[Congressional Record Volume 161, Number 72 (Tuesday, May 12, 2015)]
[Senate]
[Pages S2772-S2779]
USA FREEDOM ACT
Mr. LEE. Mr. President, I am here to speak in support of the USA
FREEDOM Act, a bill that would restrain the power of government to
collect data on phone calls made by average, everyday, ordinary, law-
abiding American citizens--300 million-plus Americans--without any
suspicion that any one of them is engaged in any kind of criminal
activity, any kind of activity involving the collection of foreign
intelligence.
I appreciate the support I have received for this bill, and I
appreciate the opportunity to work with my distinguished colleague, the
senior Senator from Vermont. Senator Leahy and I feel passionate about
this issue. Although Senator Leahy and I come from different ends of
what some would perceive as the political spectrum and although we
don't agree on every issue, there are many issues on which we do agree.
There are many issues, such as this one, on which we can say that these
issues are neither Republican nor Democratic, they are neither liberal
nor conservative, they are simply American issues, constitutional
issues. They are issues that relate to the proper order of government.
They are issues that relate to the rule of law itself.
The Constitution of the United States protects the American people
against unreasonable searches. It does so against a long historical
backdrop of government abuse. Over time, our Founding Fathers came to
an understanding that the immense power of government needs to be
constrained because those in power will tend to accumulate more power
and, in time, they will tend to abuse that power unless that power is
carefully constrained.
America's Founding Fathers were informed in many respects by what
they learned from our previous national government, our London-based
national government. They were informed, in part, by the story of John
Wilkes.
John Wilkes--not to be confused with John Wilkes Booth, the assassin
of Abraham Lincoln--John Wilkes was a member of the English Parliament.
He was a member of Parliament who in 1763 found himself at the
receiving end of King George III's justice.
In 1763, John Wilkes had published a document known as the North
Briton No. 45. The North Briton was a weekly circular, a type of news
magazine in England--one that, unlike most of the other weeklies in
England at the time, was not dedicated to fawning praise of King George
III and his ministers. No. This weekly would from time to time
criticize the actions of King George III and his ministers.
At the time John Wilkes published the North Briton No. 45, he became
the enemy of the King because he had criticized certain remarks
delivered by the King in his address to Parliament. While not openly
directly critical of the King himself, he criticized the King's
minister who had prepared the remarks.
For King George III, this was simply too much; this simply could not
stand. So, before long, on Easter Sunday 1763, John Wilkes found
himself arrested, and he found himself subject to an invasive search--a
search performed pursuant to a general warrant and one that didn't
specify the names of the individuals to be searched, the particular
places to be searched, or the particular items subject to that invasive
search. It said, basically, in essence: Go and find the people
responsible for this horrendous publication, the North Briton No. 45,
and go after them. Search through their papers and get everything you
want, everything you need.
John Wilkes decided that his rights as an Englishman prevented this
type of action--or should have, under the law, prevented this type of
action--so he chose to fight this action in court. It took time. John
Wilkes spent some time in jail, but he eventually won his freedom. He
was subsequently reelected to multiple terms in Parliament. Because he
fought this battle against the administration of King George III, he
became something of a folk hero across England.
In fact, the number 45, with its association with the North Briton
No. 45--the publication that had gotten him in trouble in the first
place--the number 45 became synonymous not only with John Wilkes but
also with the cause of freedom itself. The number 45 was a symbol of
liberty not only in England but also in America. People would celebrate
by ordering 45 drinks for their 45 closest friends. People would
recognize this symbol by writing the number 45 on the walls of taverns
and saloons. The number 45 came to represent the triumph of the common
citizen against the all-powerful force of an overbearing national
government.
With the example of John Wilkes in mind, the Founding Fathers were
rightly wary of allowing government access to private activities and
the communications of citizens. They feared not only that the
government could seize their property but that it could gain access to
details about their private lives. It was exactly for this reason that
when James Madison began writing what would become the Fourth
[[Page S2773]]
Amendment in 1789, he used language to make sure that general warrants
would not be the norm and, in fact, would not be acceptable in our new
Republic.
Ultimately, Congress proposed and the States ratified the Fourth
Amendment to the U.S. Constitution, which provides in pertinent part
that any search warrants would have to be warrants ``particularly
describing the place to be searched and the persons or things to be
seized.''
General warrants are not the norm in America. General warrants are
not acceptable in America. They are not compatible with our
constitutional system. Yet, today, we see a disturbing trend, one that
bears some eerie similarities to general warrants in the sense that we
have the NSA collecting information--data--on every phone call that is
made in America. If a person owns a telephone, if a person uses a
telephone, the NSA has records going back 5 years of every number a
person has called and every number from which a person has received a
call. It knows when the call was placed. It knows how long the call
lasted.
While any one of these data points might themselves not inform the
government too much about a person, researchers using similar data have
proven that the government could, if it wanted to, use that same data
set, that same database to discern an awful lot of private information
about a person. The government could discern private information,
including a person's religious affiliation; political affiliation;
level of activity politically, religiously, and otherwise; the
condition of a person's health; a person's hobbies and interests. These
metadata points, while themselves perhaps not revealing much in the
aggregate, when put into a large database, can reveal a lot about the
American people.
This database is collected for the purpose of allowing the NSA to
check against possible abuses by those who would do us harm, by agents,
foreign intelligence agents, spies. But the problem here is that the
NSA isn't collecting data solely on numbers that are involved in
foreign intelligence activity, nor is it collecting data solely on
phone numbers contacted by those numbers suspected to be involved in
some type of foreign intelligence activity. They are just collecting
all of the data from all of the phone providers. They are putting it in
one database and then allowing that database to be searched.
This issue was recently challenged in court. It was challenged and
was recently the subject of a ruling issued by the U.S. Court of
Appeals for the Second Circuit based in New York. Just a few days ago,
this last Thursday, the Second Circuit concluded that Congress, in
enacting the PATRIOT Act, in enacting section 215 of the PATRIOT Act--
the provision in the PATRIOT Act that claims to justify this bulk data
collection program--the Second Circuit concluded that section 215 of
the PATRIOT Act does not authorize bulk collection. It does not
authorize the NSA to simply issue orders to telephone service providers
saying: Send us all of your data. The language in the PATRIOT Act
permitted the government to access the records that were ``relevant to
an authorized investigation.'' That is the language from section 215
that is at issue.
The government argued in that case that the term ``relevant'' in the
context of the NSA's work meant and necessarily included every record
regarding every telephone number used by every American. By
interpreting it this way, they tried to basically strip all meaning
from the word ``relevant.'' If Congress had meant every record,
Congress could have said every record. It did not. That is not to say
it would have been appropriate for Congress to do so, and had Congress
legislated in such broad terms, I suspect there would have been
significant concern raised, if not in court then at least within this
Chamber and within the House of Representatives. But, importantly,
Congress did not adopt that statutory language. Congress instead
authorized NSA to collect records that are ``relevant to an authorized
investigation.''
The Second Circuit agreed that this is a problem, holding last week
that the bulk collection program exceeded the language of the statute--
specifically, the word ``relevant.'' While ``relevant'' is a broad
standard, it is intended to be a limiting term whose bounds were read
out of the statute by a government willing to overreach its bounds.
The proper American response to government overreach involves setting
clear limits--limits that will allow the people to hold the government
accountable. We must not permit this type of collection to continue.
While it is true that a single call record reveals relatively little
information about a person, again, the important thing to remember is
that when we aggregate all of this data together, the government can
tell a lot about a person. I have every confidence that and I am
willing to assume for purposes of this discussion that the hard-
working, brave men and women who work at the NSA have our best
interests at heart. I am willing to assume for purposes of this
discussion that they are not abusing this database as it stands right
now.
Some would disagree with me in that assumption, but let's proceed
under that assumption, that they are law-abiding individuals who are
not abusing their access to this database. Who is to say the NSA will
always be inhabited only by such people? Who is to say what the state
of affairs might be 1 year from now or 2 years or 5 years or 10 or 15
years? We know that in time people tend to abuse these types of
government programs.
We know from the Church report back in the 1970s that every
administration from FDR through Nixon used our Nation's intelligence-
gathering activities to engage in espionage. It is not a question of if
such tools will be abused; it is a question of when they will be
abused. It is our job as Senators to help protect the American people
against excessive risk of this type of abuse. That is why Senator Leahy
and I have introduced the USA FREEDOM Act. It directly addresses the
bulk data collection issue while preserving essential intelligence
community capabilities.
Rather than relying on the government's interpretation of the word
``relevant,'' our bill requires that the NSA include a specific
selection term--a term meant to identify a specific target--and that
the NSA then use the term to limit to the greatest extent reasonably
practicable the scope of its request.
We give the government the tools to make targeted requests in a
manner that parallels the current practice at the NSA--in many
respects, a practice that is currently limited only by Presidential
preferences.
This bill would enable the court to invite precleared privacy experts
to help decide how to address novel questions of law, if the court
wanted input.
The bill also would increase our security in several ways, including
by providing emergency authority when a target of surveillance enters
the United States to cause serious bodily harm or death and instituting
the changes necessary to come in line with the Bush era nuclear
treaties.
This bill was negotiated in consultation with the House Judiciary
Committee, the House Intelligence Committee, and the intelligence
community at large. It is supported by the chairman and ranking members
of the House Judiciary Committee, the House Intelligence Committee, and
the Director of National Intelligence. It enjoys broad support from
industry and from privacy groups.
This is a compromise--an important compromise that will enable us to
protect Americans' privacy while giving the government the tools it
needs to keep us safe. This is a compromise that is expected to pass
the House overwhelmingly, and it is a bill I think we should take up
and pass as soon as they have voted.
So I would ask my friend, my colleague, the distinguished senior
Senator from Vermont, about his insights. My friend from Vermont has
served his country well, having served a significant amount of time in
the U.S. Senate. Prior to that time, he served as a prosecutor--a
prosecutor who had to follow and was subject to the Fourth Amendment.
I would ask Senator Leahy, in his experience as a prosecutor and as a
Senator, what he sees as the major benefits to this legislation and the
major pitfalls to the NSA's current practice of bulk data collection.
The PRESIDING OFFICER (Mr. Flake). The Senator from Vermont.
[[Page S2774]]
Mr. LEAHY. Mr. President, the senior Senator from Utah has laid out
very well the reasons for the changes proposed in the House and
proposed by his and my bill. He also said something we should all think
about. A couple of minutes ago, he said: Assuming everybody is
following the rules today, are they going to follow the rules tomorrow
or next year or the year after?
When he mentioned that, he also mentioned my years as a prosecutor.
Let me tell a short story. I became one of the officers of the National
District Attorneys Association and eventually vice president. A number
of us had occasion to meet the then-Director of the FBI, J. Edgar
Hoover. I thought back to some of the frightening things he said about
investigating people because of their political beliefs. You could tell
Communists because they were all ``hippies driving Volkswagens'' was
one of the things he said; secondly, that the New York Times was
getting too leftist in some of its editorials and was coming very close
to being a Communist paper, and he was making plans to investigate it
as such. Think about that for a moment. The New York Times had
criticized him editorially, and he was thinking he should investigate
it as a Communist paper.
Not long thereafter, he died. We found out more and more about the
secret files he had on everybody, from Presidents to Members of
Congress. What if a J. Edgar Hoover had the kinds of tools that are
available today? That would be my response to the Senator from Utah,
and that is why I totally agree with him that we have to think about
not just today but what might happen in the future.
For years, Section 215 of the USA PATRIOT Act has been used by the
NSA to justify the bulk collection of innocent Americans' phone
records. Americans were appropriately outraged when they learned about
this massive intrusion into their privacy.
Look at what happened last week. The highly respected Federal Second
Circuit Court of Appeals confirmed what we have known for some time:
The NSA's bulk collection of Americans' phone records is unlawful, it
is not essential, and it must end. That basically says it all. It is
unlawful, it is not essential, and it should end.
Under the government's interpretation of Section 215, the NSA or FBI
can obtain any tangible thing so long as it is ``relevant'' to an
authorized investigation. Think for a moment back to J. Edgar Hoover--
and I do not by any means equate the current Director of the FBI or his
predecessors with what happened back then, but if you have somebody
with that mindset.
In the name of fighting terrorism, the government convinced a secret
court that it needed to collect billions of phone records of innocent
Americans--not because those phone records were relevant to any
specific counterterrorism investigation but, rather, because the NSA
wanted to sift through them in the future. This is an extraordinarily
broad reading of the statute--one that I can say, as someone who was
here at the time, that Congress never intended--and the Second Circuit
rightfully held that such an expansive concept of ``relevance'' is
``unprecedented and unwarranted.'' Such an interpretation of
``relevance'' has no logical limits.
This debate is not just about phone records. If we accept that the
government can collect all of our phone records because it may want to
sift through them someday to look for some possible connection to
terrorists, where will it end?
We know that for years the NSA collected metadata about billions of
emails sent by innocent Americans using the same justification. Should
we allow the government to sweep up all of our credit card records, all
of our banking or medical records, our firearms or ammunition
purchases? Or how about anything we have ever posted on Facebook or
anything we have ever searched for on Google or any other search
engine? Who wants to tell their constituents that they support putting
all this information into government databases?
I say enough is enough. I do not accept that the government will be
careful in safeguarding this secret data--so careful that they allowed
a private contractor named Edward Snowden to walk away with all this
material. What is to stop anybody else from doing exactly the same
thing?
During one of the six Judiciary Committee hearings that I convened on
these issues last Congress, I asked the then-Deputy Attorney General
whether there was any limit to this interpretation of Section 215. I
did not get a satisfactory answer--that is, until the Second Circuit
ruled last week and correctly laid out the implication of this theory.
They said that if the government's interpretation of Section 215 is
correct, the government could use Section 215 to collect and store in
bulk ``any other existing metadata available anywhere in the private
sector, including metadata associated with financial records, medical
records, and electronic communications (including e-mail and social
media information) relating to all Americans.'' I don't think you are
going to find many Americans anywhere in the political spectrum who
want to give this government or any other government that kind of power
because nothing under the government's interpretation would stop it
from collecting and storing in bulk any of this information.
The potential significance of this interpretation is staggering. It
is no wonder that groups as disparate as the ACLU and the National
Rifle Association have joined together to file a lawsuit in the Second
Circuit to stop this bulk collection program.
Congress finally has the opportunity to make real reforms not only to
Section 215 but to other parts of FISA that can be used to conduct bulk
collection. Tomorrow, the House will consider the bipartisan USA
FREEDOM Act of 2015. Senator Lee and I have introduced an identical
bill in the Senate. If enacted, our bill will be the most significant
reform to government surveillance authorities since the USA PATRIOT Act
was passed nearly 14 years ago. Our bill will end the NSA's bulk
collection program under Section 215. It also guarantees unprecedented
transparency about government surveillance programs, allows the FISA
Court to appoint an amicus to assist it in significant cases, and
strengthens judicial review of the gag orders imposed on recipients of
national security letters.
The USA FREEDOM Act is actually a very commonsense bill. That is why
Senator Lee and I were able to join together on it. He is right--we
come from different political philosophies, different parts of the
country, and obviously we don't agree on all things, but we agreed on
this because it makes common sense and it is something that should
bring together Republicans and Democrats. It was crafted with
significant input from privacy and civil liberties groups, the
intelligence community, and the technology industry. It has support
from Members of Congress and groups from across the political spectrum.
Mr. President, I ask unanimous consent to have printed in the Record
editorials from the Washington Times, the Washington Post, USA TODAY,
and the Los Angeles Times in support of the USA FREEDOM Act.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From the Washington Times, May 7, 2015]
Big Brother Takes a Hit
The courts give an assist to repealing intrusions into the privacy of
everyone
Sen. Mitch McConnell, the Republican majority leader, has
made it clear to his colleagues that he wants the USA Patriot
Act, including the controversial parts of the legislation
scheduled to expire at the end of June, fully extended. He's
seems ready to do whatever he can to get his way.
The USA Patriot Act was enacted in the days following Sept.
11, when the nation trembled on the verge of panic, with
little debate and little opposition in Congress. The Patriot
Act has been recognized since on both left and right as
unfortunate legislation that granted too much power to the
government to snoop into the lives, calls and emails of
everyone in the name of national security.
Mr. McConnell thought he could force the Senate to either
let the law lapse, to panic everyone again, or get an
extension without modification until the year 2020. Even as
Mr. McConnell praised the National Security Agency's reliance
on the act to justify the collection of telephonic
``metadata'' from millions of Americans, the 2nd U.S. Circuit
Court of Appeals was writing the decision, released Thursday,
declaring the government program, first revealed by Edward
Snowden, illegal because the language of the act cannot be
read to justify such sweeping government action.
The lawsuit was brought by the American Civil Liberties
Union and joined by groups,
[[Page S2775]]
including the National Rifle Association, and welcomed by
civil libertarians across the land. To continue the program,
the Obama administration would presumably have to persuade
Congress to adopt language specifically authorizing the NSA
to collect and hold such data. That attempt might be
forthcoming.
The court's decision gives a boost to the advocates for the
USA Freedom Act, which would modify the Patriot Act. The
Freedom Act is expected to pass in the House and Mr.
McConnell's strategy to kill it in the Senate may not work
now, given the appeals court's decision.
Sen. Patrick Leahy, the ranking Democrat on the Senate
Judiciary Committee, read the 97-page opinion and said,
``Congress should take up and pass the bipartisan USA Freedom
Act, which would ban bulk collection under Section 215 and
enact other meaningful surveillance reforms.''
The opinion of the liberal senator from Vermont is shared
by the conservative Rep. James Sensenbrenner of Wisconsin, an
author of the Patriot Act who has since regretted its excess.
He joined the ACLU lawsuit as ``a friend of the court,'' and
said Thursday that ``it's time for Congress to pass the USA
Freedom Act in order to protect both civil liberties and
national security with legally authorized surveillance.''
When the chips are down, blind partisanship, with genuine
cooperation, can still be put aside.
____
[From the Washington Post, May 10, 2015]
New Rules for the National Security Agency
For months, Congress has debated the National Security
Agency's telephone metadata collection program, without
legislative result. Now two factors have combined to make
that frustrating situation even less sustainable. The
legislative authority that first the George W. Bush
administration and then the Obama administration cited for
the program, Section 215 of the Patriot Act, is expiring on
June 1. And, on Thursday, the U.S. Court of Appeals for the
2nd Circuit ruled that their interpretation of Section 215
was wrong anyway.
Congress needs to respond, and the sooner the better. To be
sure, the court's ruling has no immediate practical impact,
since the three-judge panel considered it superfluous to stop
the program less than a month before Section 215 expires. The
court's reasoning, though, could, and should, influence the
debate. Judge Gerard E. Lynch's opinion noted that the NSA's
mass storage of data, basically just in case it should be
needed for a subsequent inquiry, stretched the statute's
permission of information-gathering ``relevant to an
authorized investigation'' beyond ``any accepted
understanding of the term.''
Intelligence and law enforcement must be able to gather and
analyze telephone metadata, but that requirement of national
security can, and must, be balanced by robust protections of
privacy and civil liberties. Under the current system, those
protections consist of the NSA's own internal limitations on
access to the database, subject to supervision by the Foreign
Intelligence Surveillance Court (FISC)--which operates in
secret and considers arguments only from the government. A
democratic society requires more explicit, transparent
protections.
There is, fortunately, a promising reform proposal readily
available: the USA Freedom bill, which enjoys bipartisan
support in both chambers as well as broad endorsement from
President Obama--and the affected private industries as well.
In a nutshell, it would abandon the bulk collection of the
NSA's metadata, and warrantless searches of it, in favor of a
system under which telecommunications firms retained the
information, subject to specific requests from the
government. Those queries, in turn, would have to be approved
by the FISC. Along with the bill's provisions mandating
greater disclosure about the FISC's proceedings, the
legislation would go a long way toward enhancing public
confidence in the NSA's operations, at only modest cost, if
any, to public safety.
The measure has passed the House Judiciary Committee by a
vote of 25 to 2. In the Senate, it failed to muster 60 votes
last year when Democrats were in the majority, and its
prospects appear even dimmer now that the Republicans are in
control; their leader, Sen. Mitch McConnell (Ky.) favors
reauthorizing Section 215 as-is.
Mr. McConnell's view--that the statute does, indeed,
authorize bulk metadata collection--was legally tenable,
barely, before the 2nd Circuit's opinion. Now he should
revise it. If the Senate renews Section 215 at all, it should
only be a short-term extension to buy time for intensive
legislating after June 1--with a view toward enacting reform
promptly. If the anti-terrorism effort is to be sustainable,
Congress must give the intelligence agencies, and the public,
a fresh, clear and, above all, sustainable set of
instructions.
____
[From USA Today, May 10, 2015]
Patriot Act Calls for Compromise in Congress
proposal on nsa and phone records would go a long way toward
rebalancing security and liberty
In the years since the USA Patriot Act was approved in the
frantic days following 9/11, it has become steadily more
apparent that the law and the way it was applied were an
overreaction to those horrific events.
The most flagrant abuse is the government's collection of
staggering amounts of phone ``metadata'' on virtually every
American. That program--which collects the number you call,
when you call and how long you talk--was secret until Edward
Snowden's leaks confirmed it in 2013.
Last Thursday, a federal appeals court--the highest to rule
on the issue--found that the program is illegal. You'd think
the unambiguous ruling from a unanimous three-judge panel
would finally force changes to the bulk collection program.
But that's not necessarily going to happen, even though a
compromise has emerged in Congress that would go a long way
toward rebalancing security and liberty.
Under the compromise, the data would remain with the phone
companies instead of the government. Requests to access the
database would have to be far more limited, and each would
require approval from the Foreign Intelligence Surveillance
Court.
The new procedure would eliminate some of the phone
collection program's most intrusive features, while keeping
the security it offers at a time when the terrorist group
Islamic State brings new threats. The measure has support
from Republicans and Democrats, liberals and conservatives,
and a long list of civil liberties and privacy groups.
It would also satisfy the court, which didn't dispute
Congress' right to create such a program, just the executive
branch's right to do so without Congress' assent.
Yet instead of embracing the compromise, Senate Majority
Leader Mitch McConnell, Republican presidential hopeful Sen.
Marco Rubio of Florida, and others are working to sabotage
it. They want the Senate to ensure that the program will
continue just as it is after parts of the Patriot Act expire
at the end of this month.
While the phone program's benefits are dubious, its costs
are clear. Several major tech companies have said that
privacy intrusions have hurt U.S. companies. Meanwhile,
innocent Americans suffer an assault to their privacy each
day the government collects data on their calls. And if this
sort of collection goes on, history demonstrates the
government is likely to abuse it.
As the appeals court ruling warned, if the government's
interpretation were correct in stretching the law to collect
phone data, it could use the same interpretation to ``collect
and store in bulk any other existing metadata available
anywhere,'' including financial records, medical records,
email and social media.
Choosing between privacy and security in these dangerous
times is difficult. But, despite what supporters of bulk
collection insist, lawmakers don't have to choose.
A carefully built compromise allows access to phone
records, but with genuine privacy safeguards. The nation
would be no less secure. And the civil liberties on which the
nation was built would be better protected.
____
[From the Los Angeles Times, May 6, 2015]
The USA Freedom Act: A Smaller Big Brother
Last fall, Congress was on the verge of doing away with the
most troubling invasion of privacy revealed by Edward
Snowden: the National Security Agency's indiscriminate
collection of the telephone records of millions of Americans.
But then opponents cited the emergence of Islamic State as a
reason for preserving the status quo. The Senate failed to
muster the 60 votes needed to proceed with the so-called USA
Freedom Act.
But the legislation has staged a comeback. Last week the
House Judiciary Committee approved a bill of the same name
that would end bulk collection--leaving phone records in the
possession of telecommunications providers. The government
could search telephone records only by convincing a court
that there was ``reasonable, articulable suspicion'' that a
specific search term--such as a telephone number--was
associated with international terrorism. And rules would be
tightened so that investigators couldn't search records from,
say, an entire state, city or ZIP Code.
Americans were understandably alarmed in 2013 when Snowden
revealed that information about the sources, destination and
duration of their phone calls was being vacuumed up by the
NSA and stored by the government, which could then ``query''
the database without court approval for numbers connected to
suspected terrorists. After initially defending the program,
President Obama modified it a bit, but he left it to Congress
to make the fundamental change of ending bulk collection.
We had hoped that Congress would take a fresh look at
whether this program is necessary at all, given a
presidential task force's conclusion that it was ``not
essential to preventing attacks.'' But if Congress is
determined to continue the program, it must establish
safeguards. The bill does this, though there is room for
improvement. For example, unlike last year's Senate bill,
this measure doesn't require the government to destroy
information it obtains about individuals who aren't the
target of an investigation or suspected agents of a foreign
government or terrorist organization.
Approval is likely in the House, but prospects in the
Senate are more doubtful. Senate Majority Leader Mitch
McConnell (R-Ky.) has said that ending bulk collection of
phone records would amount to ``tying our hands behind our
backs.''
That was, and is, a specious objection. Under this
legislation, the government can
[[Page S2776]]
continue to search telephone records when there is a
reasonable suspicion of a connection to terrorism. But it
will no longer be able to warehouse those records, and it
will have to satisfy a court that it isn't on a fishing
expedition. Those are eminently reasonable restrictions--
unless you believe that the war against Islamic State and
similar groups means that Americans must sacrifice their
right to privacy in perpetuity.
Mr. LEAHY. Mr. President, additionally, I ask unanimous consent to
have printed in the Record a letter from the major technology industry
companies and trade associations in support of the USA FREEDOM Act.
There being no objection, the material was ordered to be printed in
the Record, as follows:
May 11, 2015.
Hon. John Boehner,
The Capitol, Washington, DC.
Hon. Nancy Pelosi,
The Capitol, Washington, DC.
Dear Speaker Boehner and Democratic Leader Pelosi: We, the
undersigned technology associations and groups, write to
express our strong support for H.R 2048, the USA Freedom Act,
as reported by the House Judiciary Committee on April 30th by
a vote of 25 to two.
Public trust in the technology sector is critical, and that
trust has declined measurably among both U.S. citizens and
citizens of our foreign allies since the revelations
regarding the U.S. surveillance programs began 2 years ago.
As a result of increasing concern about the level of access
the U.S. government has to user-generated data held by
technology companies, many domestic and foreign users have
turned to foreign technology providers while, simultaneously,
foreign jurisdictions have implemented reactionary policies
that threaten the fabric of the borderless internet.
The USA Freedom Act as introduced in the House and Senate
on April 28th offers an effective balance that both protects
privacy and provides the necessary tools for national
security, and we congratulate those who participated in the
bipartisan, bicameral effort that produced the legislative
text. Critically, the bill ends the indiscriminate collection
of bulk data, avoids data retention mandates, and creates a
strong transparency framework for both government and private
companies to report national security requests.
Meaningful surveillance reform is vital to rebuilding the
essential element of trust not only in the technology sector
but also in the U.S. government. With 21 days remaining until
the sunset of certain national security authorities, we urge
you to swiftly move to consider and pass the USA Freedom Act
without harmful amendments.
Mr. LEAHY. Some would argue that no reforms are needed.
Unfortunately, they do not go into the facts, as the Second Circuit
did; they invoke fearmongering and dubious claims about the utility of
the bulk collection programs to defend the status quo. These are the
same arguments we heard last November when we were not even allowed to
debate an earlier version of the USA FREEDOM Act because of a
filibuster.
Last week, some Senators came to the floor to argue that the NSA's
bulk collection of phone records might have prevented 9/11. Now, this
specter is always raised, that it might have prevented 9/11 and is
vital to national security. We also heard that if we enact the USA
FREEDOM Act, that will somehow return the intelligence community to a
pre-9/11 posture. None of these claims can withstand the light of day.
I will go back to some of the facts--not just hypotheses. Richard
Clarke was working in the Bush administration on September 11, 2001. I
asked him whether the NSA program would have prevented those attacks.
He testified that the government already had the information that could
have prevented the attacks, but failed to properly share that
information among Federal agencies. Likewise, Senator Bob Graham, who
investigated the September 11 attacks as part of the Senate
Intelligence Committee, also debunked the notion that this bulk
collection program would somehow have prevented the 9/11 attacks.
The NSA's bulk collection of phone records simply has not been vital
to thwarting terrorist attacks. When the NSA was embarrassed by the
theft of all of their information and the news about the NSA's phone
metadata program first broke, they defended the program by saying it
had helped thwart 54 terrorist attacks. Well, I convened public
hearings on this and under public scrutiny, that figure of 54 initially
shrunk to: Well, maybe a dozen. We scrutinized that further. They said:
Well, maybe it was two. Everybody realized that the government had to
tell the truth in these open hearings. And then they said: Maybe it was
one. That sole example was not a ``terrorist attack'' that was
thwarted. It was a material support conviction involving $8,000 not a
terrorist plot.
Numerous independent experts also have concluded that the NSA's bulk
collection program is not essential to national security. I mention
these things, because as soon as you come down and say: We are all
going to face another 9/11, we are all going to face ISIS, we are all
going to face these terrible attacks if we do not have this program--
yet we can show that it has not stopped any attacks.
The President's Review Group, which included former national security
officials, stated: The bulk collection of American's phone records was
not essential to preventing attacks, and could readily have been
obtained in a timely manner using conventional Section 215 orders.
So we can go with hysteria and overstatements or we can go with
facts. In my State of Vermont, we like facts. We should not be swayed
by fearmongering. Congress cannot simply reauthorize the expiring
provisions of the USA PATRIOT Act without enacting real reforms.
When the House passes the USA FREEDOM Act tomorrow and sends it to
the Senate, we should take it up immediately, pass that bill. The
American people are counting on us to take action. They did not elect
us to just kick the can down the road or blindly rubber stamp
intelligence activities that now have been found by the court to be
illegal. Congress should pass the USA FREEDOM Act this week.
I thank my good friend from Utah for yielding to me. I totally agree
with his position.
The PRESIDING OFFICER. The Senator from Utah.
Mr. LEE. Mr. President, I ask unanimous consent to extend the
colloquy for a period of an additional 15 minutes to allow a couple of
other Members to participate in the colloquy.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. LEE. I would like to now hear from my friend and colleague, the
junior Senator from Nevada, Mr. Heller, and hear his thoughts on how
people in his State--how people he knows across the country feel about
this program and what we ought to do about it.
The PRESIDING OFFICER. The Senator from Nevada.
Mr. HELLER. Mr. President, today, I rise to join this bipartisan
group calling for support of the USA FREEDOM Act. I want to begin by
thanking my friend and colleague from Utah for his hard work and effort
on behalf of the American people on this, my friend from Vermont for
his actions also, and other Members of this Chamber.
Together, what we are trying to do is bring transparency,
accountability, and, most importantly, freedom to the American people--
freedom from an unnecessary and what has now been declared an illegal
invasion of American's privacy. I am talking specifically about section
215 under the PATRIOT Act. Just last week, a Federal appeals court
ruled that this National Security Agency program that collects
Americans' calls--these records are now illegal.
Our national security and protection of our freedom as Americans are
not mutually exclusive. Allowing the Federal Government to conduct vast
domestic surveillance operations under section 215 provides the
government with too much authority. This court's ruling only reaffirms
that the NSA is out of control.
Under section 215, the FBI can seek a court order directing a
business to turn over certain records when they have reasonable grounds
to believe the information asked for is ``relevant to an authorized
investigation of international terrorism.'' However, the NSA has
wrongly interpreted this to mean that all--all--telephone records are
relevant.
So they are collecting and storing large amounts of data in an
attempt to find a small amount of information that might be relevant.
If we reauthorize these laws without significant reforms, we are
allowing millions of law-abiding U.S. citizens' call records to be held
by the Federal Government. I see this as nothing but an egregious
intrusion of Americans' privacy.
So what does the NSA know? They know someone from my State in Elko,
NV, got a call from the NRA and then
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called their Senator. So what does the NSA know? They know someone from
Las Vegas called the suicide hotline for 20 minutes and then called a
hospital right after. So what does the NSA know? They know you called
your church or received a phone call from political action committees.
So does the previous administration, does this administration or
perhaps the next administration care about your party affiliation? Do
they care about your religious beliefs? Do they care about your health
concerns? How about your activities in nonprofit tax-exempt entities?
Maybe not today, as the Senator from Utah said, but what about 5 years
from now, what about 10 years from now and even 15 years from now?
That is why I have been working with my colleagues since the last
Congress to pass the USA FREEDOM Act, and I am proud to join as an
original cosponsor of this bill in this new Congress. Those reforms are
not just a pipeline dream that will die in the Senate. This is a
substantive bill that carefully balances the privacy rights of
Americans and the needs of the intelligence community as they work to
keep us safe.
That is why the House Judiciary Committee has passed this bill on a
bipartisan basis and the full House of Representatives is expected to
pass it later this week. Let me be clear. We are not here to strip the
intelligence community of the tools needed to fight terrorism. To my
colleagues who feel that the USA FREEDOM Act will do this, I would ask
them to read this letter from our intelligence community.
In my hand, I have a letter signed by the Attorney General and the
Director of National Intelligence that was sent to Senator Leahy last
year. I would like to read a portion of this. ``The intelligence
community believes that your bill preserves essential intelligence
community capabilities; and the Department of Justice and the Office of
the Director of National Intelligence support your bill and believe
that it is a reasonable compromise that enhances privacy and civil
liberties and increases transparency.''
We are not here to harm the operational capabilities of the
intelligence community who safeguard us every day. What we are here to
do is provide the American people the certainty that the Federal
Government is working without violating their constitutional rights.
That is why I have also consistently opposed and voted against the
PATRIOT Act during my time in Congress.
I will do everything I can to end the PATRIOT Act, but if I cannot do
that, I will work to gut the PATRIOT Act of the most egregious sections
that infringe upon American citizens' privacy and their civil
liberties. That is what the reforms of the USA FREEDOM Act begin to
achieve. This legislation, among other things, will rein in the dragnet
collection of data by the National Security Agency. It will stop the
bulk collection of American communication records by ending the
specific authorization under section 215 of the PATRIOT Act.
We are reaching a critical deadline as several Foreign Intelligence
Surveillance Act provisions expire at the end of May. I want to be
clear that I expect reforms to our surveillance programs, and I will
not consent to a straight reauthorization of the illegal activities
that occur under section 215 of the PATRIOT Act.
It is time for our Nation to right this wrong, make significant
changes necessary to restore America's faith in the Federal Government,
and restore the civil liberties that make our Nation worth protecting.
I want to again thank the Senator from Utah and my colleague from the
State of Vermont for their hard work and effort on behalf of all
Americans in protecting their privacies and their civil liberties. I
will turn my time back over to the Senator from Utah.
Mr. LEE. Mr. President, we would like to hear next from my friend and
colleague, the junior Senator from Montana, on this issue.
The PRESIDING OFFICER. The Senator from Montana.
Mr. DAINES. Mr. President, I want to thank the Senator from Utah, my
good friend, for his leadership on the USA FREEDOM Act. I recently
returned from an official trip to the Middle East with leader McConnell
and several of my fellow first-term Senators. We met with leaders in
Israel, Jordan, Iraq, Kuwait, and Afghanistan to discuss the political
and security issues facing Middle Eastern nations.
We also met with a number of American servicemembers who are bravely
securing our country in these crisis-stricken regions and working every
day to keep our Nation safe from the extreme forces that wish to
destroy us. These meetings painted a very clear picture; that terror
imposed by extreme forces such as ISIS and the threats facing our
allies in the Middle East are real and they are growing every single
day.
But the growing presence of ISIS in the Middle East is not just
affecting the long-term security of nations such as Iraq and Syria, it
is no longer a risk isolated geographically to the Middle East.
These extreme Islamic forces are working every day to harm the
American people within our borders and on our soil. It is critical our
law enforcement officials and our intelligence agencies have the tools
they need to find terrorists in the United States and abroad, identify
potential terror attacks, and eradicate these risks. ISIS is not just
working to inflict physical damage upon our country and our people,
this extreme group and other like-minded terrorists are intent on
destroying our very way of life, our Nation's foundation of freedom and
justice for all.
But as we strengthen our intelligence capabilities, we must, with
equal vigor and determination, protect our Constitution, our civil
liberties, the very foundation of this country. If the forces of evil
successfully propel leaders in Washington to erode our core
constitutional values, we will grant these terrorists a satisfying
victory. We must never allow this. We must uphold the Constitution. We
must work to protect the balance between protecting our Nation's
security while also maintaining our civil liberties and our
constitutional rights.
That is why I, similar to so many Montanans, am deeply concerned
about the NSA's bulk metadata collection program and its impact on our
constitutional rights. This program allows the NSA to have uninhibited
access to America's phone records. I firmly believe this is a violation
of America's constitutional rights and it must come to an end.
Montanans have also long been concerned that the NSA has overreached
its legal authority when implementing its bulk data collection program.
The recent ruling from the New York-based Second Circuit U.S. Court
of Appeals confirmed it. The court ruled unanimously that section 215
of the PATRIOT Act does not authorize the NSA's bulk collection of
Americans' phone metadata, but this is not the first time the legality
of NSA's bulk data practices have been questioned.
A 2015 report from the Privacy and Civil Liberties Oversight Board,
which is a nonpartisan, independent privacy board, found that section
215 does not provide authority for the NSA's collection program. The
report raised serious concerns that the NSA's program violated the
rights guaranteed under the First and Fourth Amendments. The report
states:
Under the section 215 bulk records program, the NSA
acquires a massive number of calling records from telephone
companies every day, potentially including the records of
every call made across the Nation. Yet Section 215 does not
authorize the NSA to acquire anything at all.
The report concludes:
The program lacks a viable legal foundation under section
215. It implicates Constitutional concerns of the first and
fourth amendments, raises serious threats to privacy and
civil liberties as a policy matter, and has shown only
limited value. For these reasons the government should end
the program.
I strongly agree. In addition, the independent Commission found that
the bulk collection program contributed only minimal value in
combatting terrorism beyond what the government already achieves
through other alternative means. So claims that this program provides
unique value to our security were not validated, and, in fact, were
refused by the Commission.
As Montana's Senator, I took an oath to protect and defend the
Constitution. It is a responsibility and a promise I take very
seriously. That is why I have joined Senators Lee, Leahy, and others to
introduce the USA FREEDOM Act
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of 2015. This bipartisan legislation will end the NSA's bulk data
collection program, while also implementing greater oversight,
transparency, and accountability in the government's surveillance
activities.
The USA FREEDOM Act strikes the right balance between protecting our
security and protecting our privacy. It still allows necessary access
to information specific to an investigation, with an appropriate court
order, and provides the flexibility to be able to move quickly in
response to emergencies, but it stops the indiscriminate government
collection of data on innocent Americans once and for all.
I have long fought to defend Montanans' civil liberties, protecting
privacy and constitutional rights from Big Government overreach. After
spending 12 years in the technology sector, I know firsthand the power
that data holds and the threats to American civil liberties that come
with mass collection.
As Montana's loan representative in the U.S. House, I cosponsored the
original USA FREEDOM ACT that would have ended the NSA's abuses and
overreach. I also supported efforts led by Congressman Justin Amash to
amend the 2014 Defense appropriations bill and end the NSA's blanket
collection of Americans' telephone records.
We made significant ground last year in raising awareness of this
overreach, but the fight to protect America's civil liberties and
constitutional freedoms is far from over. That is why I am proud to
stand today as a cosponsor of the USA FREEDOM Act of 2015 and a strong
advocate and defender of America's right to privacy. As risks facing
our homeland and our interests overseas remain ever present, it is
critical that our law enforcement has the tools they need to protect
our national security from extremists who would destroy our Nation and
our very way of life.
The USA FREEDOM Act provides these tools, but we must also remain
vigilant to ensure that American civil liberties aren't needlessly
abandoned in the process. We need to protect and defend the homeland.
We need to protect and defend the Constitution.
I stand today with the full confidence that the USA FREEDOM Act
achieves both, and I urge the Senate to pass it.
I yield back.
The PRESIDING OFFICER. The Senator from Utah.
Mr. LEE. Mr. President, I ask unanimous consent to extend the
colloquy by an additional 5 minutes so we can hear from my friend and
colleague, the Senator from Connecticut, Mr. Blumenthal.
The PRESIDING OFFICER. Without objection, it is so ordered.
The Senator from Connecticut.
Mr. BLUMENTHAL. Mr. President, I thank my colleague from Utah, my
friend and very distinguished colleague, as well as our friend from the
State of Vermont for their leadership this morning and throughout the
drafting and formulating of this very well-balanced compromise--a
balance between security, which we must be able to preserve and defend,
and our privacy and other essential constitutional rights, which we
need to protect just as zealously, because the reason for fighting to
preserve our security is so we maintain and preserve our great
constitutional rights.
That balance can be struck. It is feasible, achievable, and this
measure of the USA FREEDOM Act is a strong step in the right direction.
I wish to talk today about one of its great virtues, which is an
American virtue, the virtue of due process having an effective
adversarial process, one that is transparent and provides for effective
appellate view. The lack of an adversarial process, as well as
transparency and effective appellate review, is one of the reasons the
USA FREEDOM Act is absolutely necessary.
We know bulk collection of megadata is unnecessary. The President's
own review group made that fact clear. We also know bulk metadata
collection is, essentially, un-American. This country was founded by
people who, rightly, abhorred the so-called general warrant that
permitted the King's officials to rummage through their homes and
documents. No general warrant in our history has swept up as much
information about innocent Americans as orders allowing bulk
collection.
Last week, the Second Circuit Court of Appeals told us something
more; that we now know bulk collection is unauthorized. It is illegal.
It is unauthorized by statute and has been so for the last 9 years that
the government has collected bulk data of this kind.
The question is, How did it happen? How did we arrive at a point
where the Government of the United States has been collecting data
illegally for 9 years? We know that in May of 2006, the FISA Court--the
Foreign Intelligence Surveillance Court--first was asked whether the
Federal Government could collect the phone records of potentially every
single American, and it said yes.
It failed the most crucial test of any court, which is to uphold our
liberties against any legal onslaught. It got it wrong because the
government's argument hinged on a single word, the word ``relevance.''
The court ruled that relevance means all information. In other words,
the court had to decide whether relevant information means all
information, and it said yes.
That judgment was just plain wrong, and it did not strike the Second
Circuit as a difficult question. It doesn't strike us--now in
retrospect--as a difficult question. The Second Circuit held that the
Federal Government's interpretation is ``unprecedented and
unwarranted.'' Never before, in the history of the Nation, has this
kind of bizarre overreaching been successfully entertained.
Now, the court--the Foreign Intelligence Surveillance Court--didn't
even issue an opinion. There was no way for anyone to know that this
bulk metadata collection had been authorized because the court never
told anyone, never explained itself. One can hope the Court knew what
it was thinking at the time, but we don't know what it was thinking.
Now, I don't mean any disrespect to the FISA Court, which is composed
of judges who have been confirmed by this body, article 3 judges who
serve because they have been appointed by the Chief Justice of the
United States.
The reason the court got this issue so fundamentally wrong, I think,
is because it heard only one side of the argument. It heard only the
government's side. It heard only the advocates seeking to collect in
this sweeping way that was contrary to statute and, in my view, also
contrary to fundamental rights and principles.
The USA FREEDOM Act corrects that systemic problem. It not only
enables, but it requires the court to hear both sides.
We know from our life's experience that people make better decisions
when they hear both sides of an argument. Judges on the courts know
they want to hear both sides of the argument before they make a
decision. Often they will appoint someone to make the other side of the
argument, if there isn't anyone to do so effectively. They want
effective representation in the courtroom.
That is why I have advocated from the very start and proposed--and
the President affirmed--that there needs to be advocacy for our
constitutional rights before the court. The other side of the
government's argument needs to be represented.
We need a FISA Court we can trust to get it right because this
proposal for an adversarial proceeding in no way contemplates an
abridgement of secrecy or unnecessary delay. Warrants could proceed
without delay. They could proceed without violation of confidentiality
and secrecy, but the systemic problem would be fixed so the FISA Court
would hear from both sides.
This act also is important because it would bring more transparency
to FISA Court decisions, requiring opinions to be released, unless
there is good reason not to do so. It would require some form of
effective appellate review so mistakes could be corrected.
These kinds of changes in the law are, in fact, basic due process.
They are the rule of law throughout the United States in article 3
courts, and these changes will make the FISA Court look like the courts
Americans are accustomed to seeing in their everyday experience. When
they walk into a courtroom in any town in the State of Connecticut or
the State of Utah or the State of Montana, what they are accustomed to
seeing is two sides arguing before a judge, and that is what the FISA
Court would look like--rather than one side making one argument,
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whether it is for bulk collection of metadata or any other intrusion on
civil rights and civil liberties, there would be an advocate on the
other side to make the case that it is overreaching, that it is
unnecessary, that it is unauthorized. In fact, that is what the Second
Circuit said the government was doing by this incredibly overextended
overreach in bulk collection of metadata.
Unless and until this essential reform is enacted, along with other
critical reforms that are contained in the USA FREEDOM Act, I will
oppose reauthorization of section 215, and I urge my colleagues to do
so as well.
I thank my colleagues from Utah and Vermont for their leadership and
all who have joined in this morning's discussion. The colloquy today, I
think, illustrates some important points of why the USA FREEDOM Act is
important at this point in our Nation's history.
I yield the floor.
Mr. LEE. Mr. President, I appreciate the patience of Senator Hatch
and his willingness to wait while we finished this exercise.
I yield the floor.
The PRESIDING OFFICER. The Senator from Utah.
____________________
