[Congressional Record Volume 158, Number 87 (Monday, June 11, 2012)]
[Senate]
[Pages S3895-S3896]
EXTENDING FISA AMENDMENTS ACT OF 2008
Mr. WYDEN. Mr. President, the Select Committee on Intelligence has
just reported a bill that would extend the FISA Amendments Act of 2008
for 5 more years. I voted against this extension in the Intelligence
Committee's markup because I believe that Congress does not have enough
information about this law's impact on the privacy of law-abiding
American citizens, and because I am concerned about a loophole in the
law that could allow the government to effectively conduct warrantless
searches for Americans' communications. Consistent with my own
longstanding policy and Senate rules, I am announcing with this
statement for the Congressional Record that it is my intention to
object to any request to pass this bill by unanimous consent.
I will also explain my reasoning a bit further, in case it is helpful
to any colleagues who are less familiar with this issue. Over a decade
ago the intelligence community identified a problem: surveillance laws
designed to protect the privacy of people inside the United States were
sometimes making it hard to collect the communications of people
outside the United States. The Bush administration's solution to this
problem was to set up a warrantless wiretapping program, which operated
in secret for a number of years. When this program became public
several years ago many Americans--myself included--were shocked and
appalled. Many Members of Congress denounced the Bush administration
for this illegal and unconstitutional act.
However, Members of Congress also wanted to address the original
problem that had been identified, so in 2008 Congress passed a law
modifying the Foreign Intelligence Surveillance Act, or FISA. The
purpose of this 2008 legislation was to give the government new
authorities to collect the communications of people who are believed to
be foreigners outside the United States, while still preserving the
privacy of people inside the United States.
Specifically, the central provision in the FISA Amendments Act of
2008 added a new section to the original FISA statute, now known as
section 702. As I said, section 702 was designed to give the government
new authorities to collect the communications of people who are
reasonably believed to be foreigners outside the United States. Because
section 702 does not involve obtaining individual warrants, it contains
language specifically intended to limit the government's ability to use
these new authorities to deliberately spy on American citizens.
The bill contained an expiration date of December 2012, and the
purpose of this expiration date was to force Members of Congress to
come back in a few years and examine whether these new authorities had
been interpreted and implemented as intended. Before Congress votes
this year to renew these authorities it is important to understand how
they are working in practice, so that Members of Congress can decide
whether the law needs to be modified or reformed.
In particular, it is important for Congress to better understand how
many people inside the United States have
[[Page S3896]]
had their communications collected or reviewed under the authorities
granted by the FISA Amendments Act. If only a handful of people inside
the United States have been surveilled in this manner, then that would
indicate that Americans' privacy is being protected. On the other hand,
if a large number of people inside the United States have had their
communications collected or reviewed because of this law, then that
would suggest that protections for Americans' privacy need to be
strengthened.
Unfortunately, while Senator Udall of Colorado and I have sought
repeatedly to gain an understanding of how many Americans have had
their phone calls or e-mails collected and reviewed under this statute,
we have not been able to obtain even a rough estimate of this number.
The Office of the Director of National Intelligence told the two of
us in July 2011 that ``it is not reasonably possible to identify the
number of people located in the United States whose communications may
have been reviewed'' under the FISA Amendments Act. I am prepared to
accept that it might be difficult to come up with an exact count of
this number, but it is hard for me to believe that it is impossible to
even estimate it.
During the committee's markup of this bill Senator Udall and I
offered an amendment that would have directed the inspectors general of
the intelligence community and the Department of Justice to produce an
estimate of how many Americans have had their communications collected
under section 702. Our amendment would have permitted the inspectors
general to come up with a rough estimate of this number, using whatever
analytical techniques they deemed appropriate. We are disappointed that
this amendment was voted down by the committee, but we will continue
our efforts to obtain this information.
I am concerned, of course, that if no one has even estimated how many
Americans have had their communications collected under the FISA
Amendments Act, then it is possible that this number could be quite
large. Since all of the communications collected by the government
under section 702 are collected without individual warrants, I believe
that there should be clear rules prohibiting the government from
searching through these communications in an effort to find the phone
calls or e-mails of a particular American, unless the government has
obtained a warrant or emergency authorization permitting surveillance
of that American.
Section 702, as it is currently written, does not contain adequate
protections against warrantless ``back door'' searches of this nature--
even though they are the very thing that many people thought the FISA
Amendments Act was intended to prevent. Senator Udall and I offered an
amendment during the committee's markup of this bill that would have
clarified the law to prohibit searching through communications
collected under section 702 in an effort to find a particular
American's communications. Our amendment included exceptions for
searches that involved a warrant or an emergency authorization, as well
as for searches for the phone calls or e-mails of people who are
believed to be in danger or who consent to the search. I am
disappointed that this amendment was also voted down by the committee,
but I will continue to work with my colleagues to find a way to close
this loophole before the FISA Amendments Act is extended.
I recognize that the collection that has taken place under the FISA
Amendments Act has produced some useful intelligence, so my preference
would be to enact a short-term reauthorization to give Congress time to
get more information about the impact of this law on Americans' privacy
rights and consider possible modifications. However, I believe that
protections against warrantless searches for Americans' communications
should be added to the law immediately.
An obvious question that I have not answered here is whether any
warrantless searches for Americans' communications have already taken
place. I am not suggesting that any warrantless searches have or have
not occurred, because Senate and committee rules regarding classified
information generally prohibit me from discussing what intelligence
agencies are actually doing or not doing. However, I believe that we
have an obligation as elected legislators to discuss what these
agencies should or should not be doing, and it is my hope that a
majority of my Senate colleagues will agree with that searching for
Americans' phone calls and e-mails without a warrant is something that
these agencies should not do.
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