Author Archives: Alex Marthews

Section 702 Reform: Actions For Thanksgiving Week

Congress is debating whether to renew the law that allows the FBI and other agencies to conduct warrantless searches on Americans’ communications, Title VII of the FISA Amendments Act of 2008. Too much of the approach so far by most legislators has been to try to find the sweet spot of being able to say to the public that they have passed a “reform”, without actually offending the intelligence community by meaningfully limiting the surveillance that is being done.

This week, the ask is as follows, and works for Representatives and for Senators. The fuller explanation is in “Legislative Analysis” below.

– Cosponsor the USA RIGHTS Act
– Oppose the FISA Amendments Reauthorization Act
– Oppose the inclusion of any 702 reauthorization provisions in an end-of-year omnibus spending bill

For the USA Liberty Act, the main action is in the Senate. When you call your Senators, please ask them to:

  • Senators should cosponsor the Senate USA Liberty Act; and
  • Make sure that the language on FBI backdoor searches continues to reflect the Senate bill as introduced, rather than adopting the House language; and
  • Support any amendments that restrict use of 702 information to topics generally covered by the known certificates for it: terrorists, spies, proliferation, nation-state hacking, and other critical infrastructure issues, as the House USA Liberty Act does; and
  • Support any amendments that restrict unmasking in the manner that the House USA Liberty Act does; and
  • Encourage the adoption into the Senate USA Liberty Act of other elements of the excellent USA RIGHTS Act.

Scroll down for detailed legislative analysis and commentary.


Legislative Analysis

Section 702, the most controversial part of Title VII of the FISA Amendments Act (“FAA”) of 2008, is due to sunset December 31, 2017. Unless Congress acts in some way, this legislative authority for the NSA’s mass surveillance programs, including PRISM and UPSTREAM, will expire.

Digital Fourth’s primary position on this is: Good. FAA was a cowardly, retroactive Congressional capitulation to a Bush administration which had been caught conducting unconstitutional and illegal mass surveillance. By rights, the people responsible for authorizing it ought to have been jailed, and the databases arising from it should have been destroyed. Meaningful personal penalties for those involved in these abuses, like with torture, could have made it less likely to happen again. Since Title VII of FAA last came up for reauthorization at the end of 2012, the Snowden revelations have uncovered arrays of new information about how badly the intelligence community is abusing its powers, and how much they have lied to Congress and the public about what they have been doing in the name of “safety.”

However, we recognize that the Trump administration and about one-third of Congress would nevertheless like to see these powers renewed permanently and without reforms, out of desperation to portray themselves as tough on terror. Despite our best efforts, there are nothing near the numbers there should be in Congress willing to see these powers sunset altogether.

The best legislative fix available to Congress, the USA RIGHTS Act, was introduced by Sen. Rand Paul (R-KY) and Sen. Ron Wyden (D-OR) in the Senate, and Rep. Zoe Lofgren (D-CA) and Rep. Ted Poe (R-TX) in the House. It is the only thorough effort to fix the problems with Section 702 warrantless surveillance of Americans. The USA RIGHTS Act would not allow the FBI, or any other government agency, to query the database using search terms relating to a US person, without a warrant. It would protect whistleblowers, end “about” searches, allow more lawsuits to be brought challenging NSA surveillance, give the Privacy and Civil Liberties Oversight Board subpoena power, and shorten the next sunset period to four years. Given that the intelligence agencies and FBI have lied to the courts, to Congress and to us about what they’ve been up to, and given the Trump administration’s penchant for political persecution, USA RIGHTS looks to us, if anything, like a generous accommodation to the overmighty intelligence agencies.

What both House and Senate leadership would probably mostly prefer is an outcome where the Senate Intelligence Committee’s “FISA Amendments Reauthorization Act” (“FARA”) either passes as stand-alone legislation or gets folded into an omnibus spending bill, enabling Congressmembers to get home for Christmas and not come back till the New Year. The problem with this is that FARA is really, really awful. It provides a straightforward roadmap for the NSA to restart “about” collection. It offers an eight-year sunset date for these powers, versus four in the USA RIGHTS Act. The Attorney-General (Jeff Sessions, remember) is given unreviewable authority to allow searches of the NSA database for serious crimes and vaguely defined cybersecurity purposes. This is essentially a bid by a captured oversight body, the Senate Intelligence Committee, and its chairman Richard Burr, to give the intelligence community exactly what it wants; its improvements to reporting requirements by the Attorney-General and the FISC are there purely to be able to claim that “reform” has been accomplished.
Despite – or, more likely, because of – the awfulness of FARA, the prospect of its being folded into an omnibus, must-pass spending bill is a serious one.

Before Sens. Leahy and Lee introduced the Senate USA Liberty Act, it was not clear how it could realistically be avoided. Now, their stronger language on the warrant requirement gives us, as a Fourth Amendment nonprofit, something to fight for that has some chance of passage. We’re therefore encouraging both the USA RIGHTS Act as the best legislative vehicle, and a modified version of the Senate USA Liberty Act as the next-best legislative vehicle. The Senate USA Liberty Act should be modified because (a) it does not protect Tor users, numbering nearly half a million in the US on any given day; because (b) it does not limit the uses of 702 information to the previously established “certificates” for its use; and because (c) it does not require transparency into “unmaskings” ordered by the White House.

Commentary: A Note on Good Faith

Commentators frequently bemoan the decline in America over the last few decades in trust in institutions and in one another. As an organization drawing support from people on the right, on the left, and many places in between, we serve as a rare space where Americans can still work together towards common goals, even when coming from very different positions on political and social issues. We deeply value and cultivate that sense of trust in one another. It’s genuinely important to believe that the vast majority of our fellow Americans come by the beliefs they have no less honestly than we come by our own, and that they honestly believe that their views, if implemented, would make the country a better place. Without that bedrock of mutual trust, we would be able to achieve nothing.

Trust in institutions, however, is a very different and much more difficult thing. In truth, the last fifteen years have given Americans plenty of good reason to distrust their institutions. Our political elites manipulated people’s grief and anger over September 11th to bring us into a highly profitable state of unending war. They crashed the economy, left the people who crashed it unpunished, and made the rest of us pay for their ineptitude. It often seems the case that the two major parties agree with one another most easily when there is a project afoot that will really screw the public. And sadly, the governmental institutions with the highest remaining general levels of trust – the military and the police – also don’t really deserve it. It has now been three generations since the military went to war to “protect our freedoms”; their deployments typically aim at shoring up an empire the world doesn’t particularly want, and from which the Founders would back away in horror. The police shoot too many innocent, disproportionately black Americans, routinely violate people’s rights, and almost never face accountability for doing so. The trust that has been squandered will not return by itself, and will certainly not return while elites flaunt their self-exemption from the increasingly harsh state surveillance and punishments the rest of us are subject to.

When it comes to the laws constraining surveillance by the US government’s many intelligence agencies, the problem of trust becomes especially acute. Intelligence professionals cannot reveal absolutely everything about what they do in real time; some secrecy is inherent to espionage. However, giving them a free hand in what they do leads to growing constraints on our ability to think, speak, move and associate without being monitored by the state’s ever-more-intrusive eyes. We are asked constantly to trust that whatever they are doing is in our interests, and will thwart terrorism; but our only safeguards that this is true are the asseverations of most of the few members of Congress “read into” these programs. We have a right to know what kinds of surveillance are being conducted in our name, but Congressional leaders haven’t exactly been forthcoming about it. In practice, we only have the tools now to evaluate these programs because of what Snowden and his fellow whistleblowers did. We are all, like worshipers in the early days of Protestantism, becoming suddenly much more literate in the ways the government exercises power over us, but we are hardly given a real choice over whether they do surveil us or not. So, the previous situation of blind trust in Congress to keep watch over the spies will no longer do. In reality, Congress seems to mostly have very little grasp of what’s happening, or if Congressmembers do understand it, they keep that knowledge to themselves, out of a sense that actually doing something about it only has political downsides for them.

We must therefore argue against making policy on the basis of an assumption, conscious or unconscious, that either Congress or the intelligence community are operating in good faith. In the legal and regulatory spheres, as opposed to the political, always presuming good faith cripples effectiveness; if we could always presume good faith, no law or regulation would even be needed. The legislators who created Section 702 may possibly have believed that the spies would be constrained by it, to not continue spying on Americans; now, in 2017, that belief is no longer reasonable, if it ever was. We now know the spies wordsmithed their way around 702 and created the mass surveillance programs they wanted anyway, including PRISM and UPSTREAM. Now, we must tackle the challenge of instituting reforms when the agencies being reformed are both highly influential in the process and really, really not working in good faith. The fact that legislation continues to be proposed and supported by leadership that presumes good faith on the part of the intelligence community, suggests a Congress so captured that it cannot be said to be really in charge of the intelligence community at all.

Call Your Rep: MA House Republicans Try To Pass Wiretap Expansion The Senate Rejected

As we suspected, there’s yet another attempt to expand the wiretap law. Even though the Senate, when they passed the criminal justice reform bill, voted 14-22 against expanding the wiretap law, that isn’t stopping law enforcement trying again via the House version. Minority Leader Rep. Bradley Jones has introduced three amendments expanding the wiretap law to the House version of the criminal justice reform bill (H. 4011) which is being debated today, tomorrow and Wednesday. These amendments are #53, #115 and #174. Please call your Rep before Nov. 15 and let them know that they should vote against all three of these amendments.

Since Digital Fourth began in 2012, we have advocated that warrant-authorized wiretaps should be treated as an extraordinary, not an ordinary, instrument for law enforcement; that they should be reserved only for the most serious of crimes; and they should not, as these amendments do, be expanded to cover a vast array of ordinary criminal investigations. Amendments #53 is especially pernicious, in mandating technical assistance by tech firms to break their encryption to assist law enforcement; #53 and #174 both also expand wiretaps to cover interceptions enabled by “pen register” orders; this could greatly expand ordinary people’s vulnerability to surveillance just by communicating with someone whose communications are considered relevant to a crime.

Amendment #53 expands the wiretap provisions to cover electronic methods of surveillance in addition to recording phone calls or wearing a physical wire. Wiretaps may be conducted of people not located in Massachusetts. The definition of what is a “wire communication” is greatly expanded to cover the whole panoply of modern communications, excepting tone-only pagers, GPS trackers, and electronic funds transfer information. The definition of an “interception” is expanded to cover the kinds of interception enabled by a “pen register” order, for which a showing of reasonable suspicion or probable cause is not required, and which covers the interception of location and header metadata. The definition of “contents” is clarified. The “designated offenses” for which you can conduct a wiretap are greatly expanded. Police body-worn cameras are excluded from needing a wiretap warrant. The default length of a wiretap warrant authorization is lengthened from 30 to 40 days. Some useful precision is added to how a warrant should be issued, requiring that it identifies the issuing agency, that the warrant be executed as soon as is practicable. that it must minimize incidentally collected information, and that it must end at the end of the investigation. Warrant renewals are extended from 15 to 30 days; the maximum time a warrant can run is extended from one year to two. Warrants can now be executed by contractors reporting to law enforcement instead of only by law enforcement officers designated by the applicant for the warrant. Last, the amendment requires tech firms to break their encryption if necessary in order to assist law enforcement in the execution of a warrant, rendering all of our communications more insecure.

Amendment #115 is narrower; it amends the preamble to indicate a general expectation that law enforcement can use “modern methods of electronic surveillance” and greatly expands the designated offenses to the same list as Amendment #53.

Amendment #174 is almost identical to Amendment #53, though it excludes the “technical assistance” provision.

Turn Out & Testify: Cambridge Public Safety Committee Public Hearing, 10/18, 6:30pm

Do you think the Cambridge Police Department should obtain invasive surveillance equipment like drones and facial recognition technology, in secret? We don’t.

That’s why we, along with the ACLU of Massachusetts and other allies, are working to pass a local ordinance in Cambridge to require a transparent and democratic process before police can purchase new surveillance equipment. Community input and transparency are critical to ensure new technologies don’t get out ahead of our constitutional rights.

Join us on Wednesday, October 18 at Cambridge City Hall at 6:30pm for the Public Safety Committee Hearing, to learn about the ordinance and raise your voice in support of these commonsense protections.

As Cambridge residents, it’s important to be informed and engaged in the conversation about what Cambridge police are doing, and why. Hope to see you there!

Turn Out & Testify Tuesday Oct 10 To Keep Weapons Of War Off Our Streets: Statehouse Room B-2, 10am


In Massachusetts, towns like Haverhill, New Bedford and tiny Rehoboth have recently acquired mine-resistant military assault vehicles for just the cost of shipping from the federal government; police in Palmer, MA have acquired a camera reconnaissance system designed to detect minefields; and Boston police deployed stingrays and a drone, all without the community’s review or consent.

We need as many people as possible to turn out and testify Tuesday at 10am at the State House, for the Legislature’s Joint Committee on Public Safety and Homeland Security’s hearing. Bills up for consideration include a Digital Fourth bill, H. 2503 (https://malegislature.gov/Bills/190/H2503), and an ACLU-sponsored bill, S. 1277 (https://malegislature.gov/Bills/190/S1277). Both our bill and the ACLU’s would require a public hearing and a vote by the elected officials of a Massachusetts town or city before the police acquire or deploy military-style equipment. Our bill would also include surveillance equipment of various kinds, including stingrays and drones; ACLU’s bill covers the state police and law enforcement councils, and ours does not. Both have merit.

With the Trump Administration’s reinstatement of the Pentagon’s controversial 1033 program that has flooded local law enforcement agencies with surplus military equipment, it is more important than ever that Massachusetts take a stand to control to stem the flow of battlefield ordnance into our cities and towns; especially as new research reveals a strong link between 1033 transfers to local law enforcement agencies and increased instances of officer-involved shootings (http://journals.sagepub.com/doi/full/10.1177/2053168017712885)

Whether you can come or not, please circulate this alert widely to other groups and listservs.
Hearing location: Currently room B-2. You’ll find the hearing room much more easily if you come to the entrance on Bowdoin St., round the side of the State House, not the Hooker Entrance at the front on Beacon Street.
Details of all bills up for consideration: https://malegislature.gov/Events/Hearings/Detail/2767\
For those who use it, we also have a Facebook page up to rally people to come: https://www.facebook.com/events/505668729766313/.

This effort is also supported by:
Black Lives Matter – Boston
Black Lives Matter – Cambridge
Jewish Voices for Peace – Boston
Massachusetts Pirate Party

Surveillance in the Age of Trump: Fighting Back in Cambridge, Somerville & Brookline

Come and be a part of our campaign to pass surveillance oversight ordinances in Massachusetts cities and towns!

On Thursday, June 15 at 6pm, local activists and city officials will be talking about ordinances to roll back the surveillance state. The ordinances would require local police to go through an open, democratic approval process before purchasing new surveillance equipment, and require the cops to report to elected officials about how they use surveillance technologies. Basic accountability at the local level is a critical step towards defending and expanding democracy in Cambridge, Somerville, and beyond.

At the event you’ll learn more about why we need the ordinance, the process at the local government level, and how you can get involved.

The event is co-sponsored by the ACLU of Massachusetts.

Details
Thursday, June 15, 2017
6:00PM-8:30PM
Cambridge Public Library
Central Square Branch
45 Pearl St, Cambridge, MA

We ask, but don’t require, that you RSVP, so we know how much pizza to order!

This event is free and open to the public.

Stingrays, Drones & Asset Forfeitures: Judiciary Hearing Monday June 5

If you have time Monday afternoon, and want to strike a blow for freedom, why not drop by Hearing Rooms A-1 and A-2 at the Massachusetts State House, and testify on one of three surveillance-related bills?

While the hearing starts at 1pm, there are so many bills on the agenda that it is likely to run to around 11pm. We don’t yet know when our bills will come up for public testimony, but a good guess would be any time from 2pm onward, with later being more likely. The practice of the Judiciary Committee is to “cluster” testimony on different topics, and to take first the bills that are likely to draw bigger crowds.

If you don’t have time for an open-ended commitment Monday afternoon/evening, please consider sending written testimony to the Senate Chair’s chief of staff at AnneJohnson.Landry@masenate.gov.

How Massachusetts’ Congressmembers Stack Up On Mass Surveillance

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At this point in the election cycle, 99% of the oxygen in the room is taken up by the presidential campaigns. But Massachusetts has nine House members and two Senators, and their views on mass surveillance matter. Next year, the main authority for the government’s mass surveillance programs, Section 702 of the FISA Amendments Act of 2008, expires, and Congress will crucially shape what comes next. This pair of articles from Just Security give you an idea of what’s at stake:

Unprecedented and Unlawful: The NSA’s “Upstream” Surveillance
Correcting the Record on Section 702: A Prerequisite for Meaningful Surveillance Reform

The Democrats have a lock on the congressional delegation, but this is an issue where elected officials within the same party often differ sharply; so without further ado, here’s where they stand: (For the full list for all states, check out Decide The Future, our scorecard site.)

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State Surveillance Cannot Save Us From Mass Violence

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After the appalling deaths of 49 people, and injuries to another 53, at a gay nightclub in Orlando this week, the presidential candidates leapt to push their own agendas. For Trump, it was about immigration; he magically transformed the US-born shooter into an Afghan, in order to emphasize that he was right about banning Muslim immigration. For Clinton, it was about gun control; she called for better background checks and limits on obtaining assault weapons. But when it came to surveillance, they might as well have been singing from the same hymn-sheet.

Clinton called for an “intelligence surge,” for increased internet surveillance and suppression of First Amendment-protected speech, to prevent “radicalization”; for propaganda promoting a US-government-seal-of-approval version of Islam; praised a “Countering Violent Extremism” (CVE) program that marks for intervention Muslims whose politics deviate from what the FBI thinks acceptable; and suggested that people on due-process-free terrorism watchlists should not be allowed to buy guns. Then, she wrapped her actual policy proposals in a cotton-wool language of diversity and inclusion, and claimed that this is not “special surveillance on our fellow Americans because of their religion.” She talked about “Islamism” rather than “Islam”, in order to claim to not be against Islam in itself—but in her world, the government gets to define who is a good and who is a bad Muslim. Perhaps the “bad Muslims” in her mind include citizens like Ayyub Abdul-Alim, imprisoned for refusing to inform on other Muslims for the FBI, who seems only have wanted to help strengthen his community; or Tarek Mehanna, imprisoned for translating al-Qaeda documents and posting them online, who held atrocious opinions but never planned or participated in a violent attack.

Trump, with a little less cotton-wool, actually says much the same about surveillance. Domestically, the “Muslim community” will “have to cooperate with law enforcement and turn in the people who they know are bad”, which is what CVE is intended to achieve, and what Mr. Abdul-Alim is in prison for resisting. Trump proposes an “intelligence gathering system second to none” that “includes better cooperation between state, local and federal officials,” and says that intelligence and law enforcement are “not being allowed to do their job.” And he wraps this up with vehement expressions of solidarity with the LGBT community.

There’s no evidence that mass surveillance, conducted and promoted by the government, works. In every country that is hit with any attack, large or small, there are calls for more surveillance, then more attacks, then more surveillance, then more attacks. It’s a vicious ratchet that we can only step off by becoming aware of it. France implemented its mass surveillance law before the Paris attacks: The law didn’t prevent them. France now lives under a state of near-martial law, where what we would call ordinary First and Fourth Amendment rights have been suspended. Britain is in the process of passing a new surveillance law that will enable the government to view your browsing history without a warrant, and already outlawed “glorifying terrorism.” They have gone farther along this ratchet than we have, but they are not reducing their chance of being attacked; instead, the purpose is to reduce the chance that a given politician will be blamed for “not doing enough” against terrorism. In truth, there is no perfect safety, and there is a small proportion of violent criminals in every country that the State is ultimately powerless to eliminate.

Our own mass surveillance systems led this “lone wolf” to be found and interviewed by the FBI, twice. But neither Clinton nor Trump articulate clearly what they thought the FBI should have done next, perhaps because there’s nothing more the FBI could lawfully have done regarding allegations of terrorist affiliation. If the aim of surveillance is for the FBI to interview suspected “radicals,” what should they do then to prevent an entirely hypothetical attack? Preventively detain them, without charge or trial, as happened to Jose Padilla? Preventively shoot them before they kill anyone else, as happened with Usaama Rahim? Do we want a State that, claiming to keep us safe, claims the right to do that to any of us? We are already part-way down that road; has it helped us so far?

State surveillance cannot save us from mass violence. It’s a poor guarantor of LGBT people’s safety. The sad truth is that there is a tendency to violence in every human being’s heart, irrespective of religion. Guns help violent people carry out their violent fantasies on a larger scale, and while comprehensive background checks wouldn’t have helped with this attack, the evidence suggests that they would probably help to prevent others. Mass surveillance doesn’t even enjoy that evidentiary advantage; last time the surveillance agencies were actually confronted on their assertion that mass surveillance had helped to prevent terrorist attacks, during the debate over the renewal of Section 215 of the PATRIOT Act, the agencies’ claims shriveled under scrutiny like an ice-cream in the sun.

More than that, the State perpetrates mass violence on a scale much vaster than a single violent, conflicted misogynist. On a daily basis, the lives the State takes in the name of the War on Terror far exceed the number of lives taken by terrorists. We’re busy implementing a cure that causes more pain than the disease, because the State does not value enough or see enough glory in a more peaceful path. Why, then, should we trust the State with more power over the lives of Muslims and other “extremists,” here or abroad?

Instead of the State, we should look to each other. We should consider how we can build bonds of friendship and support that will encourage kindness, courtesy, and an appreciation of our mutual humanity. As we volunteer together, worship together, take care of loved ones together, work on good causes and reach out across lines of race and religion to those in distress, we step by step build the thriving “beloved community” of which Martin Luther King spoke long ago, so that even when attacks happen, they cannot break our bonds to one another. And so long as we work to trust one another, we can guard safely our thoughts, our opinions, and our liberties, even against a State that urges us constantly, for the sake of “safety,” to abandon them.

Belgian Police Overwhelmed By…Mass Surveillance?

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Buzzfeed’s Mitch Prothero reported on the day of the Brussels attacks that “Belgian Authorities [Are] Overwhelmed By Terror Investigations“. He quotes a “Belgian counterterrorism official”, talking prior to the attacks, as having told him that:

[D]ue to the small size of the Belgian government and the huge numbers of open investigations — into Belgian citizens suspected of either joining ISIS, being part of radical groups in Belgium, and the ongoing investigations into last November’s attacks in Paris, which appeared to be at least partially planned in Brussels and saw the participation of several Belgian citizens and residents — virtually every police detective and military intelligence officer in the country was focused on international jihadi investigations. “We just don’t have the people to watch anything else and, frankly, we don’t have the infrastructure to properly investigate or monitor hundreds of individuals suspected of terror links, as well as pursue the hundreds of open files and investigations we have,” the official, who spoke on condition of anonymity because he was not authorized to speak to the media, said. “It’s literally an impossible situation and, honestly, it’s very grave.”

This icorroborates a major part of this blog – and our group’s – analysis of the surveillance state: That it generates so many false leads that it drowns law enforcement in data they can’t reasonably analyze or follow up on.

As a comparison, consider this comment from Michael Downing, deputy LAPD police chief and head of their counterterrorism unit, in 2012:


“[suspicious activity reporting has] flooded fusion centers, law enforcement, and other security entities with white noise; [the profusion of SAR reports] complicates the intelligence process and distorts resource allocation and deployment decisions.”

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Rein In The Warrior Cops: State House, Tuesday March 8, 10:30am

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Last year, across the country, over 1,100 people were shot by police.

In Massachusetts, we pride ourselves as being somehow different and more sophisticated than the rest of the country, but our police still shoot people at sixteen times the rate of people in Germany.

We have a situation so absurd that the police chief of the tiny town of Rehoboth can apply for, and receive, a $700,000 mine-resistant military assault vehicle, and the town doesn’t even bat an eye. They didn’t hold hearings, they didn’t take a vote, they just left it up to the police to decide how much to turn themselves into a military occupying force in that town.

Our police are trained, through initiatives like Urban Shield, to think of themselves as quasi-military, and the people as their enemies.

None of this is good enough.

This morning, Tuesday March 8, there will be a hearing at the State House on our bill to help deal with this, H. 2169. Come make your voice heard; head below the fold for the background.

H. 2169, “An Act assuring municipal control of military equipment procurement by local law enforcement”, sponsored by Rep. Denise Provost
Press Release
Digital Fourth’s Testimony to the Committee

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