At a House Judiciary Committee hearing before the Congressional recess, Rep. Tom Tiffany (R-WI) spoke about Judge Boasberg.
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00:00Thank you, Mr. Chairman. Mr. Cherneski, in your testimony, I'm going to read from it. It says,
00:09RISA did little in the form of reforms while simultaneously dangerously expanding the scope
00:16of surveillance by changing the definition of what was considered an electronic communications
00:21service provider. Could you expand on that a little bit? What are you talking about there
00:27that RISA actually did not solve the problem and may have made it worse? Thank you for the
00:33question, Representative. When we were looking at RISA last year, as a part of the reforms,
00:38they included a provision in there that would expand the definition of an electronic communications
00:42service provider. Now, this used to be a more narrowly tailored thing to capture data from
00:48these particularized companies, but the way that they expanded the definition would capture a wider
00:53array of companies to virtually including everybody, right? And so what you ended up
00:58seeing was from the Department of Defense, or Justice, rather, they made a promise that like
01:03they were going to keep their searches for this kind of data a lot more limited. But again, it is
01:08still problematic, problematic enough that even the chair of the Senate Intel Committee, Senator
01:12Warner, committed to trying to get a fix to that. Unfortunately, that still has not gotten done to
01:16date. But this is a real serious threat. If now virtually any anybody that has data on Americans could be
01:22subjected to being considered an electronic communications service provider.
01:26So we think the new leadership at the FBI is going to be better in terms of respecting people's
01:32constitutional rights. Should Congress just move on from this issue, or should it act?
01:41Thank you for the question, Representative. I think that in light of the fact that administrations can
01:45change, I would not want to leave it up for interpretation for a potential abuse underneath a future
01:51administration. So I do think that Congress should act to go and fix this overly broad definition of an
01:56electronic communications service provider. Mr. Chair, could you comment on the amendment that
02:03Mr. Biggs had in his bill allowed for limited exceptions, yet we were being browbeaten saying that
02:11no, you cannot do this. You cannot pass the Biggs bill because there will be no way out to be able to
02:19get a perhaps bad actor. Would you care to comment on that?
02:24Sure. Well, and a number of reasons were offered for that. And my analysis is that it was all just
02:32fear-mongering. I mean, every single objection that I heard was just based on a misunderstanding
02:39of Mr. Biggs' amendment. For example, as Chairman Jordan mentioned earlier, the amendment had an
02:47exigent circumstances exception so that if there were a ticking time bomb, the agency could act
02:54without getting a warrant. And of course, the amendment allowed for people to consent to search it. So if the
03:02FBI thought that somebody was being the subject of a cyber attack, for example, they could go to that
03:08person and say, we think you may be the subject of a cyber attack. Could we search your communications
03:12so that we can find out who it is and try to forestall it? And that person could then consent.
03:17And that's also a well-recognized exception under the Fourth Amendment. So the committee very carefully,
03:24and Chairman Biggs very carefully, built in the protections that the FBI might legitimately need
03:33to be able to conduct searches without a warrant. So the long and short of it, the Biggs' amendment
03:38dealt with what you termed the exigent circumstances. Yes. Is that correct? It had an express exception
03:44for that. And it also exempted metadata searches. So the FBI could actually look to see who was
03:51communicating with whom under Chairman Biggs' amendment. It just couldn't actually search the
03:56communications themselves. I want to ask you another question, and I'm not sure if you're going to let me
04:01know if you can answer it or not. In 2021, the FBI lawyer, Kevin Clinesmith, was sentenced to 12
04:08months probation versus a typical five years. Why was that? Well, it was an unfortunate slap on the
04:18wrist. And I'm separately representing Carter Page in his litigation against the department. And I thought
04:24it was an outrage that Clinesmith got such a low sentence for such an egregious act of dishonesty
04:30before the FISA court. Who was the judge in that FISA court case? I believe it was Judge
04:35Bosberg. Yeah. So, Mr. Chairman, this is the same Judge Bosberg that we see regularly in the news these
04:42days. The ultimate insider judge here in Washington, D.C. gives a slap on the wrist to Kevin Clinesmith,
04:50who misrepresented the information out there to the detriment of, sounds like, your client,
04:57and now is doing everything he can to keep foreign alien criminals in the United States rather than
05:05sending them back home. I yield. Gentleman yields. Chair recognizes the ranking member of the entire
05:11committee, Mr. Raskin. Thank you, Mr. Chairman. A lot of people were willing to give 702 a chance
05:16because of the various exceptions.