[Congressional Record Volume 161, Number 172 (Monday, November 30, 2015)]
[Senate]
[Pages S8186-S8187]
BULK TELEPHONE METADATA COLLECTION PROGRAM
Mr. NELSON. Madam President, I came to the floor for a different
reason. I want to speak about the National Security Agency and the bulk
telephone metadata collection program that basically the new law took
over, that there was reform of. Now, let me explain the old law and the
new law that just took effect yesterday.
The old law had been in effect for--I don't know the exact number of
years but something in excess of 5 and less than 8. The old law said
that by going to the approved court that handles classified
information--called the Foreign Intelligence Surveillance Act Court,
known by its acronym FISA--that the government could ask for these
records to come into the possession of the government by showing good
cause as to why those records would be held. So it was pursuant to a
court order.
What were the records to be held? These are business records of the
telephone company. This is not the content of the telephone call; this
is the business record that says that on such and such a day, at such a
time, that telephone number such and such called telephone such and
such. That is called metadata. That is it; there is no content.
For almost a decade, ever since we had the 9/11 attacks and we passed
the PATRIOT Act to try to make it much more efficient for our National
Security Agencies to protect us--those records, if the telephone
company complied with the order, would be in the data-base. But it is
not the content. It is only the business records stating what I just
said: Number such and such called such and such.
Why was that important? Because when we suddenly got an indication
that we had a terrorist that was going to strike either here or abroad
and if that terrorist had a link to a number, we could see what calls
that potential terrorist had made to what number and what numbers that
number then called, and we could go down several different calls. It
was through this that we were able to track down and prevent a number
of terrorist acts, including in this country.
Earlier this year, along came the reform. The choice this Senator--
who
[[Page S8187]]
supports the old law--was given was that either the old law is going to
expire and there is not going to be any law that governs the collection
of these business records--nothing--or go with the reform. The so-
called reform was that you had to go to the FISA Court to get an order
as to a specific number and a specific reason why that number was
something that you wanted. That sounds harmless enough, except when you
are dealing in some cases with seconds, minutes, a few hours; you might
be looking for this person about whom we suddenly got a tip--maybe from
a human source--that they are about to try to do us damage. So how long
is it going to take to go into court? Is it going to take months? Is it
going to take weeks? Days? All the time, the potential terrorist is
well ahead of us. I know our intelligence agencies are trying to be
prepared so they can do it in the shortest possible time, but a judge
has to be there to hear the facts and the probable cause in order to
then render an order to allow the intelligence agencies--domestically,
it would be the FBI--to go get those business records.
If they get the business record and see that it goes one hop to
another number, but maybe that goes another hop to another number and
that goes another hop to several other numbers, under the so-called
reform of the USA FREEDOM Act, there is a limitation on the number of
hops. This Senator feels we shouldn't limit those hops if we are trying
to find out who the bad guy is and what he is about to do.
Once we had that determined, then we go to the court again. If it is
an American citizen or a person who is legally in the United States,
they have to obtain another court order in order to be able to get the
content--either listening to those calls or in the case of email
records, the content of the email.
We always said there ought to be this continuous tension between our
right to privacy, protecting our country, and ourselves. We want that
tension to be there because our right to privacy is what makes us
different in this country. Therefore, that is why we have the
protections of having to go into court in order to get an order to get
the content of the communications.
All you have to do is look to Paris and you can see that these guys
are out to really do some mayhem. If in any way we are slowed down,
then I think it is a considerable hindrance to us. I bring this to the
attention of the Senate simply because the new act superseded the old
act this past weekend. Naturally, when these records were spread about
publicly 2 years ago by Edward Snowden, intentionally, recklessly, and
I might say illegally, there was a fear. It made it seem like Big
Brother was gathering up all of our information. That is why in the
initial PATRIOT Act we were so careful to keep this right of privacy
protected by court order for the business records and then of course
for content by a court order.
I believe that program was lawful, I believe it was court-approved,
and I believe it has helped protect us from terrorist attacks in the
past. I think the confusion in the land is because of what the bulk
record was. It wasn't content. It was business record--the dates,
times, length, and the numbers dialed but not their content.
We have this new law. It is in place. The National Intelligence
Director, Jim Clapper, and the NSA Director, ADM Mike Rogers, assured
us that the new law preserved a critical counterterrorism capability,
but these Paris attacks remind us how brutal ISIS really is and that
the terrorist threat persists.
As we look at who the terrorists in Paris were, there were four of
them whom we knew of, whom we had on our no-fly list, and who were
citizens of European countries. What does that mean? That means they
didn't have to go into the Embassy to get a visa so their background
could be checked. They are one of the visa waiver countries. But there
was another one of their citizens who was one of those terrorists who
was not on our no-fly list. I think the fact that the administration
has already started clamping down, doing the extra checks, we certainly
want to keep the Visa Waiver Program going, but it is a considerable
potential threat if we are not checking and rechecking. I think from
what we learned out of Paris, if the European countries will be more
forthcoming to share their intelligence information with us about the
potential terrorists, that will build our no-fly list for their
citizens and that will be very helpful.
We ought to permanently extend section 702 of the FISA Amendments
Act, which is going to expire in another 2 years. This crucial tool
provides access to electronic communications of suspected terrorists
and other foreign persons located outside of the United States. As we
redouble our counterterrorism efforts, we must maintain what works and
make the necessary changes as the threat evolves. That means remaining
vigilant and using all the tools in our toolbox--including intelligence
collection, Homeland Security protections, and the fight against ISIS
on the battlefield.
I yield the floor.
The PRESIDING OFFICER. The Senator from Arkansas.
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