'The Ultimate Insider Judge Here In Washington, DC': Tom Tiffany Calls Out Judge Boasberg

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At a House Judiciary Committee hearing before the Congressional recess, Rep. Tom Tiffany (R-WI) spoke about Judge Boasberg.

Transcript

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.

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