement. on may 7, 2021, the "washington post" reported that the trump administration secretly obtain phone records and sought e-mail records of certain of its reporters. later reports showed that the department similar attempt to access the communications records of a cnn reporter and
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multiple journalist at the "new york times." on june 10 it was reported that the trump administration have also requested the records of multiple members of congress -- [inaudible] -- their family members and congressional staff. on june 13, the "new york times" reported that the trump administration had sought similar records from accounts associate with former white house counsel, don mcgahn. even if that was the end of the story, if all the department had done was target these reporters and these members of congress this one time, , we would have reason to be concerned. a free press is vital to our democratic system, and the constitution grants the extraordinary protections to the official communications of members of congress and their staff. that of course these reports do not constitute an isolated incident. the department depara long history of targeting reporters and misusing its surveillance authorities to
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bypass classic, basic constitutional protections. president nixon's justice department tried to silence the publication of the pentagon papers. president bush justice department after the reporters without -- about to expose the wireless surveillance programs. president obama's justice department went so far as to charge a reporter as a co-conspirator in violation of the espionage act. president trump's justice department appears to target reporters and members were focused on investigating russia's interference in the 2016 election. and now we know that president biden's justice department sought to renew at least some of the secrecy orders associated with these cases. in each of these cases the department took advantage -- of outdated policies that make secrecy the norm, not the exception to the rule. in fact, these cases appear to
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have targeted journalist, democratic members of the house of congress and the former white house counsel. we have no immediate way of knowing how big the problem is because each of these cases is accompanied by a doj request judge imposed gag order that prevents anybody from talking about them for years. now we asked the department to explain the extent of these troubling cases. this ring is not about that investigation. at least not directly. today the committee is going to focus on the related policy problem that has troubled members on both sides of the aisle, namely that technology is that's outpaced the law when it comes to the government demanding your data from a third-party provider, and that the gag order the company those demands have become standard practice in cases with timely notice would make far more sense. the 21st century federal prosecutors no longer need to show up to your office. they just need to raid your virtual office. they do not have to subpoena
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directly. they just need to go to the cloud. rather than providing americans with meaningful notice that their private electronic records are being access in a criminal investigation, department hides behind its ability to ask third-party providers directly. they deny american citizens, companies and institutions the basic day in court and instead they gather the evidence entirely in secret. just because it is easier for prosecutors to seek sweeping amounts of data from the service providers does not mean that they should be allowed to do so. this committee has long recognized the justice department's need to investigate the unauthorized disclosure of classified information and it supports those investigations whenever they're probably predicated. our responsibility to combat these however is not carte blanche authority to engage in sweeping surveillance of american citizens, businesses, newsrooms and universities. it was not tolerable after 9/11,
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and it is not acceptable now. if history eraser reporting has taught us anything, it is that we cannot trust the department to police itself. it is imperative that the committee fulfill its role and ensure our laws are keeping pace with rapidly changing technology. we need to guard against future overreach of federal prosecutors by implementing reform now. i think i would visit for being here today. on the fourth to hinder ideas and whatever reforms we should consider moving forward and i look forward to working with mr. jordan as a republican colleagues on this matter. i now recognize our ranking member of the judiciary committee the gentleman from ohio mr. jordan for his opening statement. >> thank you, mr. chairman. mr. chairman, attorney of america the government should not spot on its citizens, plain and simple. in limited cases weren't surveillance is necessary, necessary to prosecute crime it should be a high burden come off very high burden for the
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government in getting approval to do so. what came out of the church committees investigation and the fbi's rogue actions of the middle of soy century provided roadmap for writing the wrongs of domestic surveillance. an entire apparatus of checks and balances was set up to hold government accountable when it sought to invade the privacy of its citizens but this process again is now in need of reform. the laws are opaque, and equipment easily scored our system of lawrence, subpoenas and national security letters can seek records and other tools that the government disposal must be brought in line with constitutional considerations of basic due process. we tried to make progress in recent years. with much work left to do. for instance, usa freedom act made significant improvements to the patriot act to save our civil liberties but many deficiencies remain. like the simple fact that the obama fbi spied on president trump's campaign, use the dossey been it be false at the time to be able to surveilled the activities of carter page.
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it's a computer overall by the something is committee should again take up there, recently talk of carlson stated on the show the other night his plate that in a self-monitoring his communications while the nsa said in a carefully worded statement, i encourage all of you to read that, that mr. carlson was not the target, not a target, they did the night that they had reviewed his communications. additionally reforms to the electronic communications privacy act passed the house in two recent congresses only to stall in the united states senate because most of our colleagues know it is a cornerstone of law governing america's privacy with respect to e-mail and other electronic data. the problem is the thoughts written in 1986 and did not contemplate not even close to, but all the facets of our digital age today. the result is been a patchwork system of demands from law enforcement to technology companies in a constitutionally dubious fashion fair courts are split on how to interpret parts
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of ecpa in the subject allows for data to be swept up by one for the agencies without once. another area we can work together is on protecting the publics right to know. an informed public is critical to the well functioning democracy. when the department of justice prosecutor journalist for a permanent gag was that people cannot speak out about the governments actions, our democratic values are underlined. there are bipartisan bills that would protect journalists sources. this legislation was authored by vice president pence when he was a member of the house. we should revisit this legislation and also measures led to gag order so the public can be as informed as possible. should be incredibly rare in the united states that people are not allowed to speak freely about the governments actions. i look forward to today's discussion and, frankly, like the chairman said i'm optimistic about an opportunity to work with our colleagues on the other side to make some approving and all these areas. with that, mr. chairman, i yield back. >> thank thank you mr. jordt objection all other opening
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opening stint will be included in the record i will now introduce today's witnesses. eve burton is an executive vice president and chief legal officer of the hearst corporation. prior to joining hearst, ms. burton served as vice president and chief legal counsel at cnn which oversaw all legal matters relating to news and other programming on cnn networks and websites. previously she was a deputy general counsel at the "new york daily news" picture also clerked for judge sand and the united states district court of new york. ms. burton holds a ba from hampshire college and a j. d. from columbia law school. tom burt is corporate vice president for customer security and trust at microsoft corporation. among his departments many responsibilities he's responding to law enforcement requests for access to data and managing microsoft's government clearance and national security compliance. mr. burt joined microsoft in
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1995 and has helped several leadership roles in the legal affairs department. department. he received an a.b. from stanford university and a j. d. from the university of washington school of law. jonathan turley is the j. b. and maurice c. shapiro professor of public interest law at the george washington university law school. after previous position teaching at tulane law school, professor turley joined the gw law faculty in 1990 in the 1990 he became the youngest chair professor in the schools history. in addition to serving as counsel in a number of significant cases, he has written numerous articles for variety of law journals and national publication. professor turley earned a ba from the university of chicago and a j. d. from northwestern university school of law. lynn oberlander is of counsel with the law firm of ballard
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spahr llp. previously she served -- excuse me -- previously she served as in-house counsel to numerous broadcasters publishers and digital platforms. she was a senior vice president and associate general counsel for media at univision communications while also serving as executive vice president and general counsel at univision subsidiary multimedia group. privacy she was the general counsel for media operations at first looked really works and before that she was the general counsel of the new yorker which also wrote for new on media law topics. earlier in her career she worked at fords and nbc. ms. oberlander received her ba from yale university and a j. d. from columbia law school. we welcome all of our to distinguish witnesses and we thank them for participating today. i will begin by swearing in our witnesses. ask eyewitnesses in person please rise in raise your right
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hand. i asked i asked that are remote witness please turn on her audio, make sure i can see her face and raise your right hand while i administered the oath. [witnesses were sworn in] >> let the record show the witnesses have answered in the affirmative. thank you, and please be seated. please note that each of your written statement will be entered into the record in its entirety. accordingly i ask you summarize your testimony in five minutes. to help you stay within a time limit there's a tiny light on your table. when the light switches from green to yellow you have one minute to conclude your testimony. when the light turns red it signals your five minutes have expired. to our witnesses appearing virtually, there's a timer on your screen to help you keep track of time. ms. burton, you may begin. >> thank you. chairman nadler, ranking member
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jordan, members of the committee, good morning. my name is eve burton. i'm an executive vice president of the chief legal officer of the hearst corporation. i am pleased to appear before you today to discuss this critical issue. this is not a partisan political matter. it is not limited to the press by the congress. it is an american issue, and how we approach it will tell a lot about what kind of country we want to be. i want to acknowledge the obvious. there is a natural tension between prosecutors interest in exercising their investigative power and the individual interest in protecting their constitutional rights. and these are difficult interests the balance. and that is the key. they must be balanced fairly and consistently. our constitutional system requires that due process is accorded all citizens through the application of proper procedures to protect
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fundamental rights. with rare exceptions these matters should not be decided in secret. recent revelations about the doj's use of its investigative powers to secretly obtain citizens communications records directly from telephone and e-mail providers should be of great concern to every american. we all rely on these services in our daily lives. while we do not know you get all the details why are how the duty when about this collection,, enough facts emerged to suggest congress should consider legislation to ensure appropriate balancing an adequate protection of individual rights in the future. congress has stepped in before to provide legislative protections for important rights as it did with the 1980 privacy protection act, the ppa established strong procedures for news organizations to challenge search warrant newsrooms which were until then planned and executed in secret. congress should do more,
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especially where third-party key medication companies are concerned. that is the principle unaddressed problem in 2021. the aim of my test when she share my views on what should be central components of any legislative reform in this area -- my testimony. my written submission provides an expanded discussion of these necessary pieces that i will summarize them here. the single most important step that is steeped in our shared american value is to recognize the importance of due process and procedural safeguards. this could be done by codifying something like the doj subpoena guidelines. they layout procedures to protect fundamental press rights from investigative power. this is a good baseline for legislation to address today's problem. but the guidelines are just a starting point and we must go forward, further. to that end a critical second step is to recognize the necessary goal of article i
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judges in balancing competing interests. the doj should not be prosecutor, judge and jury when he comes to citizens fundamental rights. the department's of what has an inherent conflict here a third step is the establishment of procedures that specifically recognize the realities of modern communication technology. the same protections must apply whether the information is sought in an office style or on a cloud server across the country or the world managed by google, microsoft, apple or verizon. vision and theoretical issues. your practical issues. we extend procedure protections to record stored with cloud companies or else we may never know when our records are seized by the government. presently, the protection of our constitutional interest are in the hands of middlemen have no incentive to battle with the government on behalf of customers or citizens. to the contrary, in my experience some communication
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companies have historically seen as their responsibility to assist the government in obtaining what it wants. finally, legislation should be clear, there is a presumption against secrecy orders and the government must bear the burden of overcoming that presumption. the pentagon papers case decided exactly 50 years ago today, reminds us that prior restraints are rarely if ever constitutional permissible, even when the government invokes national security concerns during wartime this is the constitutional presumption against which gag orders must be judged. i would like to close my testimony by really doesn't reiterate my belief that much my concern about hospital abuse of an investigator power can be addressed in a way that should not be controversial or interfere with legitimate government work. instead i believe we can all agree many of these concerns can be addressed with clear procedures, had established a presumption of openness, with
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notice and an opportunity to be heard as the norm and expectation. this ensures the difficult questions about the balancing of constitutional interest that must occur will be properly decided by our great and independent judiciary. i look forward to our discussion today and thank you all for the opportunity to participate in the sharing. >> thank you for your testimony. mr. burt. >> chairman nadler, ranking member jordan and members of the committee, my team at microsoft is responsible for responding to government data demands so i appreciate the opportunity to testify on the need for legislative reform on secrecy orders here while the recent news about secrecy, secret investigations shocking, most shocking is just how routine secrecy orders have become when law enforcement targets and americans e-mail, text messages or other sensitive data stored in the cloud. this abuse is not new.
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it is also not unique to one administration and is not limited to investigations targeting the media and congress. secrecy orders are too often used for routine investigations based on a cursory assertion that the government has met a statutory burden. the justice department's own template does not even require facts, justifying the need for secrecy. instead, the template merely asserts that any disclosure would seriously jeopardize the investigation for a variety of boilerplate reasons. it's no surprise then that throughout the obama trump and biden administration's up to a third of all legal demands we received from federal law enforcement include secrecy orders, up to 3500 in just one year. these are just the demands on microsoft. as the demand is likely served on facebook, apple google twitter and others and you get a frightening sense of the mountain of secrecy orders used
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by federal law enforcement in recent years. as has been pointed out this is very different than investigations conducted before the advent of cloud computing. if law enforcement what her to get access to data on a computer or a network in your home or your office, they would have to update and serve a warrant in order to enter your premise and collect evidence. if law enforcement wanted to secretly search your physical office it had to meet the heightened standards required to get a so-called speak in peak war. however, today if law enforcement wants to secretly search your virtual office in the cloud, they just serve of boilerplate wart and secrecy order on your cloud provider that prevents notice to you. microsoft scrutinizes each legal demand we received to protect our customers interest. we often challenge unnecessary secrecy orders through negotiation or litigation in court. some examples, just except some of the recent abuse we've seen
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our secrecy orders with the account holder was a victim, not a target, of the investigation. or where the investigation targets just one account at a reputable company government or university but the secrecy order bars notice to anyone in that organization. or whether the given us equally demented in order to evade an ongoing discovery dispute. while microsoft has long successful challenge the secrecy orders in court, litigation is no substitute for legislative reform. we worked with other technology companies and have reforms we have proposed that permit secrecy orders for those rare cases where they are truly necessary. we have four primary recommendations. first, congress congress should end indefinite secrecy orders for good. we suggest they last for 90 days with a 90 day extension if proven necessary. second, congress must in
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rubberstamp secrecy orders and require that judges engage in a written analysis of the relevant facts. third, court should apply strict scrutiny when issuing an order or instead only after it has been challenged. finally, congress should codify a statutory right off the rising cloud providers to challenge harmful secrecy orders in order to protect their users rights. let me be clear. secrecy orders are sometimes necessary such as to investigate cyber attacks come to keep our children safe from online exploitation or to prevent terrorist attacks. we don't suggest that the government must meet an impossible standard. we are asking for a meaningful one. notice to targets is an important safeguard for our constitutional rights. reform is necessary to protect the fundamental values that are the bedrock of our democracy. without reform, abuses will continue to occur, and they will occur in the dark here thank you
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for your time and attention. >> thank you for your testimony. professor turley, you may begin. [inaudible] >> thank you, mr. chairman, ranking member jordan, members of the de jure committee. thank you for inviting me to speak today. the reported targeting of reporters and members of congress in the recently investigation, the serious matter that cuts across areas of constitutional statutory law. it also cuts across partisan lines to unify the public and the congress and seeking answers to these difficult and troubling questions. today's hearing occurs on the 50th anniversary of the "new york times" publication of the pentagon papers, an act that triggered one of those consequential legal matters in the history of this country, a bow that ultimately help define the rights of the free press. it also reminds us that drawing
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the line between national security and press freedom continues to evade clear demarcation. indeed, it was 15 just go that i testified before the house intelligence committee and called again for the enactment of a federal shield law. it's a reminder of how this area remains dangerously ill defined and uncertain for reporters. particularly with the growth of new technology that is made a mockery of many of our protections. this is this is a difficue there's compelling arguments on both sides by the department of justice and by the media. courts have chosen what is often presented as a zero-sum game. you can see that in the cases i discussed in my testimony. so this is a very serious matter. we don't know all of the facts but it cuts across and raises issues of separation of powers,
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the free press and privacy. i would like to focus on where i ended 15 years ago, and that is on the necessity of a federal shield law. but i will note my testimony identifies six areas that i believe should be explored in light of this controversy. frankly, for those of us who have advocated for the free press and for free speech, this is what yogi berra met when it was all déjà vu all over again. we have seen this in the bush administration. we have seen in the obama administration. we've seen in the trump administration. we sought at the of the biden administration. it's foolish to believe that anything is going to change. in fact, that i believe is the definition of insanity, doing the same thing expecting a different result. the fact is we rely on self regulation by the department of
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justice. they have not met that burden. they have failed over and over again. it is not partisan. it cuts across parties and administrations. it is a record of failure that puts at risk one of the most precious rights, one of the most essential rights in our constitutional system, and that is the free press. the six areas i laid out include concerns over the authorization in this matter, what i call reverse engineering of leak investigations, gag orders, phishing in the cloud which is a major problem, national security letters and defining journalism. but i really would like this committee to begin and end, and this luke messer surprise to the chairman and the ranking member, that i invoke james madison. as a medicine is, i think most things begin and end with james madison. madison said most famously popular government without popular information or the means of acquiring it is but a prologue to a far tragedy or
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perhaps both, knowledge will forever govern ignorance people who mean to be their own governors 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 tyranny. i won't address the case law that i i had discussed but i l note this year the state legislatures have been far more protective of the free press then this body. there are 16 states in the district of columbia that of absolute privileges for the media. there are 24 states that have qualified privileges for the media. other states that don't have those shield laws actually have common-law protection for the media. the free flow of information act of 2017 is a great platform supported by both parties and it is time that we move that to enactment.
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i am vertical aspects of the law even though i would take that long right now in a heartbeat, to try to gain that protection for the media. but i note it could be strengthened with a greater explanation of presumptions but also i believe it has to be rewritten on the definition of what constitutes a journalist. journalism has changed in this world, and the definition in the law is frozen in journalistic amber. that is, age is out of date. i would suggest examining that. i will only end with this as i did 15 years ago. we cannot afford the consequences of leaving the immediate expose the way we have. that will leave not just been exposed by the public in the darker it will be as madison said a prologue to a far worse tragic or both. we can avoid both and we need to pass this law. thank you. >> thank you for your testimony. ms. oberlander, you may begin.
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>> chairman nadler, ranking member jordan, and members of the committee, thank you for inviting me to testify today. we have learned in the last few weeks at the justice department has secretly sought the email and telephone records of eight journalist who worked for three media companies in what appears to be a purposeful attempt to evade the protections of the law and of the department's own guidelines. as a longtime media lawyer who is worked in many newsrooms and with hundreds of journalists, i can report that these actions have had and will continue to have a profound and disruptive effect on the ability of journalists to practice their craft and report stories of vital public importance to our democracy. by sending secret subpoenas to the service providers for the new york times, the "washington post" in cnn and then by gagging the recipients the department of justice performed an end run around the protections for the news media provide in both the privacy protection act of 1980, and the attorney generals own news media guidelines.
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had the subpoenas come directly to the media organizations or if they have been notified at the time of issuance, the media organizations would've n able to challenge them in court. instead, and events of the prosecutors were seeking three-year-old records for publicly recommendation the department justice was able to convince a magistrate judge in at least one case that informing the journalist of the request would quote seriously jeopardize the ongoing investigation by giving targets the opportunity to destroy or tamper with evidence. congress should now act to more fully protect the rights of journalist to bring crucial information to the public. the audible members of the judiciary committee should consider several legislative enhancements -- honorable -- the strongest and simples way to protect the rights of journalists to report on the actions of government and the rights of the public to receive such reporting would be to pass legislation banning governmental inquiries into journalist horses
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there as attorney general garland has now said he would strive to do. this would be the simplest response and would demonstrate the importance of the free flow of information to the public. even in the absence of such a ban there are other ways to improve protections for journalistic process independent judicial review of any prosecutorial attempt to access journalist material is crucial and ensuring that its astringent review that appropriate ways the public interest in newsgathering with the government's interest in covering the source of essential to protect the important first amendment interests that are at stake here. while the current attorney general guidelines are not perfect, and crucially are not enforceable by journalists, they provide an excellent starting point and looking to strengthen the protections. the guidelines recognize that quote freedom of the press can be no broader and the freedom of members of the news meech investigate and report the news, and note the subpoenas and search warrants are extraordinary measures, not standard investigatory practices. to this end all such process
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maybe issued on with the approval of the attorney general or another senior official and only when the information sought is essential to successful investigation. after all reasonable tense up and made to obtain information from alternative sources and after negotiation and notice with the effective members of the news media. these protections should now be statutorily enacted. the government must provide notice to the news media whenever information is sought, whether it's directly sought from the media itself or from their service providers. it is an accident of technology the count is able to bypass the effective journalistic of a of e media company maintained its own e-mail servers it would be impossible to seek the records without notice. notice provides an opportunity for the effective media to seek judicial review from an article three-judge and to challenge the government rationale for seeking information. the department of justice believes that prior notice and negotiation is a possible in certain cases, particularly where it threatens grave harm to national security or the
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investigations integrity. in such extremely limited cases congress should consider legislating a duty of candor, an affirmative obligation to notify the third-party providers that it is seeking journalist materials and not to hide the request within a broader request as was apparently the case with a subpoena to apple for information about members of congress and their staffs. congress should also consider requiring confidential advocate to represent the neediest interest before the court considering the application for the subpoena, the court order or other prizes. this would not be unique. the usa freedom act permits a similar type a special advocate in proceedings before the fisa court. and finally this moment presents excellent opportunity to pass strong statutory shield law that would codify protections for journalists and mandate a consistent test for when if ever the government or private individuals can seek journalistic work product and the intervening of coverage associate today's shallots against flicking stand between the state and federal courts
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leads to inconsistent results and prevented journalists from adequately informing their sources of the risks they face incoming phone with crucial information for stories of public importance. truly afford the state to our tripod government, the path press protected by the first amendment stint as a essential bulwark of a constitutional arrangement. congress can help the 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 with questions, and i will recognize myself for five minutes. before i begin my questioning and without objection i will place the following into the record. a letter from over 20 civil society groups calling for reform, a statement from frederick j ryan junior, editor of the "washington post" come statement from senior vice president general counsel and corporate secretary of "the associated press." without objection. the technological landscape has
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changed dramatically since congress enacted restored communications act in 1986 mr. burt how is they can become more and more reliant on section 2703 electronic surveillance orders since the passage of the store communications act of 1986? >> government has become increasingly reliant on the secrecy order since that time, and that is been largely the product of the investment of technology. at that time the cloud didn't exist and the substantial extent to which citizens, organizations, corporations and society in general stores their private communications, their corporate records in the cloud, that didn't exist. and so today what we have is a world where access to the information and application of secrecy order enables law enforcement to conduct these investigations and get access to
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citizens, organizations, corporations records without notice to the organization or the individual whose records are being obtained. that is a dramatic shift in the way law enforcement can and should conduct its operation. >> ms. burton, what are some examples of cases what you think the governor would not need to rely on section 2703 orders but, in fact, does? >> i would point the committee to the palko case which was a series of stories by the "san francisco chronicle" on sports and steroids with the government had a two-party process to get information. there are going through the courts and the didn't like the results they were getting so they turned around and they went back to its service providers and it's not the telephone records of the reporters in court without any notice to us. that order is still sealed. we have no knowledge whatsoever with the telephone provider argued in the courtroom. a perfect example of a
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relatively routine case the can was embarrassed about what happened in the grand jury and what came out of the grand jury, and it just wasn't necessary. usual constitution -- and the courts balancing those in with notice to the support was a perfectly fine way to proceed whether they want a lost the case, it was there under our constitutional scheme. there is an example of what it was just easier for the government to get what it wanted and it got it, and it acted in accordance with process that's just not dispensable in this country under our aversion to secrecy, as representative jordan spoke about when he started with you in this proceeding. >> mr. burt, same question. >> in addition to the examples that i described in my testimony let me offer a very recent example. we received just yesterday i demand for access to data of a single employee of a major
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american city in an investigation that is nothing to do with national security. and they gag order therefore prevents us from notifying anybody in the city cannot its mayor, not its city attorney, that an employee of theirs has had their information taken by the government. and more importantly, we also saw with this particular gag order a new trend or an example of the new trend, troubling trend where observing, which is this gag order wasn't just about the subpoena. it was a blanket gag order that purports to cover all subpoenas, all warrants, every process in that entire investigation, in that entire case. all based on one boilerplate submission to a magistrate. that's the kind of -- you know, our law enforcement agents work hard to do very important job. the laws that currently exists
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enables them to act this way out of expediency and convenience, and that's why we need reform. >> thank you. if the recent reporting is true, gag orders prevent council within these target media companies from sharing information about the request for information with infected reporters. this dynamic strings the attorney-client relationship to say nothing of its effect on a free press. ms. oberlander, does the department's use secrecy orders violate due process protections, whitey think the department default to section 270 feet and secrecy orders in this way? >> i absolutely and does violate due process. creates incredible stress for the media organizations and for the lawyers at issue here. the in-house counsel who were aware of the request, but who were not allowed to deal their bosses, their supervisor or the journalists or even the newsroom that these requests had been made. it puts them in adequately
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difficult position, as an shows many of you are members of the bar you can imagine when you cannot tell your client crucial information about what is being asked of them and going on. the other big problem is that when you have the secret orders, you can't negotiate them. i mean, if the order had come through in the people were allowed to know about it than they could go back and say you don't really come even if you want this information which we don't think you should have, you don't want this other information. you don't have, we want to make sure you are not getting other communications that may show or other sources or other work product or other confidential investigations. it really makes it very, very difficult for in-house counsel and outside counsel to work effectively with the government and to protect their first amendment rights. >> thank you. my time is expired. mr. jordan. mr. gaetz. >> we are on a roll, mr.
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chairman. last week you brought big tech to you. this week brings the department of just a few. my heart fluttered to think what might be an annex committee. mabel we reform flies and continue the bipartisan momentum. i believe the department of justice and intelligence community should threaten or spy on members of congress, our staff or the press for politics. president biden believes the same thing in response to questions from cnn caitlin collins president biden committed he would not allow the weaponization of his government against the press. chairman nadler agrees. as matter-of-fact chairman nadler stated and encoding directly, congress must make it extraordinary difficult if not impossible for the department to spy on the congress or the news media. we cannot rely on the department alone to make these changes. when i saw the reports about members of congress offices being targeted, mr. swalwell,, mr. schiff, i was the first and
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the only republican to say that that was improper. and more of my colleagues should join me. it was easy to believe that the department of justice would do that to the democrats because they threatened to do it to others. mr. chairman, i seek in its consent in into the record fox news publication of september 27, 2018, rosenstein launched hostile attack in may against republicans over russian records. >> without objection. >> rosenstein threatened a member of republican staff with criminal process if you did not bend to what mr. rosenstein's wanted at the time. so it's not hard to believe. the most-watched cable news host has been stating for the last several nights that the nsa has been monitoring his communications. an amazing that the nsa has issued a statement that is so couched, it is functionally an
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admission. let's review. the nsa says on june 28, 2021, tucker carlson alleged the national security agency has been quoted monitoring electronic communications and is planning to leaked in an attempt to take issue off the air, closed court. this allegation is untrue. which allegation? the statement continues to tucker carlson has never been an intelligence target of the agency and the nsa has never had any plan to try to take his program off the air. epic this statement continues, but what's interesting is there is no denial that they were monitoring tucker carlson, even if he wasn't the target. we saw this exact playbook with carter page and donald trump where an order to try to access information from one person, the intelligence community would utilize the authorities to go after someone else to try to ensnare their true target or i think that's why they're going after democrat staff, to try to get to mr. swalwell and
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mr. schiff. i think that's why they were going after republican staff come wider going after carter page to get to trump and i think there's probably somebody in tucker carlson orbit that nsa was monitoring and is no denial that they cut tucker carlson and that monitoring. by the way there's no denial that there was a plan to leak the information to try to in somewhat embarrassed tucker carlson here to only denial is they work expressly trying to get his show off the air. and it's not like the nsa has never lied to us. i mean, we were told that there was no bulk collection of america's data. it turns out there was bulk collection american stayed and no one was ever held to account for that. the chairman is right, and professor wu is right, too. we cannot count on these people to police themselves. and so it's my expectation that the needs to be greater review. so mr. chairman i'm inviting you
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to continue this bipartisan, bipartisanship come join in calling for inspector general investigation into any monitoring that the nsa or any other element of the intelligence community is engaged relevant to tucker carlson. these denials, he's couched denials raise more questions than to provide answers. and by the way, if democrats don't do this, if you only outraged when your members and your staff and the press that's close to you and that epiphytes your messages is targeted, and we never are quick to solve anything fact be déjà vu all over again as professor turley said. i'm equally outraged when the target the people i like and the people i don't like. when the target the press that i watch in the press that i despise. and i would greatly seek any bipartisan agreement. last week we on such a goal. we brought big tech to account and my hope is we can join together against and address this legislatively but specifically with the call for
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inspector general investigation into these allegations. i yield back. >> the gentleman yields back. ms. lofgren. >> thank you, mr. chairman. you know, as i listen to these very skilled and knowledgeable witnesses, it occurs to me we are being asked to provide additional protection to the press because of the first amendment here but he seems to me a real focus, not the the press doesn't need additional question under shield laws, ought to be on the fourth amendment. and i think what's again we are called ask whether the fourth amendment is really still alive in the digital age. the work requirements and the guarantees against unreasonable search and seizure really, they are foundational rights and they're not just to the press and the not just to members of congress. they are to every american.
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i do believe that the situation we have here is an end run on the protection of the fourth amendment that is supposed to provide to every american. it's true that if the information sought was on a person's desktop, a warrant would have to be issued. there wouldn't be a gag order. they would be notice. the fact the information stored in the cloud instead is really meaningless. the expectation of privacy on the part of the individual is that it is there dated. and i think we really need to revisit the whole scheme that we have here about americans expectation of privacy. when these laws were written there was no cloud, and we ought to extend the fourth amendment protection the individuals data were ever held when there is an expectation of privacy.
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and mr. burt, i would like to ask you about compelling cloud providers like microsoft to produce communication records. the stored communication act allows the government to compel such data upon a showing of reasonable suspicion here do you think that this standard is sufficient to protect the privacy rights of individuals who have the data stored in your cloud. >> us know. that standard is cleared not sufficient and that's why we're recommending the heightened standard that we do recommend, that this committee consider in legislative reform. that standard has been turned into these boilerplate approaches that we discussed that enable law enforcement to just simply assert a conclusion that secrecy order is necessary.
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and then as you point out, quite accurately, that denies the target of that investigation. any opportunity to exercise their fourth amendment rights because they don't know that their property is being taken and searched and seized it what we done in our litigation is assert our first amendment right to inform our customers, and that come while some courts have recognized that we do have a first amendment right to inform customers, and that's why we also believe part of the reform should clarify that that first amendment right does exist for cloud providers come because there been some courts have found the opposite. we really need to ensure that citizens have the opportunity to exercise the fourth amendment writes and that requires a heightened standard. it requires the specific findings of fact that a secrecy order is truly necessary under the existing statutory factors, and a record so that only in
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those very limited instances where it is truly necessary in the national interest is a secrecy order applied, and not 3500 times a year a year just to one cloud provider. .. there are other providers may not be active. if the individuals whose rights have been challenged should have the opportunity to intent and protect what happens the court issues secrecy order that later turned out to be totally unsupported and get the government uses information against the request to bring criminal prosecution? can at the brandon use secrecy order as a basis for depression?
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you know that works. >> i would yield to mr. turley to see if he has a specific analysis of that i believe the answer is that there is no opportunity for the defendant to challenge evidence in that way under secrecy order under the fourth amendment. >> the time of the gentle lady has expired. >> thank you, mr. chairman. >> thank you for holding this important hearing and thank you to the witnesses for being here today. i associate myself with everything that here today basically, it's been remarkably agreeable which is pleasant and surprising and i hope we can work together to bring clarity and rectification of these problems so here is my first
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question, ms. burton, this is for your. reset your written report, information and of file present on file cabinet. this is by every witness. there should be no greater secrecy due to the case of ease of access. my question is, if you were the d.o.j. government, how would you respond to that? the blanket statement, because no greater, just because it's easier in plain secrecy, how would you respond if you were d.o.j. to that? >> if i were attorney general, i think he's headed in that direction, i'd want to see responsible as a citizen of the country to balance all rights and needs and that's why we have judges and that's why we have noticed and should not reporting our providers effectively about the constitution. as you say, microsoft takes
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effort in this regard but that's not universally issue and i would tell you there's a lot of things we don't know right now if i am d.o.j., i don't want convicting people or bringing cases where i can't defend in full measure of the evidence i put before court to give some of the right to challenge that, i think that is shall we say, propyl in a bad way. >> i don't disagree but i haven't heard basically from any other witness, nor have we seen them practice a rigorous that d.o.j. really is concerned with being a pristine the good due process adherence and protecting the rights of everybody. you've all iterated examples where they have abused this authority and mr. byrd is coming into your shop 125 times a year
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software like could be many thousands. you've given your set of prescriptions as well but i do think -- in a physical want for materials being ceased, it's 30 day if it secret, 30 days, why do you think it should be 90 days? >> status 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 in direct secrecy orders with no termination date. we've seen since the d.o.j. formulated policy in response to litigation in 2017, we have seen somewhat of a decrease in indefinite orders we still get hundreds of those every year the standard receipt typically is a year that are too long, time.
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even when it's actually testify to have a secrecy order so our response will be there's a very small universe truly justified received orders where others secrecy orders truly justified that as long as 90 days might actually be acceptable. >> so just have about a minute left and i would like each of you to respond. each of you talked about one way or another, reliance on the courts as arbiters here and get they seem to be rubberstamping this language. i am concerned about what i view as necessary stick approach to d.o.j. or their abuse. what's an appropriate measure? regular criminal case with physical evidence, you are going to have exclusionary issues that will come in and etc.
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what happens here? what's the punitive measure devolves to bad actors? who groped on the table. >> i certainly agree with you that the courts have not exactly covered themselves in glory and part of the problem is that judges are getting thousands of these things if they don't want to go into the weeds on some of these issues so you have cases like grand jury out of the ed new york say this is boilerplate, where getting boilerplate over and over again and that's not saying anything. you're going to have to structure what our court has to find and what a court must establish in writing if we're going to be able to do anything and i think you have to establish standing and palate procedure with adversarial process. those of the things that will result in change. >> judgment time is expired.
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missus jackson. >> thank you so very much and i view this as enormously crucial in holding this bipartisan hearing and it gives me reflection down memory lane of the patriot act and urgency after 9/11 to deal with as we fought for in the judiciary committee that ballots civil liberties as well as this to be able to protect americans. we've come full circle i believe we are here to protect america again and we are doing it from a different perspective. allow me to lay predicate, under the trump administration and justice department, they got the phone and e-mail records of journalists, members of congress, families and staff. i think this, we should dwell for a moment, stand and family.
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in a right of family members and there might be a topic, some set. resources as well some donald trump's determination to repeat the abuses was carried out in his contempt for the invaluable service democracy performed by independent press desire to punish politicians who oppose criticizing the policies and actions played out during the impeachment proceedings against donald trump, conduct reflects and reveals the person whose character is marked by every act, it shows he's unfit over the free people. i say that for the record and i suggest what we are doing today appeal or apply, appeal for all of us applies to all of us regardless of our political perspective as i've heard
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witnesses say. mr. oberlander, you indicated some type is the best is in fact, it's obvious shadowy state of affairs allows for all manner of dark things to grow. we worked very hard on the patriot act to pull back with pfizer even in our effort to do so, we had ups and downs. let me ask all of you a question, yes or no to all witnesses and with the time remaining, i'll ask a specific question but we start, professor turley, you believe congress definitively needs to act in the midst of what we are dealing with at this time? >> yes. >> mr. byrd. >> yes, i do. >> ms. oberlander. >> yes, i do. >> i believe ms. burton. >> yes, ma'am.
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>> let me post this action to misfortune, how might we use orders to further the president's personal crusade, what impact do you think it has as it relates to the industry? >> i would say representative, that what you need to do, how it would not affect just the industry at the media, what we have determined here is that this affects all americans so i urge you to put forth legislation that would have a foundational to apply to the first and fourth amendments, a narrow statute that covers broad constitutional consideration and fat would be to give notice of process standards, courts, judges and no secrecy. i think that combination of things and narrowly state, not all other issues, we've touched
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on a lot of issues but something very simple and clear i would effectively help our industry and the american public to know and. >> thank you, let me ask the question from the reverse, what should be the limitations in our efforts to protect the american public against random securing of data? should from your perspective, therapy the first amendment specialist, what limitations should we consider, if any. >> congresswoman, i think the protection for the media should be brought subject to judicial review anytime you're trying to get government trying to get this material to invade the privacy of paternalist and of
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the reporting process but it may be that there are pacific places where you could override that, perhaps on acts of terrorism obviously there's a reason to believe there is medications around terrorism or identity of the terrorist, that might be one place where you would have a narrow exception but i do think it is imminent harm of violence or media that but in general i think the production should be very broad and subject to independent judicial review and as the other witnesses have said, there should be the right of derogatory appeal for that. >> the time of the gentle lady is expired. ms. mcclintock. >> thank you, i find myself in agreement, this is not a matter of special protections for journalists or public officials,
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business a matter of fourth amendment right of every american citizen, john adams was certainly in a position to know who said in his opinion the american revolution started many, many years before in 1776 but the abuse of general once when he said liberty was born. we wrote our fourth amendment to a short such abuses would never threaten americans. professor turley, i'm not an attorney but perhaps you could give me a bit of schooling. my understanding if the government wants to go through my papers to search for a document, incriminating document, first have to go to a judge if the judge buys probable cause to believe i committed a crime and the evidence for the crime likely to be found among my papers, do i have that correct? >> that is correct, you have to
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set up probable cause. >> does it make a difference if the paperwork they are looking for is if my safety deposit box and i think? >> no, that is audibly about the situation, because of this new technology story on the cloud, suddenly a large amount of your information has become vulnerable to being seized. >> why would that make a difference? ceased in my safety deposit box but they can't just cease it, they have to abide by the protections afforded me under the fourth amendment? >> a shouldn't and what they are getting through data and other searches, a great deal of information that people would believe is private. >> what i'm saying is whether i wrote those incriminating words on a piece of paper wrote them digitally is the same thing exactly whether i strike them at home or in a safety deposit box in the case of a paper or somebody's server in the case of a clock, it makes no difference, it's the same thing.
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>> that right and what is bizarre here with the most famous case in privacy area is chaos for the parts that fourth amendment protects people, not places and get we have the ultimate rejection because if you move information from one place to another, it suddenly moves out of a warrant into probable cause. >> how have we allowed ourselves to get ballpark from these fundamental principles that underpin our liberty? >> it's really two things. the court opens us up for this when it decided in cases like smith allen, ten registers don't require it wants. a lot of it is based on a myth, the court said you give your phone number to a third party by the telephone company, a used to be there really was a human being for putting in your phone number, cap of course you give it to a computer so people are not giving their information to a third party knowingly. the court is never corrected
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that understanding, in my view of the privacy dimension. the other aspect just new technology. have constantly seen privacy protections that have failed with new technology and in this age, it's making a mockery of standards by the court. >> the technology may change but human nature doesn't change and the principles that undergird our constitution don't change because they are rooted in human nature. >> i also want to note that there is a growing gap because the court just decided in carpenter you need a probable cause of termination and a warrant to get the location off people's cell phones and all of us celebrated as a victory of the fourth amendment and gets you don't need a want to get information from the crowd and a privacy perspective, this is not just nonsensical, it is dangerous. >> i wonder, how are secret
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courts secret letters compatible with free society can't a free society exists if it's government secretly surveilled its citizens in this manner in direct conflict of the most fundamental law in one of the great dangers right away can have a cease of its own destruction because it has privacy on reasonable expectations of privacy so as our expectations fall, the government ability engage in surveillance increases in that could become this race to the bottom. >> this is necessary for national security for our country but the only oath any public official takes is not to support and defend the country or government, it's to support and defend the constitution, there's a reason for that. our founders understand if we never lose our constitution, we've already lost our country. >> the time of the judgment has
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expired unmute your mike. >> thank you, sir. thank you, mr. chairman. most of the questions i think have been asked are pertinent but i want to ask, who probably should have the justice department as well to let us know what's been going on. ms. oberlander, we have reason to believe there are other cases not reported, happen reporter where there is surveillance concerning the american public on this committee? >> i don't have any direct knowledge of cases not reported but i would imagine there are. we've just learned about a significant number of attempts to find out the information on various religious and other members of congress so i don't
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have direct knowledge of that so. >> you are a representative for the state and they are protected by the first amendment we are concerned about article one but the public from mr. mcclintock -- discussed they are the subject we need to be concerned about and -- what are your suspicions on what type of cases and people have been spied upon through this committee? >> outside of journalists? >> outside of journalists. >> i honestly, i am representative of the state here and i am unaware of whatever else may or may not have been spied upon outside of the media. >> thank you. mr. turley, i think you discussed acceptance that might
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be made if we have law who addressed it from should all wanted somehow adversary hearing and appealable to a higher level court. other suggestions you might make for the public in these circumstances? >> my testimony does contain some initial suggestions. it's very important, i think addressed the standing issue. we've had cases in which particularly the media has tried to get this issue into court and they -- is outstanding which is bizarre because this goes directly to who the media is trying to protect their constitutional function. there's also limitations on appeal you can look at, i think you can also, interacting language, create more about legislative presumption that applies in these cases to make it clear to court that the
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default position should be not to have a cap order, default position should be not to have secrecy issues, to give you an example, important thing to remember is my good friend, i litigate against them but they are rational actors and follow the path of resistant and if you look at studies with national security letters from 2000 -- 2005 the number of national security letters went from 8500247000. now you only have that exponential growth if it's the path of least resistance. you have to make that path a little more difficult. >> i agree, we need to make it more difficult to protect citizens. what concerns me, we're going to have a briefing for the justice department, when did they know and what do they know about
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intrusions on congress and the press, the gag orders? they always come to the public's attention after the new york times reported them? if so, did they have knowledge beforehand and did they plan to make this public? and i have concern. he'll change the justice department get to be more transparent but it's disturbing to think they have this information for the new york times before this forthcoming to the public about this intrusion and pfister's while well and everybody else in the private communications. i think with practical further but we need legislation that protects the public the process in front of a court.
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you think -- is there just one important forces or are there many? >> the problem with this sheer number of cases is breathtaking. if you pour this into a single court, you will have to have a massive court but the judges can handle these questions they need for structure from you. i want to echo, i have faith as well and attorney general carvings and i think his ideal to deal with this, he's walked the walk, he's been a judge and dealt with these issues he is now the head of the justice department, i think he could be a terrific ally if he means what he says so we can solve this problem but the justice department has not been a faithful ally, 15 years ago we talked about this and that justice department was opposed to shield walk in these provisions but i do have faith in general apartment and i hope that is well established.
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>> judgment time has expired. >> i would like to say to professor turley, have this over, you are a gentleman and a scholar and i apologize if i went too far. [laughter] thank you very much. >> thank you, mr. chairman, i'd like to associate myself with mr. mcclintock that any protections we provide shouldn't be for a special privileged group of people. that's not the way the constitution was written ms. oberlander referred to the press as fourth of state which prompted me to look up what the other three are and it's a reference not to the three branches of government but the three estates in europe which were the clergy, nobility and commoners. i think all of them, including the fourth state deserve the
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protections of the fourth amendment so whenever we draft, i hope it's not just particularly for congress or the media. professor turley, he touched on something earlier but didn't get to spend enough time on it, i think about third-party doctrine. can you explain to us a little more detail how that came about and what we could do in congress to bring that back and? >> frankly i think the supreme court has made an utter mess of this area. i think even people like late justice scalia made reference to the fact that criminal procedure which i used to teach, i was just an absolute morass by the 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
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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. 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
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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 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
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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 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? is technically illegal if the government doesn't have the key
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to, isaiah? are week out long technical solutions to this problem? we are upgrading of policy process notion we can give the keys to folks and not supervise them trust they won't be going to our stuff so those are just a couple of suggestions and i like your suggestion of making sure all affect national security letters or secret requests are eventually not indefinitely kept secret but eventually we know about those, it is critical. we've got to know what we are trying to just like. thank you, i yield back. >> mr. johnson. >> thank you, mr. chair for holding this important hearing. we are here today because the department of justice has come up short recent report document 2020 the trump administration
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secretly obtained third-party platform, from third-party platforms and this is not the first time or first administration under which the department has done some pretty we've heard testimonies today that d.o.j. has read to me with used basic due process protections and criminal prosecutions. the country we watched president as far back as nixon used the legal system to aggressively pursue sources of information and leaks. with all planter, this is oberlander -- excuse me.
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what changes should the current administration take to ensure that it does not allow it department of justice to overreach in terms of secrecy orders and destroying the ability for the state to do its job which is to maintain our democracy through free and fair sharing of information that sometimes critical of government? >> thank you, congressman. first, i do think it is a great idea as attorney general garland set to basically legislate department of justice is no longer permitted to come after journalist source information but short of that, and i think that would be fantastic, short
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of that i think you should legislate particular higher standards before the department of justice can get access to journalist materials, specifically there should be again, as people have said, not up to the department of justice itself but it should have to come in article three judge and they should show the information is absolutely crucial to whatever investigation there is, that there is, that they have tried all alternative sources to get that information and have failed and there should also be a balancing test by the judge as to whether the information is important enough to outweigh the incredible ability of the press to inform the public about issues of public importance so essentially a very high standard, the judge should have to consider that and as we
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talked about, the media should be able to have notice to participate in it, to argue about it and it should be adversarial and rights of appeal. these are very, very serious rights and they should be subject to judicial review and that would go a long way, frankly. >> do you believe the trump administration follows the department of justice guidelines when pursuing journalist sources in the cases of cnn, new york times and washington post recently revealed? >> the department has said they did file the guidelines, 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 in their application and applications for the quote to get that information. we like to see that and what kind of why i secrecy order was
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necessary, as i mentioned these were records that were years old they were looking for in public week investigations already made public so there was no, at least in my perspective, no real risk having a notice go to the media would have in any way tipped off the subjects of the investigation or allowed anyone to destroy the evidence and furthermore, this material was in the possession of third-party, it wasn't even in the possession of the media the idea they could turn around and destroy it doesn't make any sense. >> the gag orders in these cases were quite excessive, would you agree? >> i would. >> the judgment time has expired. mr. bishop.
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>> report, i think it bears repeating something professor early refer to, microsoft has secrecy orders law enforcement agencies present to us from 2016 to present, we found while the number has increased come from a federal law enforcement has consistently presented us with 2400 -- 3500 secrecy orders each year seven to ten a day. is that correct? >> that's correct. >> that's an amazing number and when you try to imagine what that might be when you go to the other ones, professor turley, you have a figure, forgive me for ignorance but you have a figure in your testimony about, he mentioned national security letters have gone from 2000 -- 2005, 850047000 a year. >> correct. >> with the secrecy order, you are describing what that include
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or overlap with national security letters? >> no, it would be in addition to. >> so that separate? national security letters, their similar concerns associated, that's over and above what you're talking about in connection with search warrant. >> that is right. >> are those data published in the aggregate that you know about? to understand what i'm asking. >> yes, there isn't any reliable source of that information in the aggregate. national security letters, we had to sue the government to be able to say anything about that in the resolution for the we can only describe a number of national security letters we get in these broad categories. for example, i can report that we do transparent report in the last reporting period, twice a year, we got between zero and 499. that's much specific we can be. >> professor turley, you spoke about your testimony, i'm afraid
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i didn't get it before the hearing i'm trying to digest it, you advocate for shield law, he mentioned was graphic, he said it needs to have the definition of journalist modified, it looks like you think there needs to be a broader definition of journalist but this goes what mr. gates would say and i think mr. cuenca responded to promote the possibility of setting up special privileges and elite class. journalists are partisan instruments, politician or the reverse to say direct politicians, in effect, if we establish special privileges for them to be able to take information by law confidential, doesn't that grant the power unilaterally not nullify a
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lockbox you take information about the disclosure of thousands of wealthy taxpayers from nap selectively published, they thought about it and know this information is unlawful to publish but they decided that advocacy trumps the law. how do we deal with that problem? >> this is an absolute right, the media is subject to defamation, subject to being prosecuted for crimes committed directly by reporters but what we are talking about is a constitutionally founded privilege, the court case of bransford, the court heavily fractured over this question of privilege. there were some like douglas who believed we should have absolute privilege. a number of justices that we should have qualified privilege, most statutes are based on language artifact case. qualified privilege simply gives
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added scrutiny and protection to the media, it can be overcome in extreme cases but it's there to protect this poor function of the media. look at the state, 40 states these privileges, they haven't checked on prosecution, it's not over mobley but absent from the judges have been able to use them but i think the same is with the federal system as well. >> forty seconds i've got left, characterized, it is a privilege to do and what are the qualifications on back condition? >> what the privilege does, it basically gives. to the court before you allow reporters to begin compelled to turn over information from you have to establish that you can't reasonably get information from another source, you have a clear need for this summation for the court will balance these. some state laws are interesting. in new york, they have a different standard if you go forth privilege or new suspect,
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you have absolute privilege. if you go for less material, qualified privilege, there's a lot of states that have explored different types of approaches to this and it gives you a lot of models to look at thanks. >> the judgment time has expired. >> thank you, i think it's safe to say all of us were upset when we read the reports detailing former president trump's investigation. not only journalists and members of congress and members of this committee but staff and family so thank you for holding this hearing today giving us the opportunity to look at potential abuse of power and secrecy surrounding these efforts. first, i agree, i think there is a higher entered by the present parking brake book of information act. it's always been bipartisan. making sure supplies, these protections apply to everyone is
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important and one easy way to accomplish would be to say the fourth amendment applies to the data you generate, you have reasonable expectation of privacy, what you create an fourth amendment rights were attached to that, what i want to focus on, my question is the secrecy surrounding this because microsoft is an example of a company that takes this responsibly seriously and litigate charters, when not sure other companies do the same if these technology platforms have competitors, if you're willy-nilly giving us up away, and we don't know about it, we can't choose to go to another platform because they don't exist, they are monopoly so i want to go down on the secrecy that is one of the important issues here that i think we don't have a full understanding of what presented to a court and what the court has to consider two alarm these back orders to be in place. what level of detail prosecutors
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required to provide the court and providers when they a gag order? we simply say we need the gag order or we just need the facts as articulated in the statute? >> great question and today they only have to present to the court boilerplate assertion that they need criteria of the statue and there is reasonable suspicion that they can meet that standard. >> and no facts underlying fat? >> that's right, the justice department policy they articulated in 2017 in response to our litigations that they should articulate. >> it says they don't have to. >> what about after the secrecy order is lifted and providers give notice? conference how much information is shared with the targeted party and is a required to be shared once the secrecy order is lifted?
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>> not, that's one of the problems, it's an entirely self related process to take your concerns, i agree with you, it's not just their concern and it is self regulation concern, not have the justice department being judge and jury. they determine when you get noticed and what you know i do go to supreme court and you may or may not have enough information which i think is your on the right track to have a procedural set of requirements, it can apply more broadly and we leave it to judges who have a standard and there's notice of the parties and it is not secret, if you don't allow restraints in this country -- >> i appreciate that, thank you. once the electronic surveillance related gag order expires, is are currently obligation for the department of justice to notify the target of the want when greg order was in place?
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>> absolutely not, they don't typically do that so falls upon us to do that. >> that burden falling entirely on you, are you required to notify users what is that very? >> were not required to but we have a firm policy that we do notify in all cases. >> is that same policy in place with respect to all other large technology platforms? >> to my knowledge, that's not in place with all technology parfums what limited information be fourth amendment rights may have been implicated by one of these orders or collections? >> we believe in those rare instances where this secrecy order is justified and the standards should be probable cause from a fact specific, course should find facts are sufficient but in those instances where that standard is met then went the gag order expires, they should be informed
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there was a gag order and the scope of the search. >> it seems to me it's inappropriate for us to expect third parties will fiercely defend privacy rights of individuals which this client architecture requires some companies to take it seriously, some don't. citizens and users lose as a result. thank you for your testimony, i yield back. >> mr. chairman, i am kind of listening to all of this discussion, very surprised how many loopholes are caused have an surprised hearing our constituents haven't changed but mr. mcclintock brought up what's happening, no wonder our citizens don't trust in government so i have a quick question and i think congressman brought this up, i would like to
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-- but just for you, what about us have these loopholes in the interpretation of the court or legal framework so ambiguous that we need to clarify? it seems like this due process should exist regardless if we have new or old technology, what happened? >> is a perfect storm because you have the court that opened this up reading a whole group of body searches that can occur before the browsable cause with reasonable suspicion that snowballed within a short time, they feared it as a narrow exception from then you have technology that poured into that gap, technology that felt in those areas and suddenly were not protecting people, where protecting places or not
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protecting places like the cloud. if you take staff from one source to another, it protected over here, and it caused to the crowd would you have to use in many cases or a matter of course, it loses that protection and i think what you are saying is vital, a lot of people would be surprised when they find out there information is so readily available to the government and that itself is a corrupting aspect society that the public has a different view of what their privacy is from with the government is actively doing, not in a small number of cases but masses. >> we have to deal with that you believe it needs legal action from congress to remedy the situation. >> this is not a particularly difficult to solve, you can easily create a framework that will protect privacy and fill the gap. >> thank you, i yield my time. >> thank you for yelling and
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when we left off and ran out of time, professor turley answered my question and i will remind you of what is, i was asking about the stick that might be necessary to help what we typically think of as an independent court so you think seem to be together and guidelines, how do you make sure those are going to be toughened? >> if i may -- >> yes. >> i think the concept of extending the fourth a minute, the data stored in the cloud is reasonable framework to consider because that would take all existing six as you put it, that would apply when government overreaches and violates these rights, exclusion of evidence and so forth. the irony is fourth amendment prudence is based on reasonable expectation of privacy and your
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security and privacy and data higher in the crowd but it would be if you kept it in your premises or network your corporation so the technology id with the technology to protect our citizens and organizations information. >> just to add to what my colleague said, one of the reasons media organizations put their data in the cloud is because they are also concerned about the security and they can't afford to have the kind of technologies in their shops who can protect from packing and fishing and all the other problems we have with our data so it puts them, many media companies in a tricky position but what kind of penalties you could have, there is the possibility perhaps of 93 action if rights were violated and
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journalists have used that successfully in certain cases. >> before you answer, i think we would all resume that there is private property, you have private property rights in your data, write? it begs the question that mr. mcclintock was raising, wife and we have loopholes and professor turley, why do we have loopholes that attack fourth amendment rights or otherwise your well known and should be established private property interest in your data? >> your time is expired but answer the question. >> -- >> oh, i'm sorry. >> the minute we get processed into a statute that you will seek prosecutors act more rationally and i would leave it to the court to suppress the evidence and dismiss cases.
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i think that is remedy enough i'm not in favor of creating more action around this, i think we are trying to simplify and protect rights and i think the courts would make sure that occurred. >> the gentleman yields back. mr. lou. >> thank you, chairman for holding important hearing. professor turley, i like to follow-up on this questioning, walk through some standards and whether judges involved. the difference between their content of let's say a document versus the data. the department of justice wants to get the contents of the electronic letter, they would need a warrant signed by a judge, is that right? if they want the content stored on a cloud, they would still
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need a warrant signed by a judge, right? >> the content so they could get data -- >> that's not confusing, the content, they would need a warrant. >> yes. >> now first of all, what is meta data? >> defined by one person basically data about data from meta data, it describes data and it can give you information for the centers, the subject, that is a lot of information. >> okay so let's say they want to get meta data they believe is stored on your home computer, they would have a warrant signed by a judge? >> to get access to a computer, yes if they want meta data stored on the cloud, they should simply send a subpoena and get
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the data without a warrant, is that right? >> in addition, they may company -- essentially the unwilling participant in that disclosure -- >> thank you. grand jury subpoena for meta data, is a judge involved in that process? >> grand juries can issue document production at a standard lower than probable cause, justice are supervising fair procedure but in most cases these are going through with very little review. grand jury subpoenas can come under the problem standard for production. >> let's go back to the example if we have meta data stored on the cloud, there is no warrant requirement, what if congress put in a warrant requirement from meta data stored on the
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cloud? what's your sense of that proposal? >> you could do that, the standard is not a huge standard, as a criminal defense attorney, it's a easy standard for prosecution to me but you have to have the facts for getting that information. i don't think the market would come to a sudden stop in terms of prosecution but it would change and make it more of a crime for prosecutors because right now it's similar to the false lantern approach, a lantern to cook confuse people thinking it's a safe plan. there's lots of protection for the data and it turns out it is a myth want to do that. >> thank you. now i am sensitive to the view that we don't want to draw lines around certain groups of people and not others, i do know the
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constitution and free press, journalists are in a different category and constitution also does put in structurally separation of powers and when you have one executive branch trying to intimidate congress in seizing this information, it does pose a problem my view, it is that we could try to do something different and i want your thoughts, what if they are getting information on journalists are members of congress, they provide edification to the department of justice inspector general as a second check of what they're doing, what you think about that? >> i think that's a great idea in terms of transparency but i want to note some aspects that confuse me, you have pretty generals think they are not aware of this program, fattest not supposed to happen. since the 1970s, attorney general or designated official is supposed to sign off on this
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so i don't know what happened this one of the first things i think the committee should try to find out about. >> my last question, microsoft must this increase you know what investigations are about could be about child pornography or something else with that, i yield back. >> we don't know what the investigations always are about but we do know enough in the vast majority of the cases, there just routine, they are not child abuse online national security their routine and i want to make it clear, i may have contributed to this confusion when we talk about standard the warrant and, probable cause for once, yes we have to get to wants before we produce content e-mail, for example subpoena is all it's
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necessary to get meta data but what we are talking about today the secrecy order that accompanies that warrant or subpoena and there that we need higher standards and findings of facts establish secrecy order truly necessary. >> the gentleman yields back. >> thank you, mr. chair. sometimes i think we are are worst enemies on this letter to congress or the judiciary's write up earlier, could you comment a little bit about changes or accommodations made under the ostracism's of national security or public health when it comes to the watering down of how this is viewed? [laughter] >> there's a lot of changes, this body has shown it can solve problems. you do that with healthcare
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information, creating privacy protections. you've done it creating new limitations in searches, 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 require greater level of transparency and proof that allow greater numbers of people access so they can raise a. this is a problem we have in national security litigation matters the government often wants to do in camera presentation and i'm in court swimming body murder saying to the judge, judge, i know you are familiar for you are not familiar with this case, you need somebody who knows what this case is about, to stop whether the documents are material so i think long-standing problem we have but the problems we face classify trials are nothing like what's being done here, basically people are being told
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they have no ability to challenge. look at the case out of the second first circuit from the new york times that we are not going to turn over our phone records and fan all the provider and that by the way, if they ask for phone records, tell us we can go to court and they said no. department of justice fecteau tappan from the position was the new york times has no standing to be heard on this issue to appeal this question. in what universe of due process would that seem reasonable to you? >> i would just add what we have seen happen the last two or three decades from a tour provided to law enforcement to address the problems in a particular spot of concern especially around national security has now been overtaken by technology the way people keep and store data and the tools have not been restricted
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and limited in an appropriate way to protect individual rights technology has moved data from on premises into the cloud. ... >> thank you very much. professor turley, let me get more specific and down into some of the issues that had been discussed earlier by some of my colleagues. 2017 report by chairman johnson of the senate committee on homeland security and governmental affairs found the trump administration was facing about 125 leaked stories, about one a day, and by the report concluded the leaks with the capacity to damage national security which is what i was trying to tee up earlier.
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load faster under president trump than during resident obama and even george w. bush. why is this problematic? why was there a difference between administrations and ultimately this misleading narrative that's been out there needs to be addressed. i'm just wondering what comets you might have. >> frankly i am nursing leaks like the low side in the trump administration. they were occurring so frequently is almost like they were getting leaks in real time. you would get leaks about meetings that just happened. obviously can't happen. you can have a functioning presidency if you think that whatever you told a world leader or your aids will immediately be heard on cnn or fox. the government has a legitimate reason to hunt leakers. my objection is what i call reverse engineering. nobody i think it can contest the trump administration would
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enough to go after leakers, had every right to do that, to try to find out who was leaking unauthorized information. what concerns me is that it's always tempting for prosecutors to reverse-engineer. they know who received information. look at the byline on the article, that's the person who is the recipient. you can reverse-engineer by focusing the investigation on the reporter and working back to the sender. that's a very dangerous approach. approach. it's dangerous for the constitution. the preferred system is look at the suspects but in the process of that you're going to find out the numbers of reporters. you have to otherwise you will stop all leak investigations. it's where you start and my suspicion is this might be case of reverse engineering which i would love this committee to confirm. >> gentleman's time is expired. mr. raskin. >> thank you, mr. chairman, and thanks for calling this hearing indeed in the need wake of revelations the doj sought the telephone and
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e-mail records not just of journalists and also two of our colleagues, mr. swalwell and mrn family and staff members apparently. i want to thank the witnesses for helping us examine the threat specifically post to the freedom of the press by these practices. i think it's a matter of fundamental importance to american democracy and i'm pleased to note that tomorrow i will be introducing the press act, the protection will reporters from explorative state spying act which i've been working with senator wyden, for some time alone with my colleague mr. lieu. this bill is an update of the free flow of information act but i am proud to releases and less colic with mr. jordan in the 115th. it will prevent federal law enforcement from being able to obtain information from journalists to the work devices and accounts as well as personal devices and accounts and also
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prevent the government from conducting an end run around these prohibitions by preventing them from seeking third-party communications compelled by computing and -- held by services except in their exceptional services. i hope colleagues on both sides of the aisle have demonstrated 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 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
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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 because he for we had this backdoor that everyone was going through it wasn't a problem at the same level that it is now. i would suggest if you have proper and clear requirement that there is a bilateral presentation to a court, either through the judiciary which would create some opportunity to the other side of an argument if something really was a national security issue, very narrow set of cases, that would probably resolve the secrecy should. >> the secrecy order would go back to being an exceptional -- >> exactly. >> rather than the rule now because it seems to be pretty perfunctory they get them now. >> right. it's having a dual process and having a presumption in favor of
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openness that judges respond very well to invite all the constitutional rules and cases that have upheld those basic cadence. >> any of the other witnesses want to comment on it? >> i would only add that there are a couple of other things we can do, too. so you can narrow, as we discuss, now the length of time the secrecy orders are in effect by putting a cap on them in the statute. right now in -- there's the time limit so you add 45 days or 90 days and that's it. you didn't have to tell the subject, the media entity that their materials have been requested. that would help as well. the other thing that has been present in some of our testimony is that in cases where it's truly necessary to not inform the affected media, maybe we can have an independent third-party, some sort of advocate perhaps we
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doesn't necessarily let the media know they have been hired but he comes in and talks to the judge and says these are the very, very important first amendment interest here and you should please be considering them. so adding sort of another -- >> ms. oberlander, let me stick with you for a second. you noted in your testimony some of the policies that amused by doj to limit the use of spins against journalists at you i've observed these are merely internal policies that are subject to override at whim by future administrations. they don't address the end runs that better conduct routine by law enforcement, to obtain third-party data through parties like microsoft. i wonder what do you think about the need for a -- everything refund the last few months? maybe i can close with that question to all the witnesses. >> i was delighted to hear you are introducing the depressed
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act tomorrow. we absolutely need a shield law which will frankly protect from government overreach but also in private cases as well and civil cases here and so i am really, inc. we absolutely need them. i'm really thrilled to see that. >> if i could go down the bunker professor turley, do you agree? >> i do agree. the only quibble i had in my testimony is on more of, a discreet about the definition of covered persons. i also think it can be tweaked to increased some issues, for example, there's a single line national security may be considered by a court that's in the previous legislation. and it really doesn't say how that should be weighted by the court i expect a lot of judges would look askance at that as a standard. >> okay. ms. burton, do you agree. >> i i agree but i wouldn't leta process which will be a longer process this committee from
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issuing a bill and along right away. i think that we cannot underestimate the harm of privacy and the harm of lack of process in which to me is incredibly dangerous to the american public. but it do support a shield bill i think is a more complex discussion which we should be reflecting on also. >> thank you. i yield back. >> gentleman yields back. mr. jordan. >> thank you, mr. chairman. i want to thank the chairman for putting this thing together today on this important hearing and i was thinking about broad sense how serious the situation is. americans have a fourth amendment expectation of privacy regarding all the information including as we talked about information stored in the cloud. yet government can come to a third party like mr. burts company and was something less than a warrant get that information and when government does that they tell mr. burt that he can't tell his customer what's going on. you get those customer pay, your
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fourth amendment liberty such as been violated. when government initiates it all, the attorney general doesn't even sign off on it. now if that's not serious, i mean, the current situation the broadest is a a situation thas been in the press and without mr. barr as a think it is in mr. the authorization, more than notable. it's shocking, it's alarming that jeff sessions come bill barr and merrick garland all tonight in the nose of what took place. somebody had to sign off on it. you got the final issue at stake here and no one who has been senate confirm which is part of our checks and balances on protecting our liberties who's even signed off on this. i find this as mr. gaetz i think let up on our side, we can work together on this and do something with this shield law i had costarred in the past with mr. raskin or what have you. but that is the situation. i'm just trees, mr. burt come has it happened to the same customer several times?
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>> i'm sure it has happened to the same customer several times, although i can't, i can't say that with any specificity but i'm sure it has happened. >> it could be even worse than i just described. >> it could be. one thing is that one of the things we always do when we get these processes we look to make sure it adequate. we will not produce our customers content or e-mail or other content without a word that we require a warrant. but we still get subject to the secrecy order. so we can't tell the customer that the data has been taken and only the customer connection exercise the fourth amendment right but you can't exercise your right if you don't know it's been violated. >> even when you suspect that it might be and they tell you is in the gonzalez case which mr. turley cited dickens basically say no, they can't do it, no way to make your case and being advocate endogeneity do in a court. >> that's right. the court would say we don't have standing on the fourth amendment issue and we would be told we don't have the right to tell our customer that they
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should go look to see if the fourth amendment right seven pilot. >> what she we do? this may be the person this committee this congress has kind of had some kind of agreement on maybe we can work together on -- steps one, two and three what you think we should do because i do think, i mean, mr. raskin and i don't agree on a whole lot, agree when the cosponsor this legislation, it's telling and you've heard the comments from both sides to give us the one you 23 the united states -- >> putting aside the subha which we discussed i knew there are six berries i think you should look at but i think you need to strengthen these standards. you need to give course more concrete standards, give standing to companies like microsoft, like "new york times" to google to contest of these issues to limit these types of agreements. you have to stop relying on the goodwill of the department of justice. department of justice's these types of orders have to be called extraordinary measures
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not standard investigatory practices. but if the report are true, if what we been reading about, then that and a buckle buy you a cup of coffee, if not worse what the paper they voted on. you need to establish concrete standards that can be appealed and that the critical parties of interest can be in that room. and then we also need transparency on how many of these things are being issued and their conditions. a number of courts have complained in writing that they getting nothing but boilerplate language from the justice department, and the ability of the court to say no. >> thank you all. mr. burton? >> we detail in my written testimony the steps we think the committee should consider but i can emphasize a couple of them as really critical. first the restriction on us telling our customers, a restriction on our first
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amendment right in a number of courts have recognized that, which means the standard of a secrecy order should be a strict scrutiny standard. but that's not being applied. the corrective legislation would be clear that strict scrutiny should be applied and that i must be findings by the court based on compelling evidence submitted to the court showing that standard has been met. and even then these privacy orders should never be longer than we proposed 90 days without clear evidence being shown later on as to why they should be extended. we think just the steps would significantly reduce the number of these privacy orders that are even sought and would reduce the number that are being granted and combined them -- confined into those cases with virtually necessary in the national interest. they would have to show to get the privacy order that they can be one of those five statutory basis for getting a privacy order which are reasonable reasons to proceed in a short-term private secret way.
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>> gentleman's time has expired. mr. jeffries. >> thank the distinguished chair for holding the sharing as well as the witnesses for your presence here today. early in the constitutional construct of this country we've got an article on legislative branch that very proud to serve in. article ii executive branch, the article iii judiciary, all apparently constructed to show that there are checks and balances but also the framers of the constitution recognize the importance of a free and fair press. in the first amendment, the first decision made to amend the constitution recognizing that perhaps the fourth estate was also central to their vision as to what the democratic republic would look like, were we able to keep it picks i just wanted to ask a few questions, and ms. oberlander, i'll start with you. about your career you advised
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media companies and journalists i've lived on the legal implications of reporting on matters of public concern and national security come is that what? >> yes, that is. >> and in your view has the governments use of what i would phrase secret subpoenas and gag orders threaten the ability of journalists to actually do their job? >> so journalists who are afraid that their being surveilled if they had been surveilled in the past, it's very difficult to go and convince or talk to people to fairly represent to a source that they will try to maintain the confidentiality. it's quite chilling. some of it is on the source side where they see the journalists have been subject to subpoenas after-the-fact and they say i can't talk to you. it makes it very challenging. >> is it fair to say that in
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providing information to the public which is a great service, that the media, , the fourth estate, that journalists divide, that they often will rely on confidential sources, is that right? >> yes. there's a lot of reporting -- nasa security reporting but also all sorts of other very important reporting the release on confidential sources. >> and can you elaborate on the importance of maintaining confidential sources without sort of this practice being chilled by an overbroad or overly aggressive department of justice utilizing these secret subpoenas? >> well, so yeah. yes. i mean, there is in our papers, in the testimony there are, you can but also as if incredibly important stories of really national importance ever based on confidential sources. some were, in fact, national security stories that others were conditioned at walter reed
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levels of corruption and informed governments. in fact, frankly is a person has worked at univision i can report that a lot, there's an awful lot of reporting about what's happening internationally with other governments, not the american government, where you have a very, very important reporting coming through and where the sources are literally afraid for their lives. and so if you cannot maintain the confidentiality, if there's a risk they are going to be disclosed then they really are, they may be killed. they have very legitimate fears of retaliation. that of course fortunately we cannot to have killed too many journalists or sources here that i'm aware of in the u.s., but it is definitely a big part of our reporting. similarly there have been reports much reporting about all sorts of fraud, fraud in h-2a
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visa applications, thing filling on companies you sources, people who don't want to be disclosed because they may be undocumented but they still may be subjected to quite horrible conditions. the enron reporting, the balko reporting, i mean, and just and even the reporting about the tax filings of wealthy americans. >> in justifying with some of us may characterize as overly aggressive and/or inappropriate behavior at times, department of justice governmental entity so sometime site national security. that's a very broad phrase and certainly all the concern about national security. but in your experience can you just in the final few moments that i've got, articulate whether that is being invoked in an overly broad fashion and how might we think about viewing and
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balancing national security as a concern, but also by the free and fair press that's vital to our democracy to also be able to thrive? >> type of the gentleman has expired. the witness may answer the question. >> so there's a long-standing problem of overclassification of information in the country, and because of that if a source discloses some information that is classified and maybe gives the given an opportunity to argue that the disclosure is a violation of one of its secrecy asked for the espionage act, you all of this and have a national security issue, when really much of that information is not of that kind of importance where you would need to disclose something truly secret and dangerous to the country. and so one way of restricting it is to restrict the definition of national security in any of the statutes that we passed -- i mean, in terms of what you
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qualify for an exception and to narrow it may be as has been proposed just to include terrorists and potential terrorist acts. really dramatic issue and not a level of embarrassment to the government. that would be one approach. >> mr. vance. >> thank you, mr. chair and thank all of the witnesses for the excellent testimony and their doubly excellent testimony as it appears in my notebook year. we had a 25 hour marathon discussion about big tech just last week, and much of that discussion focused on eroding thoughts about privacy. so professor turley i think you mentioned that the reasonable expectation of privacy perhaps is not as responsible and was given what we now doing. so your awareness of that space leads me to ask you, what is our
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new standard? was the alternative none of i should expect privacy anymore in this dual life we live online and in one sitting here today? >> that is a danger that we could move towards a post privacy world, and that something that none of us want to see happen. the standard is unlikely to change, but it means that our protection from government surveillance is based on a reasonable expectation of privacy. and as that expectation falls, the government's ability to engage in warrantless surveillance increases and i can make expectation falls further. this is the ultimate example of that. people store great deal of information on the cloud. as they begin to understand what they sent the messages in terms of metadata is not protected. and phone numbers are not protected. and all these other areas are treated as just subject to the
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standard of reasonable suspicion, which is barely a speed bump for prosecutors. their expectations would decline for the what worries me and i tell my students this all the time and a cheech privacy of the law school, is my students expectation of privacy is a fraction of my own. and we are seeing this decline in generation but it has real impacts on government ability to engage in warrantless surveillance. that's why this is an occasion where the congress actually can correct the error of the courts and come in and say we actually don't want to live in a post privacy world. there's new technology here particularly on the cloud and we're going to protected because if we really series about cat that the fourth amendment protects people not places, then go protect people. you find them and cloud in terms of what they are leaving there. then you would actually defend cat i think more than the supreme court has done.
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>> thank you, professor. let's move to ms. burton. on page 11 of your written testimony you note that there had been a constitutional violation i think the way you put it preventing a lawyer can indicating with the client by virtually one of this guy go to partner with any other situation where such a prohibition has occurred where a lawyer has been told by a judge you can't talk with your client? >> no, , i'm not aware of one, congressman, and i think it's a clear violation of laws and thee attorney client privilege log. i would've said that they cubit of these events that something that you should need to do. it should be part of continuing legislation that we are considering today. >> right.
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at the bottom of the paragraph last since used in legislation cleared by kickstarter presumption. against such orders and heavy burden government must bear to testify. would you describe how or tell us how you would craft the definition of that heavy burden. >> i think there has to be a compelling interest before any kind of secrecy order can be imposed. one of the things we've done is we have contractual provisions were all of our cloud providers that require them to give us notice pics of that has helped which tells me if we're to add some language in the statutes we would have the same benefit of that is a government with typically go to whatever is easiest to get information from. there's a battle of contractual provision, i get credit to microsoft. the been very good at giving us notice but that's not the case in all of our communication providers. >> thank you, i think all of you for your patience, and i yield
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back. >> gentleman yields back. mr. swalwell. >> thank you, chairman, and thank you for holding this hearing and as a look at the last administration and the abuses at the department of justice is clear we had a president and a department that reported the president's friends reducing those sentences or issuing pardons for paul manafort, roger stone, michael flynn, and then punished and weaponized the department to go after the president's enemies. i guess i will start with ms. oberlander, if you would engagement on this. would you agree that presidents set the tone for a country that how a president engages, whether they are a goalie for compassion or they are leader has a real effect on just how everyday americans -- boley -- can carry
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themselves? >> i would pick at it you think that the attacks on the media of the lasted administration has had a profound and negative affect on how the media is perceived by all of americans. i think the cries of fake news and the specific effects of particular journalists has really undermined and worked to really injure the standing of the press. >> ms. oberlander, we had seen the truck rallies, the attacks on the media, we've seen across the country attacks in violence against journalists. you did not know my question datatype and mr. chairman, this is not an advertisement for my violence against journalism bill, but ms. oberlander, my concern aside from what donald trump and the department did, because i have faith that merrick garland get to the bottom of this and that in congress will understand exactly who was responsible, to kind of
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extrapolate what you are saying, the department of justice at the old law enforcement agency in america, is that right? >> i think that's correct. >> and every state you have a state attorney general and, of course, county and municipal law enforcement? >> yes, you do. >> do you fear that if you have a president who was willing, who detests accountability and was willing to weaponized his own the law enforcement agency against his enemies, that i could have the effect just as we mentioned earlier with presidents setting the tone of governors and mayors seeing that this is a permission slip to weaponized local law enforcement? >> i think, i do want to say that the subpoenas to the media have been going on across, this is not a partisan issue. i mean, we did see the president obama issued a number of, there
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were more leak investigations than there had ever been and we had a growth of that. it's not purely a political issue but yes, that perspective, the attacks on the media have had an effect both federally and at the local and state, local and state jurisdictions. and if you look at, there's been a lot of video about media who were labeled media, , press, et cetera, were treated and injured during some of the protests last summer. it does feel that in some cases they were singled out because they were press. >> and to distinguish, because i agree with you, i think it's wrong the obama administration allowed that, but would you agree that while that was an aggressive pursuit of leaks, the difference between what we've seen or suspect with the trump administration is that it was a
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punitive use of power, meaning it was, the motivation was to go after perceived enemies, whereas on the obama administration cytosine it was an aggressive use of law enforcement? wrong but he think there is a distinction. >> i i mean, there's actually a distinction between the way the administration's operate. i would want to characterize one motive or the other on that front. but i will say there has been, during the trump administration we believe that there had been twice as many leak investigations opened up as they were in the prior administratio administration. >> ms. oberlander, i don't want anyone to walk away from this hearing believing that members of congress think that they're above the law. if a member of congress commits the crime or if there is probable cause for search work, he or she should have their records subpoenaed or their property searched and seized.
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but what can we do, aside from additional protections for journalist, , what can we do for nonjournalists and stores additional protection? >> and and i completely agreei will say that the shield laws that we've looked at and also all of the attorney general guidelines, i do want to point out if a journalist is being suspected of committing a crime, not relate to newsgathering,, that the crime itself is not throwing out of a newsgathering, the none of these protections apply government can, after and look for their materials and see -- so there's always been an exception, carveout for crimes that are nothing to do with newsgathering. but if you think that for everyone, i do think there should be, at the very, very least, this applies to members of congress, a duty of candor on the part of the department that any time they are looking for
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materials from the congressperson or the staff or the family and they know whose materials you looking for india to tell the third-party provider, the service provider of whose information it is. apple has said they have no way to identify potentially d note that this was congressional staff and families. so i think there should be legislative obligation to disclose what they know, why they are looking for it, and then in a limited, very limited places where there is no notice given, the service provider will be able to make a determination of whether that something that they should be objecting to or not. >> i yield back. >> the time of the gentleman has expired. mr. johnson. >> thank you, mr. chairman. i appreciate our witnesses but i have to use a few moments are to address the elephant in the room. i am here at the southern border, la jolla texas participating remotely because we do with president trump, with governor abbott, and about two dozen members of congress to
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highlight the crisis here. mr. chairman, i have to say, our committee, house judiciary committee, has jurisdiction, broad jurisdiction and this is the most pressing issue facing the country and is being totally ignored by the committee. we have to point that upper-class night, mr. chairman, we were on the border until probably one or 1:30 a.m. we watched droves of migrants come across a border all night, completely undeterred because the border wall construction was stopped just south of la jolla. there's a big gaping hole and there's many enforcement all across the southeast texas border. we appreciate vice president harris finally making the trip to a passive that is not where the crisis is pickets are in south texas. many hundreds of miles south of where the vice president went. the house judiciary committee have a responsibility to address this crisis. we had 180,000 -- at the
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southern border just in may of them. it is a record increase and it is a crisis can we saw small children abandoned last night at the border come walking across unaccompanied. the border patrol cop them in the border patrol protection, the agency or are so frustrated because they can't stop it. all they can do is work as fast -- for the cartoons are trafficking humans into this country. they taken to a facility. most of them are not covered tasty. they give them travel arrangements anderson is a country to all 50 states apparently with no expectation they will be tracked and returned at all. this is a humanitarian crisis. oh, by the way, federal procedures are up 934 -- the southern border alone just in may, a 300% increase over may over make it last year. this affects every state in the nation and every american ultimately and it is an outrage. it is a dereliction of our duty to i am saying to my colleagues
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on both sides of the aisle we must address this. if republicans on our committee have introduced legislation to fix this, i've got a number of bills myself to help with the assignment reforms and all the things we know need to be done that they have been ignored. and i just want to go on record and use my time this morning to say we will be highlighting this today on the border. we hope the media covers this and shows the american people what's going on, and i say very frankly and respectfully, mr. chairman, it is a shame the judiciary committee is not doing anything about. i will yield back my time because i'm about to go to the border here, and we need to talk about this and we need to have a hearing. i yield back. >> gentleman yields back. ms. jayapal. >> thank you, mr. chairman. i hope mr. johnson will ask the donald trump why he separated thousands of family, children from the films and help the asked him what the department of justice under the trump administration undermine the civil liberties of so many people across the country with
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the secrecy orders. i wanted to pick up on i believe it was mr. sissel leaning questions about what is needed to get these protection orders. i think this whole process is really quite stunned for most americans who don't distinguish between what happens to the data that is stored and what would happen if it were to be in home and the files were to be seized. some want to just read from, this is u.s. department of justice office of the deputy attorney general memo from october 19 come 2017, and in the footnote it says when applying for a order to accompany a subpoena comes to company a subpoena seeking basic subscriber information in an ongoing investigation it is not public are known to the subject of investigation. stating the reasons for protection from disclosure under 2705 be usually will suffice.
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and it actually just puts a point on i think everyone of you in some way or another as, on this i think mr. turley you're speaking to this as well. it's quite stunning to me that the race seems to be no standard at all. of course the question equity information because the direction is you don't need to provide it. i'm wondering i'm still of one to ten of one being a rubberstamp and ten being a real process that protects our civil liberties, our rights, just curious where you would put the current standard? we can go through quickly, mr. turley. >> i put it added one and it was a compliment you for highlighting that the dough because it is how it reads. it's basically telling prosecutors can find what you say. you don't have to give any detail. the department justice benefit from that. if you can use boilerplate and use over and over again in judges when they see it basically say this is all they have to show and that's how you
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get to these high numbers in terms of the use of these devices. >> mr. burt? >> i would agree it is a one. while there is that footnote, as in policy is one that emanated from our litigation against the department says their supposed articulate facts. but then when you look at the template that the department of justice provides to the 93 offices around the country that says here's how to get the secrecy orders, it says just write down this boilerplate. the template is consistent with the footnote and there's really no meaningful process. >> ms. oberlander? >> i don't have a lot of exposure to these, only the ones that even reported but certainly 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
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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. 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.
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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 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
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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 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.
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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 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
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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 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
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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 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.
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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 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
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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. >> 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.
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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 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
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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. 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
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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, 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.
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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 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.
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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 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
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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 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.
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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 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
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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 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
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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 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
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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 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
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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. 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?
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>> 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. 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.
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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, 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.
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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. .. what about those others that may not fit the traditional mold? what about online blogs or darnell of fraser who filmed the murder of george floyd and won a pulitzer prize special citation because of her courageous act?
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where do you draw the line about who would be covered by such a red shield? i'll open it up to the witnesses to answer that question. i know you put some of that in your prepared testimony >> my objection to the current legislation is that it follows a rather dated definition of journalism. it specifies that as part of your livelihood notes you should have a supervisor editor that 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 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.
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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 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
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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 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
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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 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.
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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. 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
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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 approach adequately protected our journalists that have been engaged in first amendment activities? >> they do very asked the we previously mentioned.
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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 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
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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 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
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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 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
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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 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
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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 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
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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 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.
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>> 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 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
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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. >> 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.
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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. 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.
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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 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
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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 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
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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 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
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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? 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
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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 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
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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 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
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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 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
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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 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.
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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. subpoena is issued. like microsoft and he is not? >> that's correct.
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>> 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 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
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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 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
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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 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
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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 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
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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 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
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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 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
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. >> 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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