March 15, 2023

The Honorable Mark Warner
Chairman
Senate Select Committee on Intelligence

The Honorable Mike Turner
ChairmanHouse Permanent Select Committee on Intelligence

The Honorable Dick Durbin
Chairman
Senate Judiciary Committee

The Honorable Jim Jordan
ChairmanHouse Judiciary Committee

Dear Chairman Warner, Turner, Durbin and Jordan:
We write to urge you to hold hearings on the government’s surveillance of Americans given the latest
revelations of unconstitutional surveillance by the intelligence community made at last week’s hearings
held by the Senate Select Committee on Intelligence and House Permanent Select Committee onIntelligence. Given numerous additional examples in recent years of similar abuses, this year’s Section
702 reauthorization debate already necessitated rigorous Congressional hearings and oversight.
However, the few short hours of testimony from last week should reinforce to Members that any
serious effort to rein in the abuses by the intelligence community must include significant changes toSection 702 and other surveillance activities that impact Americans.
Specifically, during Thursday’s House Intelligence Committee hearing, Representative Darin LaHood
identified himself as the Member of Congress whose name was unlawfully used to search Section 702acquired communications without a warrant, as initially reported in Wired. That same reporting also
indicated that the FBI had conducted warrantless searches of Section 702 data connected to a local
political party and improper queries based on a tip that suggested racial profiling. Americans are rightly
concerned that if even Members of Congress are not shielded from such abuses from intelligenceagencies, that they themselves are at serious risk of having their most sensitive communications
unlawfully spied upon.
The testimony at the Senate Intelligence Committee’s hearing earlier in the week was equally disturbing.
In it, Director Wray attempted to argue that the FBI has made adequate reforms in its surveillance
operations by citing a decline in warrantless searches of Americans’ data. His comments suggest that theFBI conducted more than 200,000 searches of Americans’ communications in 2022. However, inprevious statements, the FBI indicated that previously reported US person query numbers wereoverinflated due to duplication. If this is the case, then Congress should be equally skeptical of Director
Wray’s revised query statistics and associated claims of decreased U.S. person searches without a better
understanding of whether or how a change in counting methodology occurred. More broadly, thischange of reporting is provided within the context of a pattern of the intelligence community misleadingor concealing from the FISA Court, Congress, and the wider public the extent of warrantless searches ofAmericans’ data. Most importantly, for a program that is ostensibly about targeting non-US persons,hundreds of thousands, or even millions, of searches of Americans’ data in a single year indicates thatthe intelligence community is not using Section 702 solely for its stated purpose of surveilling non-U.S.
persons abroad.

Finally, during the Senate Intelligence Committee hearing, Director Wray stated that the FBI had
previously purchased commercial mobile phone geolocation data. This admission underscores a welldocumented pattern of other federal agencies circumventing existing statute requiring a court order for
obtaining such data from phone companies and internet services providers by instead acquiring suchdata through third-party data brokers. Not only should Congress consider reforms to close this loopholethat violate the Fourth Amendment rights of all Americans, but Members should also use this existing
practice by agencies to inform the entirety of its review of Section 702 and similar authorities. Without
clear and stringent protections, like clearly designating the exclusive means by which the government
may surveil Americans, intelligence agencies will develop novel interpretations of the law that enable
them to see into more and more of Americans’ personal lives.
During the House Intelligence Committee hearing, Representative LaHood noted that the intelligencecommunity’s request for a clean reauthorization of the 702 program is a “non-starter”. However, theseverity of these and other abuses over the years necessitate that Congress not merely make minor
tweaks to the status quo either. Congress must approach its review of the 702 program and related
intelligence operations with the same purpose as the original Foreign Intelligence Surveillance Act of1978: to rein in rogue intelligence agencies and ensure proper Congressional oversight.
This year’s Section 702 reauthorization debate presents a unique opportunity for Congress to work
together to accomplish much needed reforms. Meaningful proposals have long been pursued bymembers across the political spectrum who have rightly expressed concern with warrantlesssurveillance of people in the United States. To inform the debate, it is necessary for the committees ofjurisdiction to begin holding hearings with a focus on protecting the civil liberties of all Americans. We
stand ready to support the committees in their oversight duties and ensure that Congress acts boldly toreform Section 702 and related surveillance authorities.

Sincerely,

ChiefBrent Gardner
Chief Government Affairs Officer
Americans for Prosperity

Jason PyeDirector, Rule of Law Initiatives
Due Process InstituteAlex Marthews
National Chair
Restore the FourthSean Vitka
Senior Policy Counsel
Demand Progress Action

Bob Goodlatte
Senior Policy Advisor
Project for Privacy and Surveillance Accountability

Cesar Ybarra
Vice President of Policy
FreedomWorks

Jeramie Scott
Senior Counsel and Director of EPIC’s Project on
Surveillance OversightElectronic Privacy Information Center

Nora Benavidez
Senior Counsel and Director, Digital Justice & Civil Rights
Free Press ActionCc:
The Honorable Marco Rubio, Vice Chairman Senate Select Committee on Intelligence
The Honorable Jim Himes, Ranking Member House Permanent Select Committee on Intelligence
The Honorable Lindsey Graham, Ranking Member Senate Judiciary Committee
The Honorable Jerrold Nadler, Ranking Member House Judiciary Committee
Senate Select Committee on Intelligence Majority Members
House Permanent Select Committee on Intelligence Majority Members
Senate Judiciary Committee Majority Members
House Judiciary Committee Majority Members
Senate Select Committee on Intelligence Minority Members
House Permanent Select Committee on Intelligence Minority Members
Senate Judiciary Committee Minority Members
House Judiciary Committee Minority Members