Jerrold Nadler

Mr. NADLER

Mr. NADLER. Mr. Chairman, I yield myself such time as I may consume. Mr. Chairman, I rise in strong support of H.R. 4639, the Fourth Amendment Is Not For Sale Act. I was proud to join Congressman Davidson in introducing this strong bipartisan legislation to help prevent government overreach by prohibiting the warrantless purchase of customer data. When the Judiciary Committee considered this bill at markup last July, it received, as Ms. Hageman noted, a rare unanimous 30-0 vote. When we download applications to our phones, we do so because we think they will make our lives just a little bit better. Weather apps tell us if we should bring an umbrella to work, delivery apps allow us to order groceries to our homes, and even employee work apps let us know the schedule for the week. Some of these convenience applications, however, can come with a dark side that they generally do not disclose to the American public, that the data they collect from us is immediately sold to the highest bidder. Third-party purchasers of this data, often referred to as ``data brokers,'' collect and package the data to sell to advertisers, market researchers, and government entities, to name a few. While many argue that the data they purchase from applications, websites, and social media is deidentified when it is sold, experts agree that just four points of data are needed to reidentify this data. Because of this, the purchaser of a dataset can piece together significant information about us. For example, they can track an individual's commuting habits, including which businesses they drive by on their way to work, when they are not at home, and even when they visit places that are not part of their normal commute. That anyone should have Americans' private information is highly troubling to me. But that our Federal Government can obtain it without a warrant should be troubling to all of us. The Supreme Court in U.S. v. Jones unanimously found that the government's use of a GPS tracker on the subject's car is considered a search under the Fourth Amendment. But in 2004, when the search in Jones occurred, not everyone had a phone in their pocket--the ecosystem of data brokers had not yet come to life. If the government wants to track a suspect today, they can go through the trouble of establishing probable cause in getting a warrant, which is what they should do, or Federal law enforcement could simply purchase data from a third party about the target of their operation. If that purchased data included location data for their subject, they would have no need for checks and balances, no need for a warrant, and during an ensuing criminal trial, no obligation even to tell the court how they obtained the initial data in the first place. We have the Fourth Amendment for a reason. If law enforcement wants to gather information about you, they should first obtain a warrant. They should have to go to a judge and explain why there is probable cause and why they need to know this information. When Federal law enforcement agencies purchase this data, however, they bypass our judicial system entirely. Our current state of affairs is clearly not what our Founders intended. Our right to privacy is being abrogated every day by those whose job it is to keep us safe. The Fourth Amendment Is Not For Sale Act would change that. Under the bill before us today, the Federal Government would be prohibited from exchanging anything of value for data from third-party vendors. The law already prohibits applications and websites, electronic communication services, and remote computing services from sharing information with the government without a warrant. The Fourth Amendment Is Not For Sale Act would extend that same rule to the data brokers to which they sell. This legislation would also ensure that the government does not circumvent these rules by prohibiting both indirect acquisition of information and agency sharing of third-party data. This way, Federal law enforcement could neither acquire prohibited data from individuals who purchase the data and then pass it on to the government, nor could they receive the desired data from non-law enforcement Federal agencies. The whole point of this bill is to stop the end run that is being done around the Fourth Amendment because of modern technology. I thank Congressman Davidson and Chairman Jordan for their leadership, and I thank my Democratic colleagues, Representatives Lofgren, Jayapal, and Jacobs for their hard work to get the bill to the floor. I encourage my colleagues to vote ``yes'' on this legislation, and I reserve the balance of my time.

Mr. NADLER. Mr. Chair, I yield 2 minutes to the distinguished gentlewoman from California (Ms. Jacobs).

Mr. NADLER. Mr. Chairman, I reserve the balance of my time.

Mr. NADLER. Mr. Chair, I reserve the balance of my time.

Mr. NADLER. Mr. Chairman, I yield myself the balance of my time. Mr. Chairman, data brokers collect massive amounts of information about Americans that can track and identify our most intimate details. It is bad enough that companies have access to all this personal data, but now the government can access this data, too, without securing a warrant just by purchasing it on the open market. This amounts to an end run around the Fourth Amendment. This legislation would end this practice and protect our privacy as the Constitution demands. Mr. Chair, I urge all Members to support it, and I yield back the balance of my time.

Mr. NADLER. Mr. Chair, I claim the time in opposition to the amendment, even though I am not opposed to it.

Mr. NADLER. Mr. Chair, I yield myself such time as I may consume. Mr. Chair, this amendment makes technical changes to the bill to clarify that it does not interfere with section 702 of FISA. FISA, including but not limited to section 702, is the only way the government should acquire data that in any other scenario would need a warrant. While we may have different opinions on how the government should treat the incidentally collected U.S. person data, as we debated last week, we should all agree that this bill is not intended to address or affect section 702 in any way. This amendment is a technical change to correct a minor error in the bill, and I hope that all Members will support it. I thank my colleague for offering the amendment, and I yield back the balance of my time.

Mr. NADLER. Mr. Chair, I claim the time in opposition to the amendment, although I am not opposed to it.

Mr. NADLER. Mr. Chair, I yield myself such time as I may consume. Mr. Chair, this amendment will clarify that the underlying bill will not impact information that is publicly available, that the government has in its own databases, or that the government lawfully acquires. Scraping pictures and data off public social media accounts for facial recognition technology is certainly a problem, but it is not this problem. It does us no good to conflate one surveillance issue with another. This legislation is intended to prohibit the purchase of data in cases where Federal law enforcement would otherwise need a warrant. License plate databases, facial recognition technology platforms, and advanced policing technologies are often powered by publicly available data. We are not here to impede government access to data that is public or that law enforcement already contains in its databases. While I have serious concerns about the irresponsible deployment of advanced policing technologies, those are fights for another day. Mr. Chairman, I thank the gentleman for his amendment. I encourage my colleagues to join me in supporting it, and I yield back the balance of my time.

Mr. NADLER. Mr. Chair, I claim the time in opposition.

Mr. NADLER. Mr. Chair, this amendment would create exceptions for government purchase of data that a Federal agency can already lawfully access without a warrant. I am sure that my colleague from New York means well, but I worry that this amendment would create confusion in the long run rather than clarify an area where we both agree. I agree that the government should continue accessing information that it is already able to acquire without a warrant, but we should be closing the door on government purchase of third-party data, period. First, it is unclear how a data broker subscription for ``only information that law enforcement could acquire without a warrant'' would work. By suggesting that some data could be purchased, we open up a Pandora's box of hypotheticals instead of turning off a tap that should not be on to begin with. Second, when section 2703 of the Electronic Communications Privacy Act was passed back in 1986, the internet was in its nascency. At that time, there were few, if any, data brokers purchasing data and selling it to the government. I am confident that if they had existed, then third parties' data sales would have been included in the prohibition against service providers sharing their data with the government without a warrant. As I said, I appreciate what the gentleman is trying to do, but I cannot agree with this approach. Mr. Chair, I oppose the amendment, and I encourage my colleagues to do the same. I reserve the balance of my time.

Mr. NADLER. Mr. Chair, I yield myself the balance of my time. Mr. Chair, I urge my colleagues to vote against this amendment. We all support the police and criminal investigations, but we all support, we hope, the Fourth Amendment, the requirement to get a warrant for probable cause in order to search something or somebody. This bill is to avoid an end run around that by the government purchasing information from data brokers for which they should need a warrant. This amendment would gut that and destroy the whole purpose of the bill. The bill is essential to protecting liberty and to protecting the protections of the Fourth Amendment. Mr. Chair, I urge the defeat of this amendment, and I yield back the balance of my time.

Mr. NADLER

Mr. NADLER. Mr. Chair, I yield myself such time as I may consume. Mr. Chair, I rise in strong support of meaningful reform to FISA section 702 and in strong opposition to a mere fig leaf or, even worse, an expansion of 702. Unfortunately, we will not know which of these paths we are taking until the conclusion of this debate. What I know at this moment is that the base text before us right now is completely inadequate. Although it has some perfectly fine provisions, it does not represent real reform. Some of the proposed amendments that will be coming up today would take us in the wrong direction, and changing the sunset from 5 years to 2 years does absolutely nothing to improve the bill. Ultimately, this legislation should only move forward if it contains an amendment to mandate that the intelligence community obtain a probable cause warrant before they search the 702 database for Americans' private communications. Some of my colleagues appear confused about how 702 collection works and what we mean when supporters of a warrant requirement refer to ``backdoor searches'' for U.S. person information. Let's be clear about what we are talking about. FISA section 702 permits the intelligence community to sweep up the communication of foreign targets located overseas. When these communications are obtained, they go into what is known as a 702 database where all the 702 data is housed. If the U.S. Government wants to target a U.S. person for foreign surveillance, U.S. person meaning an American or legal permanent resident, they already can. They do this by getting a warrant under title I of FISA, a separate and distinct part of FISA from section 702. The government cannot target Americans under 702 because 702 does not protect the constitutional rights of the targets of the surveillance. Foreigners not located on U.S. soil do not have constitutional rights, so this is not a problem. What is a problem, however, is that massive amounts of Americans' communications are still swept up in 702 searches. If a U.S. person communicates with a foreign target, that American's communications with the target end up in the 702 database, too. While we do not know precise numbers, we know that a vast amount of Americans' communications is swept up every year. The intelligence community is not supposed to search the 702 database for U.S. person identifiers, like our names, phone numbers, and addresses without cause. Searching for Americans' private communications in the 702 database, communications the government otherwise would not have access to without a warrant, is the constitutional equivalent of conducting a warrantless search. We know that the government breaks this law all the time--278,000 times, in fact, at last count in 2021 alone. Officials are supposed to find it reasonably likely that a query will turn up evidence of a crime or foreign intelligence information, but that did not stop them from searching for protesters, politicians, and political donors, to name a few, without proper predicate. Because of these repeated violations, Chairman Jordan and I agree that the only way to preserve Americans' privacy and constitutional rights is to require the intelligence community to obtain a probable cause warrant when they want to search the communications of Americans housed in the 702 database. This is a basic tenet of the Fourth Amendment. Now, Chairman Turner stated incorrectly that the proposed warrant requirement gives constitutional rights to suspected terrorists abroad. Nonsense. The warrant requirement does not change any aspect of surveillance of valid targets under section 702, nor should it. The problem is that when we surveil the internet, we sweep up massive amounts of U.S. person information, and the warrant requirement we propose would apply the Fourth Amendment to that information--nothing more, and our Constitution demands nothing less. We have repeatedly heard some of our colleagues tell us that the sky is falling; that a probable cause requirement would end U.S. person searches of the 702 database, but there are no facts to back up these claims. We will be considering an amendment today to add a warrant requirement for U.S. person searches of the 702 database. This essential amendment makes exceptions for victim consent, cybersecurity cases, and exigencies, that is, emergencies. Thus, the vast majority of these searches can continue without a warrant, but for the small percentage of searches of Americans' communications that would be affected, the government should have probable cause to search their communications. It is simply unfair to ask the intelligence community to both zealously protect our security while also protecting the constitutional rights of those surveilled. America's system of checks and balances exist precisely for cases such as this, where two considerations must coexist at odds with one another. For too long, FISA section 702 has enabled the surveillance of Americans without adequate safeguards to protect our civil liberties. Americans need Congress to enact these guardrails, and with section 702 expiring soon, we have a rare opportunity to protect Americans' privacy while giving enforcement the tools they need to keep us safe. Mr. Chair, I encourage my colleagues to vote ``no'' on this legislation unless a probable cause warrant is adopted, and I reserve the balance of my time.

Mr. NADLER. Mr. Chair, I yield 3 minutes to the distinguished gentlewoman from Washington (Ms. Jayapal).

Mr. NADLER. Mr. Chair, I yield 4 minutes to the distinguished gentlewoman from Texas (Ms. Jackson Lee), the ranking member of the Crime and Federal Government Surveillance Subcommittee.

Mr. NADLER. Mr. Chair, I yield an additional 30 seconds to the gentlewoman from Texas.

Mr. NADLER. Mr. Chair, I reserve the balance of my time.

Mr. NADLER. Mr. Chair, I yield myself such time as I may consume. Mr. Chair, the suggestion has been made that the warrant requirement is extreme. Let's be clear: There is nothing extreme about this idea. Over a decade ago, a group of intelligence experts convened by President Obama unanimously recommended requiring a warrant for U.S. person queries of section 702 data. That group included Michael Morell, former Acting Director of the CIA and Richard Clarke, former Chief Counterterrorism Adviser to President George W. Bush. These top national security officials understood that we can protect national security while respecting the Fourth Amendment rights of Americans. The House of Representatives has twice passed amendments with a warrant requirement for backdoor searches by large bipartisan majorities. Some of my colleagues who spoke against this amendment today, including former Speaker Pelosi, have voted more than once for this reform. Over 75 percent of Americans support this reform. Calling something extreme doesn't make it extreme, and this is an idea that has been in the mainstream for over a decade. Mr. Chair, I reserve the balance of my time.

Mr. NADLER. Mr. Chairman, I yield myself the balance of my time. Chairman Jordan and I agree on very little, but we are united in our belief that adding a warrant requirement to section 702 is absolutely necessary before we consider supporting reauthorization of these authorities. I will reserve judgment on final passage of this bill until we see what amendments pass, but I urge Members to join us in supporting real reform. Real reform means, at the minimum, the warrant requirement to give effect to Americans' constitutional rights. Mr. Chair, I yield back the balance of my time.

Mr. NADLER. Mr. Chairman, I rise in support of this absolutely essential amendment. In 2021, the intelligence community conducted over 278,000 inappropriate searches of Americans' private communications. They broke the law more than 278,000 times. Mr. Biggs and I do not agree on much, but we agree that the status quo is unacceptable. Without a probable cause warrant requirement, it is clear that the intelligence community will go on breaking the law and violating Americans' rights in the process. As I have said again and again, if the government wants to peruse the private communications of Americans, they can go to title I of FISA. Section 702 has fewer privacy protections because it is meant for foreigners located overseas--people who do not have constitutional rights. Any Americans' data we collect under 702 is collected at a standard far below the Fourth Amendment, and that should not be. I strongly support this amendment, and I encourage my colleagues to vote ``yes.''

Mr. NADLER

Mr. NADLER. Mr. Speaker, I rise today to honor the life of Lou Sepersky, whose decades of dedicated public service and visionary contributions have left an indelible mark on New York City. I was privileged to have known Lou for over sixty years, and it was an honor to work with him as a colleague and call him my friend. As the President of MetroEast, he played a pivotal role in reigniting the momentum for the long-delayed full-build Second Avenue subway. His relentless advocacy and leadership were instrumental in securing support and federal funding for this vital project. Lou's dream for the subway to extend from 125th Street, cutting across Manhattan to Hanover Square, was not just a transportation plan but a vision for connecting and transforming communities. His deep commitment to public service shone through his extensive involvement with Manhattan's Community Board Six. Serving with distinction for over five decades, he became the longest-serving Community Board Member in the city. Lou was a fervent advocate for public spaces. He played a key role in creating the East Midtown Greenway and developing Sutton Place Park, ensuring they were inclusive and enjoyable for all. His contributions were critical in the remapping and expansion of Dag Hammarskjold Plaza and the creation of Stuyvesant Cove Park. Lou's dedication to his community and city extended into the political arena as well. He was a delegate at the Democratic National Convention in 1992, a Democratic candidate for the New York State Senate, and a Democratic District Leader in East Midtown, Manhattan. As we reflect on Lou's remarkable life and legacy, let us remember his humor, his thoughtfulness, and his relentless pursuit of a better and more connected New York. He will be deeply missed, but his contributions will continue to benefit our city for generations to come.

Mr. NADLER

Mr. NADLER. Mr. Chair, had I been present, I would have voted ``aye'' on rollcall No. 73. Amendment No. 7 Offered by Ms. Tlaib

Mr. NADLER

Mr. NADLER. Mr. Speaker, I yield myself such time as I may consume. Mr. Speaker, I want to start by expressing my deepest condolences to Laken Riley's family. The pain of losing a child is something no parent should have to go through. The alleged perpetrator should be prosecuted to the fullest extent of the law. By all accounts, Laken was a kind and gentle soul, beloved by everyone around her. May her memory be a blessing. Unfortunately, instead of coming together to express our sorrow for Laken's tragic loss, the majority appears to be exploiting her death for yet another partisan political stunt. Rather than approaching this tragic event in a thoughtful manner, Republicans appear to have just thrown together language from existing unrelated bills that target and scapegoat immigrants to score cheap political points in an election year, while doing nothing to address the situation at the border. This approach is fundamentally unserious. As if to emphasize the point, the author of this legislation spent the weekend promoting anti- Semitic memes on Twitter. At base, this bill is a rinse and repeat of the majority's unserious attempt to keep immigration in the news: pick a crime; paste it into a template bill with sweeping, unrealistic immigration consequences; and then require detention and deportation of certain immigrants merely accused of committing such a crime--no due process required--all so that you can demonize immigrants and sound tough without actually making this country safer. The legislation before us today would subject to mandatory detention any undocumented immigrants merely arrested or charged with committing an act of theft, larceny, or shoplifting, along with those who are convicted or who admit to committing such acts. Let's think about that. Someone who is arrested and who was never even charged with a crime is now going to be subject to mandatory immigration detention? The case of Laken Riley is a tragedy, but as is often said, hard cases make bad law. Under this bill, committing a misdemeanor shoplifting, or even committing no crime at all, can result in a DACA or TPS recipient, someone who may have been in this country for decades, being subject to mandatory detention. Sadly, there are countless real-life examples of people getting arrested because of mistaken identity through erroneous witness identification, biographical similarities to perpetrators, and errors caused by faulty facial recognition technology. In a markup we had in the Judiciary Committee last month, Mr. Massie discussed how mistaken identification can deprive someone of their constitutional rights. He noted very real concerns about racial disparities in the development of artificial intelligence and facial recognition tools. These tools have led to numerous erroneous arrests, mostly of people of color. For example, just over a year ago, a Detroit woman was arrested for robbery and carjacking after she was improperly identified as the perpetrator by automatic facial recognition search. She was 8 months pregnant when she was arrested. After being held by the police for 11 hours, she was released on a $100,000 bond. It took a month and two hearings for the case against her to be dismissed. Under this bill, however, if this woman had been on DACA or TPS status, ICE would have been required to detain her upon release, and her U.S. citizen son would have been born in immigration detention even though she had committed no crime. Mandatory detention of innocent people is not a reasonable or sensible policy choice. This is not where we should be focusing our limited enforcement resources. It is important to remember that this bill would subject more people to mandatory detention at a time when Republicans refuse to give the Department of Homeland Security the resources it needs to carry out its policies. The Biden administration is currently detaining 39,000 people a day. That is 5,000 more people than Congress has even provided funding for it to detain. Congress has never appropriated, and no administration has ever requested, sufficient resources to detain all noncitizens who fall under the ``mandatory detention'' categories. Even former President Trump never tried to detain all migrants subject to mandatory detention. House Republicans know this, but instead of facing that reality and providing the resources necessary to address weaknesses in the immigration system, they would prefer to demagogue the issue, and they bring us measures like this. If that wasn't bad enough, this bill also purports to give State attorneys general standing to sue in court for perceived violations of certain sections of the Immigration and Nationality Act, hoping to convince the judicial branch to impose draconian immigration policy preferences that MAGA Republicans have failed to get through the political branches of the Federal Government. This bill simply declares that States have standing to sue so long as the State or its residents suffer almost any degree of harm, no matter how trivial, appearing only to exclude financial harms that are less than $100. We should note that this provision is almost certainly unconstitutional. Just declaring that there is standing does not make it so. Just last year, the Supreme Court addressed the issue of States' standing to sue the Federal Government over immigration enforcement matters, which this bill appears to be a half-baked attempt to circumvent. In an 8-1 decision, the Court held that Texas and Louisiana lacked Article III standing to bring suit against the Federal Government over its alleged violation of some of the very same immigration statutes that this bill would purport to grant standing to the States to sue over. In rejecting the States' standing argument, the Court noted, among other things, that lawsuits alleging insufficient arrests or prosecution run against the executive branch's Article II authority to enforce the law, which includes the discretion to determine enforcement priorities in the face of lack of resources and shifting public safety and public welfare needs. This bill also goes directly against the Supreme Court's settled precedent in Spokeo, Inc. v. Robins, which explicitly states that a statutory right to sue does not constitute an injury for purposes of standing. Be that as it may, settled precedent, much like responsible governance, doesn't seem to matter much to the majority. Time and again, Republicans have refused to engage in bipartisan immigration reform. At the behest of Donald Trump, Republicans dismissed out of hand a bipartisan Senate border bill that Senate Minority Leader McConnell called the strongest border bill in 30 years. In October, the Biden administration sent Congress a supplemental funding request, which included an additional $14 billion for border security. House Republicans refused to schedule a vote on this funding request, which would provide the Biden administration the resources it needs to secure the border and would provide additional support for communities receiving migrants. Both these bills would have allowed the Biden administration to hire thousands more asylum officers and asylum and immigration judges, so asylum hearings happen in weeks, not years. This would help put an end to what my Republican colleagues refer to as catch and release. That is the procedure in immigration law that has been used by every administration for decades. What they mean by that is you catch someone, but because of lack of resources, his court date is 3 years from then, so you have to release him pending the court date because he has a credible claim to asylum. However, with the appropriation that the Biden administration had requested, it could be done in weeks, not years, and we wouldn't have the problem of the so-called catch and release. All they can point to is H.R. 2, which last week had a grand total of 32 ``yes'' votes in the Senate when it was brought up for a vote. Instead of rushing yet another partisan stunt to the floor, the majority should work with Democrats to pass bipartisan solutions to address the situation at the border. That would be a far better way to truly honor the lives of those we have tragically lost. Mr. Speaker, I reserve the balance of my time.

Mr. NADLER. Mr. Speaker, I yield such time as he may consume to the gentleman from Maryland (Mr. Ivey), a member of the Judiciary Committee.

Mr. NADLER. Mr. Speaker, the previous speaker said that illegal aliens who committed crimes should be detained, and, indeed, they should. However, this bill says that illegal aliens who somebody thinks may have committed a crime should be detained mandatorily. That is un- American.