[Congressional Record Volume 161, Number 78 (Wednesday, May 20, 2015)]
[Senate]
[Pages S3113-S3175]
PATRIOT Act
Mr. PAUL. Mr. President, there comes a time in the history of nations
when fear and complacency allow power to accumulate and liberty and
privacy to suffer. That time is now. And I will not let the PATRIOT
Act--the most unpatriotic of acts--go unchallenged.
At the very least, we should debate. We should debate whether we are
going to relinquish our rights or whether we are going to have a full
and able debate
[[Page S3114]]
over whether we can live within the Constitution or whether we have to
go around the Constitution.
The bulk collection of all Americans' phone records all of the time
is a direct violation of the Fourth Amendment. The Second Appeals Court
has ruled it is illegal.
The President began this program by Executive order. He should
immediately end it through Executive order. For over a year now, he has
said the program is illegal. Yet, he does nothing. He says: Well,
Congress can get rid of the PATRIOT Act; Congress can get of the bulk
collection. Yet, he has the power to do it at his fingertips. He began
this illegal program. The court has informed him that the program is
illegal. He has every power to stop it. Yet, the President does
nothing.
Justice Brandeis wrote that the right to be left alone is the most
cherished of rights, most prized among civilized men. The Fourth
Amendment incorporates this right to privacy. The Fourth Amendment
incorporates this right to be left alone.
When we think about the bulk collection of records, we might ask,
well, maybe I am willing to give up my freedom for security. Maybe if I
just give up a little freedom, I will be more safe.
Most of the information that comes on whether you are safe comes from
people who have secret information you are not allowed to look at. So
you have to trust the people--you have to trust those in our
intelligence community that they are being honest with you, that when
they tell you how important these programs are and that you must give
up your freedom, you must give up part of the Fourth Amendment--when
they tell you this, you have to trust them.
The problem is, we are having a great deal of difficulty trusting
these people. When James Clapper, the head of the intelligence agency,
the Director of National Intelligence, was asked point blank, are you
collecting the phone records of Americans in bulk, he said no. It turns
out that was dishonest. Yet, President Obama still has him in place.
So when they say how important these programs are and how they are
keeping us safe from terrorists, we are having to trust someone who
lied to a congressional committee. It is a felony to lie to a
congressional committee, and nothing has been done about this.
About a year ago, we began having this debate because a whistleblower
came forward and said: Here is a warrant for all of the phone records
from Verizon.
You say: Well, maybe they have evidence that people at Verizon were
doing something wrong.
There is no evidence. This is that they want everyone's phone
records.
I don't have a problem with going after terrorists and getting their
records, but you should call a judge and you should say the name of the
terrorist, and then you get their records as much as you want.
If I am the judge and they ask me for the Tsarnaev boy's records--the
Boston Bomber--the Russians had investigated him. He had gone back to
Chechnya. Yet, nobody asked for a warrant to look at his stuff. We
didn't even know he went back to Chechnya. And then we had the disaster
at the Boston Marathon.
I would make the argument that we spend so much time making the
haystack bigger and bigger that we can't find the needle because the
haystack is too darned big. We keep making it bigger and bigger, and we
are taking resources away from the human analysts who should be looking
and seeing when Tsarnaev travels outside of our country.
We recently had another terrorist travel from Phoenix to Texas. We
had arrested him previously. My guess is there was sufficient cause--
probable cause--for a real warrant to look at his activities, and we
should. But I don't think we are made any safer by looking at every
American's records.
In fact, when this came up, the government said: Well, we have
captured 52 terrorists because of this. But then when the President's
own privacy commission looked at all 52 of them, there was a debate
about whether one had been aided but not found by these records and
would have been found by other records.
We have to decide as a country whether we value our Bill of Rights,
whether we value our privacy, or whether we are willing to give that up
to feel safer, because I am not even sure you really can argue that we
are safer, but people will argue that they feel safer. But think about
it. Is the standard to be that if you have nothing to hide, you have
nothing to fear but that everything should be exposed to the
government, that all of your records can be collected?
Some will say these are just boring old business records. Why would
you care if they could find out who you called and how long you spoke
on the phone? Well, two Stanford students did a study on this. They got
an app and they put the app on the phone--voluntarily--of 500 people.
These people then made phone calls. All they looked at was how long
they spoke--metadata--and whom they spoke to, the phone number to which
they were connected. What they found was that without any other
information, 85 percent of the time they could tell what their religion
was; more than 70 percent of the time they could tell who their doctor
was; they could tell what medications they took; they could tell what
diseases they had. The government shouldn't have the ability to get
that information unless they have suspicion, unless they have probable
cause that you committed a crime.
When they looked at this, the appeals court was flabbergasted that
the government would make the argument that this was somehow relevant
to an investigation--because that is what the standard is. Under the
Constitution, the standard is probable cause, which means there is some
evidence or suspicion that you have done something illegal. But the
standard now is relevance, which means, is it relevant to an
investigation? But the court said that even that looser standard of
relevance completely destroys any meaning of any words if we are going
to say every American's phone record in the whole country is somehow
relevant to an investigation.
But it gets worse. They don't even have to prove it. The government
says to the court that they think it is relevant, but there is no
challenge and there is no debate. It is just taken at face value--or at
least it was until this court ruling was appealed. So we now have the
second appeals court that said this bulk collection of phone records is
illegal.
There are many different programs going on. This is the only one we
know about where our government is collecting our records, and the only
reason we know about it is not because the government was honest with
you--the government was dishonest. The Director of National
Intelligence tried to basically lie to the American people and say it
didn't exist. So we know about this one, but what other programs are
out there?
There is something called Executive Order 12333. There are some who
believe this is just the tip of the iceberg, the bulk collection; that
there is an enormous amount of data being collected on people through
this other program.
One question is, if there is no Fourth Amendment protection to your
records, are they collecting your credit card bills? I don't know the
truth of that. I would sure like to know. I don't know whether to trust
their answer if I asked them, if they will be honest with us and say
are they collecting our credit card records.
People might say: Well, your credit card records are just boring old
business records. Why would you care?
But think about it. If the government has your Visa bill, they can
tell whether you drink, whether you smoke, what restaurants you go to,
what your reading material is, what magazines or books you read, what
doctors you see, what medicines you buy? Do you buy medicine? Do you
gamble? All of these things can be determined.
Not only can they determine stuff directly from your phone bill and
directly from your Visa bill, they now have the ability to merge all of
this information. Apparently, they have the ability to collect your
contact lists, and sometimes they are collecting this in a way that is
somewhat nefarious.
We are supposed to be spying on foreigners--foreigners who might
attack us. I am all for that. But what happens is there is a lot of
data that goes in and out of the country. In fact, sometimes an e-mail
from New Jersey to Colorado
[[Page S3115]]
might go through a server in Brazil. Once it gets to a server in
Brazil, they can not only look at your metadata--how long and whom you
talked to--the content is now available. It all gets scooped up. It is
all being analyzed. They are doing the social network of who your
friends are. Some have said this could potentially have a chilling
effect on the First Amendment.
There was a time in our country not too long ago, in the lifetime of
most of us, when if you called the NAACP, you might not want your
neighbors to know or if you were a member of the NAACP, you might not
want your neighbors to know or if you were calling the ACLU or a member
of the ACLU, you might not want your neighbors to know. It can have a
chilling effects on your expression of your speech, whom you associate
with, and whether you are fearful to have association with people
because you are fearful that knowledge might be known by the
government.
People say: Well, certainly that would never happen.
During the civil rights era, many of the civil rights leaders were
spied upon illegally by the government through illegal wiretaps.
Many Vietnam war protesters were also spied upon illegally by the
government. The reason we have the Fourth Amendment is to have checks
and balances. Everything that is great about our country is checks and
balances.
Let's say we have a rapist or a murderer in Washington, DC, today.
Let's say it is 3:00 in the morning and the police come to the house.
They think the rapist or murderer is inside. They do not just break the
door down. If there is no commotion, no noise, no imminent danger, they
stand outside and get on their cell phone and call a judge. Almost
always the judge grants a warrant. Then the police go in.
But why do you want that to happen? Sometimes people come up to me
and they say ``I am a policeman'' or ``I work for the FBI.'' Many of my
friends are policemen and work for the FBI, and they say ``Don't you
trust us?'' It is not about the individual. Laws are not about whether
we trust one person or your brother is a policeman and your brother
would never do anything wrong. It is not about your brother. It is not
about your friend. It is about the potential for there to be a rotten
apple, someone who would take that power and abuse that power. We have
laws not for most of us. It is for the exception. It is for something
out of the ordinary. But it is also to prevent systemic bias from
entering into the situation. For example, there was a time in the South
when it might have been that a White person from the government might
have decided they were going into the home of a Black person just
because of racial bias. You get rid of bias by having checks and
balances, by always saying you have to ask somebody else for
permission.
When we were leading up to the war for our independence in about
1761, I believe, James Otis was arguing before the courts. He was
arguing against something called the writs of assistance. A writ of
assistance was a type of warrant, but it was a generalized warrant. No
one's name was on it; It just said: You are welcome to search anybody's
house to make sure they are paying the stamp tax.
Do you wonder why the Colonists hated the stamp tax? It was not just
the tax; it was the fact that the government could break the door down,
come in, and rifle through their papers. Writs of assistance were
something called a general warrant.
This same battle had gone on in common law in England and developed
as one of our precious rights that we actually kept from the English
tradition.
John Adams wrote about James Otis fighting against these general
warrants, and he said it was the spark that led to the American
Revolution. That is how important this is.
The Fourth Amendment was a big deal to our Founders. The right to
privacy, as Justice Brandeis said, the most cherished of rights, is a
big deal. We should not be so fearful that we are willing to relinquish
our rights without a spirited debate.
The debate over the PATRIOT Act, which enshrines all of this and got
this started, goes on about every 3 years or so. It has a sunset
provision. It is set to expire in the next few days. But we are mired
in a debate over trade. There is another debate over the highway bill.
And the word is that we will not get any time to actually debate
whether we are going to abridge the Fourth Amendment, whether we are
going to accept something that one of the highest courts in our land
has said is illegal. Are we going to accept that without any debate?
I, for one, say there needs to be a thorough debate, a thorough and
complete debate about whether we should allow our government to collect
all of our phone records all of the time.
In England, about the time of James Otis, there was another man by
the name of John Wilkes. I learned about this story in reading my
colleague Senator Lee's book recently. John Wilkes was a rabble-rouser.
He was a dissenter. Some called him a libertine. I do not know about
his morals, but I know he was not afraid of the King.
The King was becoming more and more powerful at that time. That is
one of the complaints we had as well. So John Wilkes began his own
newspaper. It was called the North Briton, and he labeled it with
numbers. The one at the time became the North Briton No. 45. It became
so famous throughout England that it was also part of our idiom, part
of our language in the United States. Everybody knew what 45 was if you
mentioned it. But he wrote something about the King. He basically wrote
what would be an op-ed in our day. He made the mistake of sort of
saying that the King's behavior or the Prime Minister's behavior was
equivalent to prostitution. That did not make the King very happy, so
the King wrote out a warrant for the arrest of anybody who had to do
with the writing of this North Briton No. 45. But the warrant did not
have anybody's name on it. It was a generalized warrant.
He said: Arrest anybody.
So they broke down John Wilkes' door. They rifled through and ruined
the contents of his house, arrested him, put him in irons, and took him
to the Tower of London. They did the same to 49 other people. But John
Wilkes was not about to take this lying down, so John Wilkes actually
then decided that he would sue the King.
I tried doing the same thing. I tried suing the President, and it has
not gone so well. But the thing is that everybody ought to think they
have the ability and the equality to sue even their leaders.
So he sued the King, and something remarkable happened. This was in
the early the 1760s. When he sued the King, he actually won. I think
the award was like 1,000 pounds, which would be a significant sum of
money for us in today's terms. It was a big victory. It was part of the
discussion going on simultaneously over here with James Otis. It was a
big deal.
So often my party does such a great job talking about the Second
Amendment and the right to bear arms. I am all for that. But the thing
is, I do not think you can adequately protect the Second Amendment
unless you protect the Fourth Amendment, the right to privacy. Your
house is your castle. The right to not have your castle invaded is so
important.
I will give an example. A lot of people think we will be safer if we
collect gun records. A few years ago, they collected all the gun
records and they had them in Westchester County, near New York City. A
newspaper decided they would publish them. They really did not think
this through. But you can see the danger of what happens when the
government has records and then releases them to everybody.
Imagine a woman who has been abused or beaten by her husband and has
left him. She lives in fear of him finding her. Now the registration
comes out and says where she lives and that she has a gun or, worse
yet, where she lives and that she does not have a gun.
Think about prosecutors and our judges. I know many of them who put
bad people away, and many of them have concealed carry. Many of them
travel to work. The security meets them in the parking lot. They go to
work, but they worry. We have had sherifs and we have had prosecutors
killed in Kentucky because the criminals were angry that they were
locked up.
We do not want all of our records by the government to be put out
there in public for everybody to know where we live and whether we have
a gun.
[[Page S3116]]
You can see the issue of privacy is not a small issue. It is a big
issue. It was incredibly important to our Founding Fathers.
Some have said it is too late to even get this back. There have been
articles written in the last few weeks that say that whether or not the
PATRIOT Act expires, the government will just keep on doing what they
are doing. In fact, there is a provision in the PATRIOT Act that says
any investigation already begun before the deadline can go on in
perpetuity.
The other thing is that there are people now writing--John Napier
Tye, who was the Internet watchdog for this program, wrote that he
believes that Executive Order 12333 is really allowing all this bulk
collection under what the President says are article II authorities.
Article II gives the President and the executive branch different
powers, but these are not unlimited powers. Some think they are. Some
say the President has the absolute power when it comes to war. Article
II actually comes after article I. In article I, section 8, the
President was told he does not get to initiate war. The most basic of
powers with regard to war were not actually given to the President;
they were given to Congress.
What is sad about this, what is going on now is that Congress has not
shown sufficient interest in what the executive branch does on a host
of things, whether it be regulation, whether it be the enormous
bureaucracy, but really so much power has shifted and gone from
Congress and wound up in the executive.
It is the same way with intelligence. We have intelligence
committees, but the question is, Are they asking sufficient questions?
There are some. Senator Wyden has been a leader in this. He and I have
worked together. He really has been the leader because he has been on
the Intelligence Committee. He has more information, really, than the
rest of us do, but he at times has been hamstrung because once you know
information, if it is told to you in a classified setting, you are not
allowed to talk about it. Sometimes it actually makes sense, if you
want to speak out, not to actually learn through the official channels
but to read on the Internet because if you learn about it through
official channels, you cannot say anything about it even if the
government is lying about it.
We are talking about an enormous amount of information. We are
talking about all of your phone records all of the time.
Recently, there were some complaints by people in the newspaper. They
said: Well, the government is really only getting one-third of your
records; they are not getting enough of your records. Some want them to
get more of your records.
The objective evidence shows, though, that we really have never
gotten anyone independently; we have not found any terrorist
independently of this. But still some people are so fearful, they are
like: How can we get terrorists? We will be overrun with terrorists,
and ISIS will be in every drugstore and in every house in America if we
do not get rid of the Constitution, if we do not let the Fourth
Amendment lapse, and if we do not just let everybody pass out warrants.
That is what we do under the PATRIOT Act. The PATRIOT Act allows the
police to write their own warrants. This is one of the fundamental
separations we did with the Fourth Amendment. This was probably the
most important thing we did, to separate police power from the
judiciary, to have a check and a balance so you would never get
systemic bias, so you would never get political or religious or racial
bias in your judicial system. We separated these powers.
We now let the police write their own warrants. It is a special form
of police. It is the FBI, but they are domestic police. The FBI is
allowed to write their own warrants. These are called national security
letters. They do not have to be signed by a judge. There is no probable
cause. If they come into your house, there is no ability for you to
complain. In fact, sometimes they are now coming into our houses
without us knowing about it. This is called a sneak-and-peek warrant.
Like everything else, the government says we will be overrun with
terrorists if we do not let the government quietly sneak into our house
when we are gone and put in listening devices, search through our
papers and read all of our stuff while we are gone.
They do not have to have probable cause necessarily for these. It is
a lower standard. But we are letting the FBI write this without a judge
reviewing it.
I have a friend who is an FBI agent. I play golf with him. He is
like: Don't you trust me? I do trust him. I do not trust everybody.
Madison said that if government was comprised of angels, we would not
need restrictions, we would not need laws. Patrick Henry said that the
Constitution is about restraining the power of government. It is not
about the vast majority of good people who work in government. It is
about preventing the bad apple. It is about preventing the one bad
person who might get into government and decide to abuse the rights of
individuals.
Some say: Well, the NSA has never abused anyone's rights. That may or
may not be true. They are giving us the information. We do not get to
independently look at the information. They are telling us. It is the
same group who says they were not doing any bulk collection of data at
all. But even if we presume they are telling us the truth, it is not
really the end of the story because the story should be that we do not
want to allow the abuse of power to happen.
As the debate unfolded the first time for the PATRIOT Act, something
occurred that happens frequently around here. There is not enough time.
Hurry up, hurry up, there is not enough time. It is kind of like the
debate right now.
Unless we insert ourselves at this moment, I am not sure we will have
any debate on the PATRIOT Act. It has been set to expire for 3 years.
We have known it was coming, and the question is, Do we not have enough
time because we just don't care enough? Are we going to relinquish our
rights or constrict our rights to the Bill of Rights, even though we
know it is coming up and that we have to do something else that
occupies all of our time?
Senator Wyden and I have a series of amendments. Our amendments would
try to reform some of this. Our amendments would say that NSLs,
national security letters, cannot just be signed by the police, that
they would have to go to a judge.
People argue: Well, how would we catch terrorists? The same way we
catch other people who are dangerous, such as murderers and rapists,
anybody in our society. In fact, when you look at the criminal process
for criminal warrants, warrants are almost never turned down. But just
that simple check and balance of having the police call a judge is one
of the fundamental aspects of our jurisprudence, and we gave it up so
quickly on the heels of 9/11 because of the fear.
The thing is, when the PATRIOT Act came forward, most people didn't
even read it. There was a committee bill and this and that and there
was a last-minute substitution. It was given hours, and it was simply
passed in a spate of fear.
As we look at what happened at that time, I think we now have the
ability to look backward and say: Is there another way? When we start
with the doctrine that a man's house or a woman's house is their
castle, it was a very old notion, maybe even dating back to the times
of Magna Carta. Our castle and our papers are a little bit different
now, and the Supreme Court has not quite caught up to where we are
technologically. They are getting there, but this really needs to be
debated and discussed at the Supreme Court level because the thing is
we don't keep our papers in our house anymore. In fact, we have gone to
such a paperless society that 90 percent of your paper--or if you are
under 30 years old, 100 percent of your paper--is held somewhere else.
The question we have to ask is: Do you retain a privacy interest in
your records? When the phone company holds your records, do they have
an obligation to keep them private? Do you retain a privacy interest?
If the government wants the records from the phone company, should they
be allowed to write the name Verizon and get all of the records from
Verizon? I, frankly, think that if John Smith has his phone service
with Verizon and he is a terrorist, the warrant should say John
[[Page S3117]]
Smith and go to Verizon, but it is an individualized warrant. I don't
think we should have generalized warrants.
There are some who want to replace the bulk collection of records
with a different system where the government doesn't hold the records,
but the phone companies hold the records. I am also concerned about
this for one big reason: The recent court case has now said the PATRIOT
Act does not justify the collection of records, that it is actually
illegal. I am concerned that since the court is now saying section 215
doesn't allow a bulk collection, that in trying to reform this, what is
called the USA FREEDOM Act, we will actually be granting new power to
section 215 that the court says is not there. The court is saying that
it stands logic on its head to say relevance means nothing, that
everybody's records in the whole country could be relevant.
We have even changed, over time, the investigations and whether there
is a full-blown investigation at the beginning of an investigation. Who
gets to decide or define what an investigation is? The bottom line is
that we look at this, and as we move forward, we have to decide whether
our fear is going to get the better of us.
Once upon a time, we had a standard in our country that was innocent
until proven guilty. We have given up on so much. Now people are
talking about a standard that is: If you have nothing to hide, you have
nothing to fear. Think about it. Is that the standard we are willing to
live under? Think about whether you believe you still have a privacy
interest in the records that are held by the credit card companies,
your bank or the phone company.
In the PATRIOT Act, they did something to make it easier to collect
records and to override your privacy agreement. If you read the nitty-
gritty of any of these agreements that you have when you use a search
engine or when you are on the Internet, you do voluntarily say that
your information will be shared in an anonymous way, but they promise
they will not give your name to somebody.
The phone company has the same sort of privacy agreement, but what
has happened through the PATRIOT Act is that we have given them
liability protection. At first blush, you might say we have too many
damn lawsuits. I am kind of that way. I am a physician. We have way too
many lawsuits. I am for cutting back on lawsuits. But at the same time,
if you give the phone, Internet or credit card company immunity to
ignore your privacy agreement, they will.
Instead of the government storing billions and billions of records in
Utah, the new system is still going to store billions and billions of
records in the phone company, but still the question is: Will we access
them in a general way? It says we are going to look at a specific
person, but if you look at the way ``person'' is defined, a person
could be a corporation. I don't think you should have a warrant that
says Verizon and gets all the records for all of their customers.
The other thing that has been going on that they have not been
completely honest with, and we may have some data on, is that the
government is going inside of the software. They are asking companies
such as Facebook or demanding that companies such as Facebook give them
access through their source code so the government can get in. Now, to
Facebook's credit, they are fighting them, and I think more companies
are now standing up and trying to fight against this. But in a
nefarious way, the government is going into the code of Facebook and
then inserting malware into other people's Facebook and spreading it
throughout the Internet.
The government is also looking at communications between two nodes.
Let's say you communicate with Google and it is encrypted, but then
when Google has a data center that talks to another data center which
is nonencrypted, the government just hooks up to a cable and siphons
off records. There is a danger that you will have no privacy left at
the end of this.
The Fourth Amendment is very specific. The Fourth Amendment says you
have to individualize a warrant and put a name on the warrant. You have
to say specifically what records you want, you have to say where they
are located, and then you have to ask a judge for permission.
The sneak-and-peek warrant I was talking about before is section 213.
It is now permanent law. We don't even get a chance to talk about it.
We could repeal it, and I will have an amendment to repeal it. This is
where the government goes in secretly and says: Well, we need this
lower standard because terrorists will get us if we don't. Well, we
have now had it on the books for a decade and do you know who they are
getting? Drug people--people who are buying, selling or using drugs.
That is a domestic problem, which also leads me to something else about
the PATRIOT Act that really bothers me.
When we first started talking about the standards of the PATRIOT Act
and going from probable cause, which is what the Constitution has, to
articulable suspicion, down to relevance, we said: Well, we are going
to lower standards because we are going after foreigners. They are not
Americans and they are not here. We are going to lower the standard,
and really there could be some debate in favor of that.
When we first did it, we said we could not use that information for a
domestic crime. I will give an example. I asked one of the intelligence
folks at one time to answer a question and was dissatisfied with the
response. Let's say the government comes in through a sneak-and-peek
warrant. They don't tell you that they are in your house. Guess what.
They find out you are not a terrorist, but you have paint in your house
which you bought through your office business expense, and you are
painting your house, which is a tax violation. It is a domestic crime,
but they got into your house through false pretenses. They said you
were a terrorist, but they were wrong. However, they found out you were
not being perfectly honest with your taxes. They have gotten in through
a lower standard.
Ultimately, if we let them collect all of your records and we let a
domestic crime be prosecuted by this, we could have the government
sifting through your credit card records because they say the Fourth
Amendment doesn't protect records, including your phone records--not
the content, just all of this data. After they put it together and mesh
it, they decide, by looking at your digital footprint, that maybe you
are somebody who runs traffic lights.
Now we are taking something that was intended to capture foreigners
and we will capture people domestically and prosecute them for domestic
crimes, the specific thing they promised us they would never do. So
things morph and get bigger and bigger.
We could have a valid debate about whether we have gone too far, but
we should at least have a debate. Shouldn't we get together and say:
Let's have a debate. Let's devote all week to this.
For a while, I have asked to have a full day and have five or six
amendments that Senator Wyden and I could put forward and have a full-
fledged debate over whether the bulk collection of our records is
something we should continue to do.
I think if you look at this and say: Where are the American people on
this, well, there has been poll after poll. Well over half the people--
maybe well over 60 percent of the people--think the government has gone
too far. But if you want an example of why the Senate or Congress
doesn't represent the people very well or why we are maybe a decade
behind, I would bet that 20 percent of the people here would vote to
just stop this--to truly just stop it--at the most; whereas, 60 to 70
percent of the public would stop these things.
You are not well represented. What has happened is that I think the
Congress is maybe a decade behind the people. I think this is an
argument for why we should limit terms. I think it is an argument for
why we should have more turnover in office because we get up here and
stay too long and get separated from the people. The people don't want
the bulk collection of their records, and if we were listening, we
would hear that.
The vote in the House, while I don't think the bill is perfect, and I
think it may well continue bulk collection, was over 300 votes to end
this program and to say we are no longer going to have bulk collection.
Yet it looks like the majority in this body says we still need bulk
collection. In fact, the biggest complaint from the majority of this
body is that we are not collecting
[[Page S3118]]
enough records and that we need to collect more records.
Can we have security and liberty at the same time?
I had breakfast with a high-ranking official from our intelligence
community maybe 6 months ago, and I asked him: How much information do
you get from metadata and how much do you end up getting from a
warrant? He said, without question, you get more from a warrant. People
talk about whether we can go one hop or two hops. That means if you are
suspected of terrorism and you called 100 people--if we look at your
records, that is one hop. If we look at the next 100 records, that is a
second hop. As you go in, this pyramid gets bigger and bigger until you
are talking about tens of thousands of people.
As you get further and further away from the suspect, I see no reason
you couldn't keep getting warrants. If they say that warrants are slow
and laborious and there is not a judge, put more judges on the court.
If they say they need them at 3 in the morning, put the judges on 24-
hour alert and you can call them at 3 in the morning. We call judges
for a warrant in the middle of the night all across America. I see no
reason why you can't have security and the Constitution at the same
time.
The President instituted the Privacy and Civil Rights Board. They
went through a lot of this, and some of the things they came up with, I
think, were truly astounding. The amount of information, I think, is
mindboggling--of what is being sucked up in this. There is something
called section 702 of FISA, and this has allowed them to collect
information on Americans who might have been communicating with a
foreigner. You say: Well, that American is probably suspicious. Well,
it goes out in ripples and it becomes this enormous amount of--cache of
information.
When they looked at some of this recently--the Washington Post looked
at this--they found that 9 of 10 intercepted conversations were not the
intended target. So I think there was one estimate that in the last
year we had 89,000 targets. If you multiply that and say it is only
one-tenth of what we actually take, you are now looking at 900,000
records of people who had nothing to do with terrorism. They didn't
even really talk to the person. They incidentally talked to a person
who talked to the person. It could be the terrorist called Papa John's
and you called Papa John's, so now you are in the same phone tree
network. That can ripple out in waves. That information should not be
collected, it should not be put in a database, and it should not be
stored. Ultimately, we are collecting so much information that it is
all of your information.
One thing that should concern us about simply going from a system
where the government collects all of these records and stores them in
Utah to one where the phone company does it--actually some people in
the NSA are acquiescing and saying it is not so bad. That concerns me
that the NSA is saying ``not so bad.'' It concerns me that we are still
going to have bulk collection.
The debate we really need to have is whether, if someone else is
holding your records, if you still have any kind of privacy interest in
your records. I personally think your phone records are still partially
yours, in a way, or that you have a privacy interest in them. This is
going to become very important because your records ultimately--there
probably will not even be any records in your house, they will be on
your phone, and then your phone records are connected to the company.
Who owns them? Do you have a right to privacy in those records? I think
you can have security and freedom at the same time, but I think if we
are not careful, this is going to get away from us.
When they found out that 9 out of 10 intercepts were actually not the
intended target, just ancillary information they picked up, they also
found that 50 percent contained email addresses that were U.S.
citizens. So let's say you collect a million pieces of information and
you are just gathering this up and you are intending to go after
foreign targets who might be terrorists, but over half of this
information, much of it incidentally gained, is actually U.S. citizens.
So this is sort of an end run--they call it backdoor searches--but it
is sort of an end run that has gone around the Constitution, gone
around the Fourth Amendment, to collect information that we have
actually said should be illegal to be collected that way, but we are
doing it because we have done an end run around.
Also realize you can send an email from Virginia to South Carolina
and it might go over a server in Brazil. If your email goes over a
foreign server, all of a sudden, boom, everything is done. The
Constitution is out the door. They can collect that, even the content.
It is never revealed to you; nothing is ever presented to you. It is
all done within the executive branch, with no advocate on your side.
There are several programs that came out through this that are being
collected. It is not just the bulk collection. There is a program
called PRISM that has been out there for a while and there is another
one called Upstream. In PRISM, it is a surveillance program that
collects Internet communications of foreign nationals from at least
nine major Internet companies.
I think this wouldn't have happened if the Internet companies were
not given liability protection. I think what would have happened is
they would have said we are violating our obligation to our customers
and we are going to fight against this. But the PATRIOT Act even made
it worse. The PATRIOT Act made it a crime to reveal that you had been
served with a warrant. So we have gone way beyond any typical
constitutional mechanisms.
In the Upstream Program, a similar thing happened, but this is when
the data is collected as it moves across U.S. junctions. The problem is
not so much going after foreign communications but going after
incidental and collecting incidental communications that involve
American citizens.
John Napier Tye was a section chief for Internet freedom in the State
Department's Bureau of Democracy. He was going to give a speech--and I
think this is very telling. This is reported in the Washington Post. He
had written out his speech and he sent it for review. In his speech, he
said: If U.S. citizens disagree with congressional and executive
determinations about the proper scope of intelligence activities, they
have the opportunity to change policy through democratic process.
And we think, Who could object to that? What would his censors say?
How could he possibly say we don't have the right through democratic
process to change policies? They had him strike ``through intelligence
processes'' because I guess they apparently think we don't have the
democratic ability to change these things. The sad truth is it may be
true because a lot of this is being done by Executive order.
Executive Order No. 12333 has no congressional oversight. In fact,
the question was asked recently of one of the Senate leaders, Will you
investigate this? Now, there may well be a secret investigation going
on, but there was some indication it was really outside of our purview.
I don't think anything the executive branch does should be outside of
our purview. The whole idea of having coequal branches was to have
checks and balances. One of the biggest problems I find in Washington
is that sometimes the opposition party--if we have a Democratic
President and a Republican Congress, you will get a little bit of
adversity and a little bit of pitting ambition against ambition and
check and balance. But the party that is the same party as the
President just doesn't tend to push back, probably for partisan
reasons. Now, it is not just the other party; it happens when
Republicans are in power also. What happens is the political party that
is the same power as the President tends to sort of be open to letting
things move on, just letting the President accumulate more power. But I
think this should be telling that when he said we could change things
through democratic action, President Obama's White House Counsel told
him that, no, that wasn't true. He was instructed to amend the line and
make a general reference to our laws and policies but to leave out
intelligence policies as if we don't really get a say in what they do
as far as what information they collect on us.
John Napier Tye goes on to warn us. He says: Unlike section 215,
Executive Order No. 12333 authorizes collection of the content of
communications, not just metadata, even for U.S. citizens.
So quite often we are told--we were told for years--don't worry, they
are
[[Page S3119]]
not collecting your data; they are just collecting the data of
foreigners. It turns out that wasn't true.
Now, the big thing they tell us is, Well, we are not collecting the
content, we are just collecting the numbers. But when we read John
Napier Tye, he says the Executive order authorizes collection of the
content of the communications also, not just metadata, and also for
U.S. persons.
So the question is, If we get rid of bulk collection, will the
Executive continue to do it anyway?
The other question is, Why doesn't the Executive stop this? It was
started by Executive action and can be ended by Executive action at any
time. Where is the Executive? How come the press gives him a free pass
just to say Congress needs to fix this? Sure, I messed it up, I broke
it; I am doing something that the second appeals court said is illegal,
and I am going to keep on doing it until Congress does something. Why
don't we see any questions from the press? Why don't we see anybody
from the media saying, Mr. President, it is illegal. You started it.
You were performing a program that is collecting all of the phone
records from all Americans. It has been declared illegal from the
second highest court in the land. Why don't you stop? I have not ever
heard the question asked of him.
With the Executive order, apparently because this, they say, is
article II, and then article II to them means they can do whatever they
want without any oversight by Congress, the conclusion by John Napier
Tye is that there is nothing to prevent the NSA from collecting and
storing all communications. This concerns me.
The President instituted or brought together a group called the
Review Group on Intelligence and Communication Technologies. In it,
they came forward with some recommendations. Recommendation No. 12 was
that all of this data--all of this incidental data that is becoming
part of these databases that is collected under these authorities--the
Executive order--should be immediately purged unless there is a foreign
intelligence component to it. The Review Group further recommended that
a U.S. person's incidentally collected data should never be used in a
criminal proceeding against that person.
So now we are back to what I was talking about earlier. If you are
going to go away from the Constitution, if you are going to say to
catch bad guys we can't really have the Constitution, we are going to
have to have a bar that is a lot easier to cross that allows us to do
kind of what we want, wouldn't you want to exclude American citizens
from being convicted or put in jail for a crime under a lower standard?
It is kind of like this: The question is, If the government can come in
without a valid search warrant, without announcing they are in your
house, collect all of your data, would you want them to have hours and
hours in your house without any probable cause and then start arresting
you for this?
There are rumors we are doing this. There are rumors that
intelligence warrants, which are nonconstitutional, which are a lower
standard, are being used to get regular criminals. What they do is
collect information through data, metadata analysis, all of this, they
get enough to be convinced that you are a drug dealer, and then they
arrest you by getting a traditional warrant, but they are using
information they got illegally to get to you.
Section 213, this whole sneak-and-peak, where they go in without
announcing that they have been in your house, 99.5 percent of the
people arrested are actually people who committed a domestic crime.
They are not terrorists. So we are told you have to have a PATRIOT Act
to get terrorists. Yet what we really find is that they are using it in
a way that is not honest. They are using a lower standard--a standard
less than the Constitution--and they are using that standard then to
arrest people for basic domestic crime.
The President's Review Commission in recommendation No. 12
recommended that this incidentally collected data not be used
criminally against anybody. They gave their recommendations to the
White House. The White House stated that the adoption of these
recommendations they requested would require significant changes and
indicated it had no plans to make any changes. So the President's own
review commission says there is great danger in using a lower, less-
than-constitutional standard to collect great amounts of information
that can be searched. There is great danger to privacy. There is also
great danger to using information collected outside of the
Constitution. There is great danger in then using that for domestic
prosecution, and the President said he has no intention of any changes.
When I think of this President, it is probably what disappoints me
most. There were fleeting times when this President was in the U.S.
Senate that he stood up for the Constitution. In fact, there is a quote
from the President when he was running for office--there are many
quotes--but there was one quote saying that the warrants that are
issued by police--national security letters--should be signed by a
judge. The very amendment that I will try to get a vote on he seemed to
have supported, but now his administration is issuing hundreds of
thousands--it starts out with a few, then 47, then a couple hundred,
and now it is in the thousands. Any time you give power to government,
they love it and they will accumulate more. Any time you give power to
government and expect them to live within the confines of the power,
they will not live within the confines of power unless you watch them
like a hawk. You have to watch them. You have to have oversight.
We are at a point now where we have enormous bulk collection,
enormous collection of American citizens' data; one program we know
almost nothing about. Yet it goes on with no debate. The Executive
order from 1981 has been transformed into a monster with tentacles that
reach into every home in our country. The collection of records that is
going on is beyond your imagination, and we need to know about it.
There needs to be a public debate. It has become even more pressing
that we have this public debate because the problem is that we have the
President and we have the Congress and we have the intelligence
community not being honest with us. So the fact that the Director of
National Intelligence would come to Congress and lie and say they are
not collecting this information, and then when they do admit to it say:
Oh, by the way, it is working really well. We are capturing all kinds
of terrorists--but they hold all the information, and we rely on them
to be honest and to present truthful information to us. This is a big
problem.
Currently, the courts haven't brought their rulings up to date. The
debate has been going on for a long time. In 1928 there was the
Olmstead case. The Olmstead case went against those of us who believe
in privacy. I believe that case still lingers on, even though it has
been reversed.
In the Olmstead case, Ray Olmstead was a bootlegger, and the
government decided to eavesdrop on his conversations, but they didn't
have a warrant. They could have gotten a warrant. Who knows why they
didn't get the warrant, but they didn't get a warrant. But the Court
ended up ruling that phone conversations were not protected by the
Fourth Amendment. This was a sad day in our history when this happened
in 1928.
The dissent in that case was Justice Brandeis. As so often occurs in
our history, sometimes the dissent becomes the majority opinion and
becomes profound because it was there at the time.
Harlan's opinion, the dissent in Plessy v. Ferguson, is what
everybody refers to. Nobody refers to the majority in saying that
separate is equal. They were wrong--the same as in the Olmstead case.
People remember Justice Brandeis. It is probably one of the most famous
quotes in jurisprudence: ``The right to be let alone is the most
cherished of rights.'' It is ``the [right] most valued among civilized
men.''
We have this debate still sometimes, though, because some
conservatives say: There is no right to privacy. I don't see it in the
Constitution. And conservatives who argue that there is no right to
privacy aren't remembering the 9th and 10th Amendments very well,
particularly the 9th Amendment.
The Ninth Amendment says that all the rights aren't listed, but those
that aren't listed are not to be disparaged. Even our Founding Fathers
worried about this. Our Founding Fathers came forward and they at first
thought we would just do the Constitution without the Bill of Rights.
Some of them worried. They said: If we do the Bill of
[[Page S3120]]
Rights, people will think that is all we have. If we list ten different
amendments, they will think that is all of our rights. So they finally
convinced everybody to go along with it by saying: We will put in the
9th and 10th amendment, with the 10th Amendment limiting the powers,
saying only the powers enumerated are given to the Federal Government
and everything else is left to the States and the people, respectively.
But the Ninth Amendment, which is in many ways sort of the stepchild of
our amendments, hasn't been adequately, I think, adhered to or
recognized. It says that those rights not listed are not to be
disparaged.
Sometimes we have this discussion because some people say it has to
be enumerated. I agree completely if we are talking that the powers
given to government should be enumerated. They are few--few and
limited, the powers given to the government. But it is the opposite
with your rights. Your rights are many and infinite. Your rights are
unenumerated, and you do have a right to privacy. So while the word
``privacy'' is not in the Constitution, in the Fourth Amendment,
though, they do talk a lot about your privacy. It is about your home,
that your home is your castle.
The exact words of the Fourth Amendment are:
The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches
and seizures, shall not be violated, and no Warrants shall
issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be
searched, and the persons and things to be seized.
The reason why we should worry about whether a warrant is
individualized is we have had some tragic times in our history. During
World War II we didn't individualize the arrests of Japanese Americans.
We didn't say: That is so-and-so who lives in California, and we think
they are communicating with Japan and telling our secrets. We
indiscriminately rounded up all of the Japanese and incarcerated them.
There have been times in our history when we haven't acted in an
individualized manner. It happened throughout the South in the old Jim
Crow South. We told people that we were going to relegate them to a
certain status based on a general category.
So when we talk about individualizing warrants, we are talking about
trying to prevent bias from occurring. Now, bias can occur for a lot of
different reasons. I tell people that you can be a minority because of
the color of your skin or the shade of your ideology. You can be a
minority because of your religion. You can be a minority because you
are home-schooled. But the thing is, if you are a minority, if you are
a dissenter, if you dissent from the majority, you need to be very,
very aware of your constitutional rights. Be very, very aware of the
Bill of Rights.
The Bill of Rights isn't so much for the prom queen. The Bill of
Rights isn't so much for the high school quarterback. Many people in
life always seem to be treated fairly. The Bill of Rights is for those
who are less fortunate, for those who might be a minority of thought,
deed or race. We have to be concerned about the individualization of
our policies or we run the risk and the danger of people being treated
in categories.
Right now we are treating every American in one category. There is a
general veil of suspicion that is placed on every American now. Every
American is somehow said to be under suspicion, because we are
collecting the records of every American.
We talk about metadata and whether or how much it means or what the
government thinks it can determine from metadata. There are some people
who say: Don't worry. It is just your phone logs. It is no big deal. It
is just boring old business records. We should be a little bit
concerned by the words of one former intelligence officer who said,
that ``we kill people based on metadata.'' He wasn't referring to
Americans. He was talking about terrorists. But we should be concerned
that they are so confident of metadata that they would kill someone.
Instead of our believing that metadata is no big deal and it just
should be public information and anybody can have it, realize that your
government is so certain of metadata that they would kill an individual
over it. That seems to me to make the point that metadata is
incredibly important, if we would make a decision to kill someone based
on their metadata.
The Electronic Frontier Foundation has done a lot of work for privacy
and deserves a lot of credit. Mark Jaycox writes in an issue from last
year that ``it is likely that the NSA conducts much more of its spying
power under the President's claimed `inherent' powers and only governed
by a document originally approved by Executive order.''
So while we are superficially having a debate over the bulk
collection of records that some claim are authorized under the PATRIOT
Act, section 215, there is a whole other section that some privacy
advocates are worried about that is even bigger.
I had a meeting recently with one of the founders of one of the huge
social communication companies, and he told me that he thinks we are
missing some of the debate here, because he says everybody is talking
about bulk collection of your phone records. He is convinced that there
is ever so much more being collected through backdoor channels. These
backdoor channels can occur in two ways. They can occur one way by
going and looking at foreigners' information and then coming through
the backdoor back into our country and looking at Americans'
information. That American's information has tentacles and spreads and
it becomes this enormous grouping of incidental information. In fact,
some have said 9 out of 10 pieces of data pulled in aren't about
terrorists; they are just incidental stuff.
What the President's review commission says is we should delete that
once we find it is not relevant to an investigation. The amazing thing
to me is that even people who support the PATRIOT Act--and I don't; I
think the PATRIOT Act lowers the constitutional standards and risks all
freedom and our liberty. But even for those who think the PATRIOT Act
is fine, they said that the PATRIOT Act never was intended to do this.
So if you want to ask yourself is the government overstepping, even
the authors of the PATRIOT Act are now telling us that the overstepping
is to such a degree that they think the PATRIOT Act doesn't justify it.
In fact, that is really what the court ruled recently. I had hoped
the court would rule that the bulk collection--the grabbing up of all
your records--was unconstitutional, but they actually simply ruled that
the PATRIOT Act does not sanction it. The PATRIOT Act does not give
authority to the government to do this. It is a pretty amazing sort of
set of circumstances--that the government has taken something that was
intended in one way, completely transformed it, and then when they are
rebuked by the court, they are not chastened at all.
I wonder why no one has had the guts or the wherewithal to ask the
President why he doesn't stop this now. The President could today
listen to this speech on the floor of the Senate, and he could change
his mind. He could, this afternoon, with his pen--he says he has his
pen and his cell phone--he can immediately stop the bulk collection of
data. In fact, all of the alternatives he could continue and he could
probably do now. He could also say he is going to collect the data with
a warrant. He has all of that power.
Someone should ask the President: Mr. President, why do you keep
doing something the court has said is illegal? Why do you continue
doing this, and why won't you stop? And how could we possibly think
that it is a responsible answer to say: Oh, I will stop when they make
me. His own privacy commission says that what he is doing is illegal
and should stop.
One of the things that people are worried about is that the
government is forcing its way into the code source of different
Facebook, Google, and different Internet companies. There are a couple
of things that are occurring because of this. If you live in Europe, if
you are Angela Merkel or if you are anybody in Europe, you might not
want American stuff anymore.
There are already rumors in discussion that billions of dollars--
there has been some estimating of over $100 billion--have been lost to
where we have been a dynamic leader in software, in hardware, in the
Internet. People don't want our stuff because they don't trust us
anymore.
[[Page S3121]]
One of the reasons they don't trust us is this. We have a group
called the Tailored Access Operations that targets system
administrators and installs malware while masquerading as Facebook
servers. That is a little scary--that if you go on Facebook, somehow
malware is getting into your computer and then searching and allowing
them to know everything you are doing on your computer. If you have a
warrant, to my mind you can do a host of these things, but do it to
someone you have suspicion of.
I think we have made the haystack so big that no one is ever getting
through the haystack to find the needle. What we really need to do is
isolate the haystack into a group of suspicious people and spend
enormous resources looking at suspicious people--people for whom we
have probable cause. If you think of almost every instance--I mean, go
back to 9/11. You will have people come forward with a ridiculous
assumption that if we had the PATRIOT Act, we wouldn't have had 9/11.
We would have caught those two terrorists in San Diego. And I am like,
you mean the two terrorists that were living with a confidential
informant for a year?
We knew who these people were. These people were talking to each
other. It wasn't a lack of gathering information. All of these
incidentals and all of this grabbing up of bulk records isn't what we
needed. We needed the CIA to call the FBI. We needed further that FBI
call Washington and for somebody to listen to them.
The 20th hijacker, a guy named Moussaoui, was captured a month in
advance. We got him in Minnesota. We got his computer. He was captured
because people said--he was from a foreign country, and he was
attempting to learn to take off planes but not land them. The FBI agent
there ought to be given a Medal of Honor. Instead of giving the Medal
of Honor to the head of the FBI, we should have fired the head of the
FBI and this FBI agent should have been made the head of the FBI. He
wrote 70 letters to his superiors. He caught the 20th hijacker. He
should be a well-known name to every American and a hero. He caught the
20th hijacker. He saved lives. But his superior got 70 letters and did
squat. I have no idea what happened to his superior, but nobody was
fired for 9/11. Instead of firing the people who did not do a good job,
we gave them medals. The guy who did a good job, I don't know what
happened to him.
(Mr. SCOTT assumed the Chair.)
What we did is we decided we would just collect everybody's
information, that we would sort of scrap the Bill of Rights.
I have met a lot of our wounded soldiers. I have met young men who
have lost two, three arms, two, three limbs, sometimes four limbs. I
have met people who are paralyzed. And to a person, when I ask them
``What were you fighting for?'' they tell me ``The Constitution.'' They
tell me ``Our way of life'' or ``Our Bill of Rights.'' Don't you think
they would be disappointed to find out that they went over there and
they risked life and limb and gave up part of their bodies and they
came home, and while they were gone we gutted the Bill of Rights?
Not only did we get it--we can have a difference of opinion on this,
but not only did we gut it, we don't have time to debate it. We just
willy-nilly say: That is fine. We are not even going to have time to
debate it. We have known for 3 years that this debate was coming up.
Yet, we squashed a bunch of bills in the last week, and we have no time
for debate, no time for amendments, no time to discuss whether we are
willing to trade our liberty for security.
Franklin said that those who trade their liberty for security may
wind up with neither.
This is a very important debate that we need to have in the public,
in the open. We worry about--or some of us worry that just in
discussion of bulk records, we may not get to other programs the
government just simply will not tell us about. A lot of them are
written about, though.
In another episode of the Electronic Frontier Foundation's
newsletter, they talk about a program called Muscular. Muscular is a
program that is siphoning off the data between different data centers.
Yahoo and Google sometimes have--at least did have communication
between them that was not encrypted. Your information was encrypted
going to the data center, but then between data centers, it was not
encrypted, and the government is simply siphoning all this off through
Executive order. I do not whether it is foreign. I do not know whether
there is incidental American. I do not know what is being collected. We
have no oversight, no ability to vote on whether we continue this
program or discontinue this program. The companies are sometimes not
notified of the warrants or if they are notified of the warrants are
told they cannot talk about them; they are gagged. This is the kind of
stuff we need to have in the open.
Some of the information people are talking about that the NSA
collects on Americans is contacts from your address book, buddy lists,
calling records, phone records, emails, and then they put it all into a
data--I think the program is called SNAC. They put it all into this
data program, and they develop a network of who you are and who your
friends are through all of the interconnection of all of your contacts
and friends.
If you ask them ``Is any of this protected by the Fourth Amendment,''
the answer you will get is ``The Fourth Amendment does not protect
third-party records.'' So, really, we are going to have this go to the
Supreme Court.
I said earlier that in the Olmstead case in 1928, Justice Brandeis
was in the dissent. The vote was 6 to 3, I believe. The Court ruled
that phone conversations have no protection. So we started out with a
bad history. The phone was just coming around and becoming commonplace.
The Supreme Court said: Your conversations do not have any protection.
This went on for 40-some-odd years until we hit the late 1960s--I
think 1968--and the Katz case. Then they say there is an expectation of
privacy. So that was a big blow for those of us who believe in privacy,
that we finally decided your phone conversations are private and that
you have an expectation of privacy and that it should take a warrant
with your name on it, individualized, with probable cause.
But we go another dozen years, 10, 12 years, and we get another court
case called Maryland v. Smith. Here, though, the Court ruled that your
conversation are protected from the government, that the government has
to have a valid warrant, but they end up saying that your records don't
and that the government is allowed to eavesdrop and pick up and
accumulate records about your phone calls without a warrant. I think
that was a big mistake.
The case in Maryland v. Smith, though, is one sort of petty criminal
and a few records over a few-day period. The question that I would like
to see before the Supreme Court would be, is that equivalent to all
Americans' phone records all the time? There was at least some kind of
investigation going on of this person. They did not do it the right
way. I think they should have gotten a warrant.
But in this case, what the government is arguing is that every one of
you is somehow relevant to an investigation for terrorism. That is
absurd.
Finally, we get to the appellate court last week, and the appellate
court says that. They say that, frankly, it is absurd to say that
everybody in America is relevant to an investigation. Not only is it
absurd, not only is it trifling with your privacy and your right to be
left alone, but it takes our eye off the prize.
Why do you think it is that there are not enough human analysts to
know that Tsarnaev, the Boston Bomber, was plotting to bomb the Boston
Marathon? Why did we not know he got on a plane to go to Chechnya? One
of the things that we were told at least in the newspaper was that he
had an alternate spelling of his name. So we have been 15 years and we
cannot figure out that sometimes these names are spelled a little
differently and we did not know he flew back and was radicalized in
another country.
I am for spending more money and more time on analysts to investigate
and look at the data connected to people of suspicion. But I do not
want to spend a penny on collecting all of the information from all of
the innocent Americans and giving up who we are in the process. We have
to fight against terrorism. We have to protect ourselves. But if we
give up who we are in the process, has it been worth it? Are
[[Page S3122]]
you really willing to give up your liberty for security? What if the
security you are getting is not even real? They said the 52 people who
were caught through the bulk collection program--the President's own
privacy group investigated and said not one person was captured. There
is a possibility of one, but they already had information on him from
some other source.
Under the Executive order, we are still not talking about the PATRIOT
Act, we are talking about something that nobody knows much about at
all. No common Member has been, to my knowledge, informed of what is
going on in this program; none of those not on the Intelligence
Committee.
But they have something with this information called the special
procedures governing communications metadata analysis. This is allowing
the NSA to use your metadata--phone records, et cetera, who you call,
how long you speak--under the PATRIOT Act and section 702 to create
social networks of Americans. So not only are we collecting your data
because the government says--and realize this; many of your elected
officials are saying this: that you have no right to privacy and the
Constitution does not protect your records. They are collecting all of
your records, some of it incidental, but they are creating these
enormous databanks, but then they are connecting metadata to other
metadata to create social networks of who you are.
You should be alarmed. We should be in open rebellion saying: Enough
is enough. We are not going to take it anymore. We should be in
rebellion saying to our government that the Constitution that protects
our freedoms must be obeyed. Where is the outrage?
I tend to think young people get it. Young people--you see them--
their lives revolve around their cell phone. They realize that if I
want to know about their lives, if I collect the data from their
phones--not the content of their phone calls but the data from their
phones--that I can know virtually everything about them. Do we want to
live in a world where the government knows everything about us? Do we
want to live in a world where the government has us under constant
surveillance?
They will say: We are not looking at it; we are just keeping it in
case we want to look at it. The danger is too great to let the
government collect your information.
I think there is a valid question as to whether simply the collecting
of your information is something that goes against the Constitution.
One of the other areas where we are seeing collection of data--I
mean, it would just boggle your mind. We are not just talking about one
program; we are talking about dozens of programs the government has
instituted to look at your stuff.
There is another group called EPIC, the Electronic Privacy
Information Center. They talk about suspicious activity reports. Those
are reports your bank has to file whenever you deal in cash at the
bank. There are certain dollar limits. They think, well, gosh, someone
is probably a bad person if they are putting $9,500 in cash in the
bank. Well, it turns out that a lot of honest, law-abiding people do
that.
Not too long ago, there was a Korean husband and wife. They owned a
grocery store. They dealt with a lot of cash. They were very
successful. Three times a day, they deposited over $9,000, $8 to
$10,000. They tried to stay under $10,000 because there were all kinds
of extra paperwork if you were over $10,000. So what the government
said is, you are structuring your deposits to evade people. You must be
guilty of something.
The government then can accuse people of a crime and take their
stuff. There is something called civil asset forfeiture. It does not
require that you be convicted, does not even require that you be
accused of something.
There was a story not too long ago in Philadelphia--Christos
Sourovelis. The teenager was selling drugs out of the back of the
parents' house. So they caught the kid and they were punishing him, but
they decided they would punish the parents, too. They confiscated the
parents' house and evicted the family. So the teenager makes a mistake
by selling drugs, and what does the government do? They take the
parents' house. So you think that is going to help the kid or help
anything get better in this situation by taking the house? But here is
the rub: The kid did not even have to be convicted of anything. The kid
did not own the house; he was just their kid.
If we allow all kinds of data to be out there to catch people and
then we are not even going to require that you are convicted of a crime
before we take your stuff--you can see the danger of allowing so much
data to be collected. But we are currently convicting and taking
people's stuff or their money simply based on what they are using it
for.
The Washington Post did a series of articles on this. Turns out that
most people having their stuff taken are poor, often African American,
often Hispanic, but for the most part poor. One guy was here in
Washington and had $10,000. He was going to buy equipment, such as a
refrigerator or a commercial oven or something, for his restaurant.
They just stopped him and took his money. It took him years to get it
back. He only got it back because the Institute for Justice defended
him in getting it back. But it turns justice on its head because he was
basically considered to be guilty until he could prove himself
innocent.
Realize, then, that people like this are sometimes being picked up
because of something called suspicious activity reports. Suspicious
activity reports make your bank into a policeman or policewoman. When
you deposit things, they are obligated to report you to the government.
Does it sound something like ``1984''? Does it sound like you have
informants out there everywhere--see something, say something; that
your banker is going to call the government if you put cash into the
bank?
The burden should always be on the government to prove you are guilty
of something. You should never be convicted and you should never be
punished without there first being a trial, without there first being
evidence, without there first being a trial with a lawyer, with a
verdict.
Some of this has gone into the war on drugs. The war on drugs has a
lot of problems. But part of it has been the abuse of our civil
liberties. Also, part of the war on drugs is that there has been a
disparate racial outcome. What do I mean by that? There have been
instances where--if you look at the statistics, three out of four
people in prison are Black or Brown and are there for nonviolent drug
use. But if you look at the surveys and you ask yourselves: Are White
kids using drugs the same as Black kids, it is equal. White kids are 80
percent of the public. How do we get the reverse for 80 percent of the
population in jail is Black and Brown? It is a problem. If we can't
figure it out, you are going to have to continue to realize why people
are unhappy.
If you want to know why there is unhappiness in some of our cities,
you should read The New Yorker. About 3 or 4 months ago they did a
story about Kalief Browder. Kalief Browder was a 16-year-old Black kid
from the Bronx. He lives in a poor situation. His family had no money,
and he had been in trouble before.
But he was arrested, and he was sent to Rikers Island--16 years old,
arrested, sent to Rikers Island. His bail was $3,000. His family
couldn't come up with $3,000. He was kept for 3 years without a trial.
At least some of it was in solitary confinement.
He tried to commit suicide. Can you imagine how he must feel? Can you
imagine how his parents must feel? Can you imagine how his friends
feel, the kids he went to high school with. Do you think they think
justice is occurring in our country?
We have to be careful we don't let slip away who we are in the
process of all of this fight against terrorism, all of this fight
against drugs, because what happens is people take things that are bad.
Terrorism is bad, drugs are bad. But we take this fight about something
that is bad, we forget about the process of law, we forget about the
rule of law, and we forget who we are in the process.
But if you want to know why people are unhappy in some of our big
cities, you want to see that unhappiness in the street, it is because
some people don't think they are getting justice. I, frankly, agree
with them. I think there isn't justice in our country when this occurs.
[[Page S3123]]
Originally, we had the Constitution. Then after 9/11 we got the
PATRIOT Act. The biggest change between the Constitution, which
provided protection for us from people, bad people, for 200 years or
more--the biggest difference is we changed the standard on how we would
arrest people or how we would give out warrants.
I remember having this debate about 3 years ago when we talked about
the PATRIOT Act. I was walking along talking to another Senator, and he
was alarmed that the PATRIOT Act would expire at midnight. What would
we do?
And I was like: Couldn't we, for just a couple of hours, you know,
live under the Constitution?
I mean we did for 200 years, for goodness' sake. We have all kinds of
tools. There is almost no judge in the land that is going to turn down
a warrant. The FISA warrants, the ones they give for security, 99.9
percent of them are approved.
Couldn't we give out warrants? They said it takes too long. Computers
work in the blink of an eye. In the blink of an eye, if John Smith is
thought to be a terrorist and he called 100 people, in the blink of an
eye, I can look at the 100 on the list and I can say: What is the
evidence that some on the list look suspicious or any of them from a
foreign country or any of them on another list from somebody calling
from a foreign country.
There are ways to look at this where we would simply then get a
warrant for the next hop and the next hop and the next hop. There is no
reason we can't catch terrorists the same way we catch other bad people
in society by using the Constitution.
Initially, the government had to show evidence that you were an agent
of a foreign power, but this is no longer true. Now all you have to do
is make a broad assertion that the arrest is related to an ongoing
terrorism investigation.
The problem in the FISA Court is that when they take you to this
court, it is secret. You don't get your own lawyer, and basically the
government says to the FISA Court judge: Oh, yes, it is related to an
investigation--but I don't believe they are forced to show that it is
relating to an investigation. In some ways, I think we have gone too
far because what you end up having is you have people who are saying it
is related, but the question is, Is there any evidence that there is a
relation to it and how could there be a relationship of everybody in
America to an investigation?
We also often have given gag orders, and this is one of the big
complaints of the Internet companies. They get order after order after
order, a national security letter. They get all of these suspicionless
warrants, and then they are told they can't talk about it or they will
go to jail. There are some people who got gag warrants who were
librarians and for a decade or more were not allowed to talk to anybody
to say that they had received this warrant.
The American Civil Liberties Union has written that the PATRIOT Act
``violates the Fourth Amendment,'' which says the government cannot
conduct a search without obtaining a warrant and showing probable cause
to believe that a person has committed or will commit a crime.
The ACLU goes on to say that it ``violates the First Amendment's
guarantee of free speech by prohibiting the recipients of search orders
from telling others [these are the gag orders] about those orders, even
where there is no real need for secrecy.''
These are the gag orders. They also say that it ``violates the First
Amendment by effectively authorizing the FBI to launch investigations
of American citizens in part for exercising their freedom of speech.''
Now, they went back in and they wrote the rules and said: Oh, you are
not supposed to do it if it violates someone's freedom of speech. But
the bottom line is that the opening we have given to the intelligence
community is so wide that there are, for all practical purposes, no
limitations on the gathering of your information.
In the Maryland v. Smith case, we kind of get to the point where we
have said that telephone conversations are protected, but we have said
trace-and-trap and pen register, where they collect your data by phone
calls, is not. The problem is--and this is a problem that needs to be
corrected by the courts--at this point they are essentially
nonexistent. There are no protections in the court for any kind of
warrant that has to be gotten for any kind of metadata.
The FBI need not show probable cause or even reasonable suspicion of
criminal activity. It must only certify to a judge, without having to
prove it, that such a warrant would be relevant to an ongoing
investigation.
Also, typically in the past, when we gave warrants for wiretaps, they
were sorted to entities. You kind of had to name the entities. But now
we are giving the ability to collect data, pen register, trace-and-trap
data on your phone calls nationwide. This is a severe departure from
what we had had in the past because typically warrants were given under
a judge's jurisdiction, so within a region. But now we have a blanket
order that says we can collect any of your phone records, anywhere,
anytime, across the whole country. This goes against the history of the
way we have had juris prudence.
We talk a lot about phone data but your emails are in there too.
Interestingly, your emails, after 6 months, have no protection at all.
So any email you have on your computer, after 6 months, has no
protection at all.
Up to 6 months, there is a little bit of protection, but the
government is allowed to look at--without a probable cause warrant--is
able to look at whom you are communicating with and the header on the
subject line. The government is also able to look at, through metadata,
the Web sites you visit.
You can see how various groups would say that might be an
infringement of their First Amendment because let's say the government
now knows I go to Electronic Frontier Foundation or I go to EPIC or I
go to ACLU. I am concerned with civil liberties. Am I a potential
problem to the government? I am concerned and I am a critic of the
government. Is it a problem the government now knows what Web sites I
go to and that I am concerned with this?
Now, if the government would hear--they would say: No, that is not
what we are doing.
But the other part of the question is maybe not yet, maybe not now,
but you can also squelch and severely restrict First Amendment
practices if just simply the fear of the government looking at it might
change my behavior. There is all the evidence, there have been surveys,
saying that 20, 25 percent of people doing things online are changing
their behavior because they are afraid of the government.
The government argues that the list of Web sites and Web site
addresses is simply transactional data, but I think there is much more
you can garner from this data.
The PATRIOT Act that is due to expire is just three sections.
Interestingly, the complaints that I have are a lot over section 215,
which the government claims is their justification for collecting all
of your phone records. Now, the courts have said otherwise. The appeals
court said last week that the business records do not give them the
authority to collect your records. In fact, the courts have been very
specific that it is illegal.
The President is currently ignoring the court, and the President
continues to collect your phone data, all of your phone data, all of
the time, as much as they can get. They have not changed any of their
behavior, that I know of, since it was declared to be illegal.
Some of the changes--I would repeal the whole thing. I would repeal
the whole PATRIOT Act. But some of the changes that I would favor, if
we were allowed to change it, if we could get a consensus in this body
that would mirror the consensus that I think is in America--once you
get outside the beltway of Washington and you go back into America and
you ask people are they for this, the vast majority of people think the
government shouldn't collect all of their phone records all of the
time.
But there are some changes we could make. I think the first thing we
ought to do is not replace this system but basically say we are not
going to collect data in bulk, that we are not going to collect your
phone records, your credit card information, your emails, and where you
go on the Web. We are not going to collect that in bulk.
I think we could change the PATRIOT Act to say we are only going to
[[Page S3124]]
collect data that has to do with someone who is suspicious, that we
have presented some suspicion to a judge, and that the judge said: This
is probable cause.
The standard is not that hard. It is hard for me to imagine, in fact,
a judge saying no. Judges always say yes. If at 3 in the morning there
is a murder somewhere inside a house in DC, what do you think the odds
are that when the police call for the warrant that the judge will say
no? Odds are most of us want the judge to give permission. But it is
the checks and balances that we want so we don't have police who
operate on bias or bigotry or religious discrimination. We want the
people to be bound by the rule of law.
It is kind of interesting, because you will hear Republicans
sometimes give lip service to the rule of law. But in giving lip
service to the rule of law, what happens is they seem to forget the
whole idea of privacy. They are for it in economic transactions but not
so much with regard to personal liberty.
The New York Times has written and talked about some of the economic
effects of this. In an article by Scott Shane a couple of years ago, he
talks about the idea that foreign citizens, many of whom rely on
American companies for email Internet services, are concerned about
their privacy.
Now you can say you don't care about foreigners, and they don't get
the same standard as we get, so you can understand maybe there is going
to be a lower standard. But realize, if we are going to say the
standard is quite a bit different and that there is no protection for
anybody's data on the Internet, realize that standard is going to scare
people in other countries away from our stuff. It is going to scare
people away from our email companies. It is going to scare people away
from our search engines.
I think if you would talk to any of these companies out there--and
some of these companies are some of the greatest success stories in our
country--if you think of the Internet revolution and you think of how
America has really led, America has been the leader. We have created
hundreds of thousands of jobs, billions of dollars of profit. In our
zealousness to grab up every bit of information and in our zealousness
to ignore, basically, the Constitution, we are grabbing up so much
stuff we are scaring people to death. There has already been billions
of dollars lost to North American companies because of this, because
Europeans, Asians, they don't want our stuff anymore. They don't want
things with our hardware. They don't want to deal with our services
because they are fearful the U.S. Government is looking at all of their
transactions.
The government is pretty clueless over this. Recently, one of the
members of President Obama's administration came out--in fact, several
members--complaining about encryption. They are like: Well, you know,
we are going to maybe have some laws to prevent these companies from
encrypting things. It is like: Don't you get it? Don't you get why
companies--the encryption is a response to government. The encryption
is a response to a government that has run amok basically collecting
our information, collecting all of our information. So if you are an
American Internet company, if you are an American search engine or an
American email company, what do you think you are saying? You are
saying: The only way I am getting Europeans back, the only way I am
getting Asians back is to say I am going to protect them from my
government.
Isn't that a sad state of affairs?
People say: Well, how will you get terrorists if everything is
encrypted?
Edward Snowden was using an encrypted email server, and the company
that was housing him--that was specifically the genre of their
business. They had a business that was encrypted because some people
want to be private for a lot of different reasons, many of them
legitimate--business, legal, personal reasons. But, anyway, when they
came to get Edward Snowden's email, they didn't ask just to get his
email; they said they wanted the encryption keys for the entire
business.
See, this is the problem. You have to realize there are zealots who
don't seem too concerned with your privacy rights. Imagine what they
are going to do if they say to Apple: We don't want just the encryption
for you to let us in one time to see John Smith, who we think is a
terrorist; we want you to let us in all of your products. If they force
a good company like Apple to do that, who in the world would want
anything from Apple anywhere in the world? There is a danger that we
will destroy great American companies by forcing this surveillance into
their products.
(Mr. TOOMEY assumed the Chair.)
Senator Wyden has also made a good point. If the government is going
to mandate backdoor access to the code source and the government is
going to say that Facebook or Google has to let them in a backdoor,
that is a window, that is a breach of the wall, it is a breach of
protection.
Senator Wyden and others have made a good point. He said: If you do
that, you will be actually weakening these companies to attacks of
cyber security because if somebody can get in, somebody else who is
smart can get in as well.
So there is a danger to letting the government in.
There are dozens and dozens of these programs. The NSA has something
called the Dishfire database. It stores years and years of text
messages from around the world. That might be fine except for it ends
up trapping people who are also American citizens as well. It ends up
tracking and trapping purely domestic texts that are retransmitted
outside the country.
They have a program called Tracfin that collects and accumulates
gigabytes of credit card purchases. I don't know--for some reason, I am
more appalled by the credit card purchases than I am the phone because
I think of all the stuff you can buy with your credit card and what it
indicates about you.
With phones--you can find out a lot with people's phone records. When
the Stanford students looked at phone records, they found that 85
percent of the time they could tell your religion. The vast majority of
the time, they could tell your doctors. The vast majority of the time,
they could tell what disease you had. The vast majority of the time,
the government can then also connect you through social networking and
tell an extraordinary amount about you.
With a credit card, it is even more explicit than that. They can tell
if you drink, if you smoke, and how much, what magazines you buy, what
books you read, what medicines you take. All that is on your credit
card. And we are more and more that type of society. We are less and
less a society of cash and more and more a society where everything is
on paper. That should worry us. It should worry us that the government
has access to all of our records all of the time. It should concern us
that the government also says, when you ask them--and this is an
important point--that your records, when held by a third party, are not
protected at all. It is debatable whether that is true. I think it
needs to be looked at again by the court, and I think there are those
who will, in the court, say your third-party records are. The Maryland
decision was 6 to 3.
Justice Marshall felt your third-party records should be protected.
He specifically mentioned that there was a potential stifling effect
for association, there was a potential stifling effect for speech, and
he was quite concerned that the government really should have a warrant
to look at your records.
My hope is that someday the Maryland v. Smith case will be relegated
to the dustbin of history, into the same dustbin in which we put
Olmstead. In Olmstead, they said you couldn't have any protection for
your phone records. It went on for 40 years. I think we still live with
some of that because we have trained and taught the phone companies not
to be great advocates for our privacy, and there doesn't appear to be
seen a great deal of fighting on the part of the phone companies in
advocating for us. Some of the Internet companies have begun to step
up. But I would like to see both phone companies and Internet companies
stand up and say: We are not going to do it. We are not going to give
you access to us, and you will have to take us all the way to the
Supreme Court.
If they did, if there was unified resistance among the consumer and
among the companies to say ``We are not going to let you have our data
without a fight, and you are going to have to prove suspicion, and that
you
[[Page S3125]]
are going to have to get a specific warrant,'' I think then we might be
able to get back to a more constitutional scenario.
Within the NSA, there has also been evidence of installing filters in
the facilities of Internet and telecommunication companies, serving
them with court orders, and building backdoors into their software and
acquiring keys to break their encryption. If this becomes the norm, you
can see how people will flee American products, and people will say: I
am not going to use American things. There is an enormous, beyond-
imagination economic punishment to our country that is occurring now
and going to continue and worsen if we don't wise up and send a signal.
So for those in this body who say: We need to collect more
information. We are not getting enough information. Warrants be damned.
I don't care what they do. Take all my information, get as much as you
want--those people will have to explain why they are destroying an
American industry and why people around the world are going to say: We
are alarmed at that, and we want some protection. If we are going to
use American products, if we are going to use American email, we want
to know there is not going to be indiscriminate collection of our
information.
Bill Binney was probably or is probably one of the highest ranking
whistleblowers from the NSA. The things he has to say should disturb us
because he probably knows more about this than any of us will ever
know. Bill Binney said that without new leadership--this is in our
intelligence agencies--new laws and top-to-bottom reform, the NSA will
represent a threat of turnkey totalitarianism. The capability to turn
its awesome power--now directed mainly against other countries--will
now be turned on the American public.
Originally, all of these intelligence forays were to get foreigners.
We lowered the standard, saying: Well, they do not live here. These are
potentially terrorists, and so we are going to have a lower standard.
They started out as foreign searches. In fact, the NSA was originally
intended to search for foreigners and to search the information of
foreigners. And I am not opposed to that. In fact, I was on one of the
Sunday morning programs this week, and they asked: Well, are you for
eliminating the NSA?
I said: Of course not. I am for the NSA. I want the NSA to do
surveillance that will help to protect us from attack.
Not only am I for surveillance, I am for looking as deep as it takes.
But I want some suspicion. I want suspicion that this person--that
there is some evidence against this John Doe. You don't have to prove
they are guilty; you just have to have something that points toward
them being suspicious. You then go to the judge, and the judge says:
Here is a warrant. And if there is evidence the people he called is
suspicious, go back to the judge and get another warrant. Go deeper and
deeper. There is no reason why this couldn't be done nearly
instantaneously. There is no reason why it couldn't be done 24 hours a
day. And there is no reason why we can't have security and the
constitution as well.
This battle has not been just about records; it has also been about
another key part of the Bill of Rights, which is the right to a trial
by jury, the right to due process, the right of habeas corpus. The
Fifth and Sixth Amendments I see together as sort of the amendments
that are with regard to your person and with regard to whether you are
treated justly by your government.
As we became fearful of terrorists, we said: Well, we are just going
to capture people and we will just hold them indefinitely. It is one
thing to catch someone on a battlefield in a foreign land shooting at
us--and I have said repeatedly that people in battle don't get due
process, but people outside of battle, particularly American citizens,
should. In some of these cases, we are talking about American citizens
accused of a crime--perhaps terrorism--who are caught in our country.
Yet, we are going to say: Well, they do not really deserve trials. They
do not deserve lawyers.
In fact, and I find this really hard to believe, one Senator said
recently: Well, when they ask you for a judge, just drone them. Ha-ha.
The same guy said: Well, when they ask you for a lawyer, you just
tell them to shut up.
About 10 years ago, Richard Jewell was thought to be the Olympic
Bomber. Everybody said he did it. The TV convicted him within minutes.
Everybody said he was the Olympic Bomber. He fit the profile: He wore
glasses, he was an introvert, he had a backpack, and he seemed very
helpful. Somehow, that was the profile. Everybody said he did it. The
only problem is, he didn't do it.
So here he was accused of being a terrorist, of exploding something,
doing something terrible and killing innocent people. And I think to
myself, if he had been a Black man in the South in 1920, what would
have happened to him? Or if he had been any American in this century if
the people who believe in no jurisprudence were really in charge. We
should be afraid of ever letting these people get in charge of our
government, because the thing is that Richard Jewell was innocent.
People say: Well, these aren't just American citizens, they are enemy
combatants, and we don't give any kind of jurisprudence--no judges or
lawyers for these people. They are enemy combatants.
Well, it kind of begs the question, doesn't it? Who gets to decide
who is an enemy combatant and who is an American citizen? Are we really
so frightened and so easily frightened that we would give up a
thousand-year history, the Magna Carta, even before we had juries--even
in the Greek and Roman times, we had juries. Are we really willing to
give that up and give people a classification that the government
assesses them that cannot be challenged, where people don't get a
lawyer, they do not get presented to a judge and told why they are
being held, and we would hold them forever?
This was the debate over indefinite detention. The response I got
during the debate was: Well, yeah, we would keep them. We would send
them to Guantanamo Bay.
An American citizen?
Sure, if they are dangerous.
Kind of begs the question, doesn't it? Who gets to decide who is
dangerous and who is not?
When this finally made it to the Supreme Court, though, whether you
could hold an American citizen, the Supreme Court rejected the
administration's claim that those labeled ``enemy combatants'' were not
entitled to judicial review. It took years and years to finally have
the Supreme Court tell people that the Bill of Rights was still in
effect, that if you are an American citizen accused of a crime in our
country, no matter how heinous, you do have a right to a trial by jury,
you do have a right to a lawyer, you do have the right of habeas
corpus, you do have all of the rights of an American citizen. And no
one can arbitrarily take those away from you. And if you don't think
that is potentially a problem, think of the South in the 1920s. Think
of what would have happened if Richard Jewell were a Black man in the
1920s. He might not have lived the day. Think if Richard Jewell had
been a Japanese American during World War II, when we decided that the
right of habeas corpus didn't apply to you if your parents were from
Japan or if your grandparents were from Japan.
There was an experiment I remember, I think in college--a psychology
experiment. They put a person in a room, and they said: This person has
information, and we are going to shock them just a little bit. Here is
the dial. You get to decide.
They wanted to ask how high people would turn up the dial. It was
pretty scary--a good amount of people you would imagine are normal,
respectable people--how high they would turn the dial to shock somebody
or to torture somebody. So we think that wouldn't happen, but it does.
Any time we make an analogy to horrific people in history--to
Mussolini or Hitler--people say: You are exaggerating; it is a
hyperbole. Maybe it is. Particularly, to accuse anybody of that is a
horrific analogy, and I am not doing that.
But what I would say is that if you are not concerned that democracy
could produce bad people, I don't think you are really thinking this
through too much. And if you are not concerned about procedural
protections--procedural protections are how evidence is
[[Page S3126]]
gathered, how evidence is taken from your house, what rules the police
have to obey.
People don't quite get this. We don't have a mature discussion on
this. Any time we try to say that this should stop and that someone
could be a bad policeman, the media dumb it down and say that we are
saying policemen are bad. No, it is the opposite. Some 98 or 99 percent
of the police are good. In fact, in the general public it is pretty
close to that.
The thing is that we have the rules in place for the exception to the
rule. We have these procedures in place because maybe it isn't tomorrow
that we decide that we are going to round up all the Japanese Americans
again and put them in internment camps, but maybe next time it is Arab
Americans. So we have to be concerned with this because we don't know
who the next group is that is unpopular.
The Bill of Rights isn't for the prom queen. The Bill of Rights isn't
for the high school quarterback. The Bill of Rights is for the least
among us. The Bill of Rights is for minorities. The Bill of Rights is
for those who have minority opinions. The Bill of Rights is for those
who are oddballs, those who aren't accepted, those who have
unconventional thinking.
If we are so frightened that we are going to throw all the rules out
and we are just going to say that here is my liberty, take it, and here
are my records; I didn't do anything wrong, so I don't mind if you look
at all my records; if you say the standard will now be that if I have
nothing to hide, I have nothing to fear and look at everything I do,
then there will be a time and there will be a danger that, in giving up
your freedom, in giving up your privacy, you will find that the world
you live in is not the world you intended.
There have been good folks within the National Security Agency who
have talked about and have pointed out that we have gone too far. Bill
Binney was one of those. He was a high-ranking NSA official who decided
that they had gone too far.
There was an interview--it has probably been 1 year or 2 years ago--
with Bill Binney that was in ``Frontline.''
One of the first questions was:
What a lot of people in government will say is that you
don't understand; we're still at war. Remember we lost 3,000
people in 9/11. This is a very important program.
They talk about the warrantless collection of all records:
It has saved thousands of lives, as Cheney said at one
point. There are multiple plots that have been stopped
because of this program. You've got to be very careful about
what you wish for, because if you do, you might have another
attack, and you might have blood on your hands.
Fear.
What is your reaction to this question about the
effectiveness of what all this has been?
Binney replied:
First of all, they like to lump it in as one program and
say you can't cancel the program.
In fact, Binney was famous because he had been working on a program
that did investigate terrorists but protected American information and
deleted American information from incidental collection.
So he said:
That's false to begin with. It's multiple programs. The one
program that dealt with domestic spying was called Stellar
Wind.
Stellar Wind was one that was also created by Executive order and was
done without the permission of Congress before the PATRIOT Act.
They had the other foreign ones; you mentioned the names.
There were other names that were listed in the PRISM program
that was dealing with foreign intelligence. There were a
whole bunch of those programs, not just one.
So the point is you stop the intelligence, the domestic
intelligence program, period.
So Binney's opinion was--this is the guy who wrote a lot of the
original programs. Bill Binney said he would continue gathering
information on foreigners. This is a guy who worked for 30 years for
the NSA. He is not some dove who doesn't want to do anything about
terrorists. Bill Binney worked for 30 years to develop the programs to
help us catch terrorists, but he felt it wasn't proper or
constitutional to collect Americans' records without a warrant. He said
if we get incidental records, destroy them; don't collect them.
He says:
Eliminate them. [The records of Americans are] irrelevant
to anything that--
The incidental collection--
is going on. All the terrorists would have been caught by the
process that we put in place for ThinThread--
ThinThread was a program they had before they went to the
unconstitutional program--
which was looking and focusing in on the groups of
individuals that we already had identified and anybody in
close proximity to them in the social graph, plus anybody--
the other simple rules like anybody that was looking at
jihadi advocating sites. . . .
Et cetera.
That would get them all, and you didn't have to do the
collection of all this other data that requires all that
storage, transport of information to the storage, maintenance
of it, interrogation programs, all of that added expense that
they are incurring as a part of it over the last 10 years.
You wouldn't have any of that. . . .
Frontline then asks:
This problem of haystacks, how big a problem is that? Is
that what we've done, is we've created a situation where the
haystacks are bigger, and it's almost impossible to find?
This was Frontline's question. It is a question I have been asking,
also. If you collect all of Americans' records all of the time, if we
collect all of your phone records, can we possibly look at them?
Now, computers are getting better, but still there has to be a human
involved. I think we are overwhelmed with data. At one time about a
year ago, I remember an article where I think they collected millions
and millions of audio hours. They had just been collecting. They were
vacuuming up everything. And I think they had only been able to listen
to about 25 percent of it.
So the thing is that there is information that we need to get and we
should get.
When the Tsarnaev boy--the Boston Bomber--went to Chechnya, we needed
to know that. We needed to continue to see if there was evidence that
we could take to a judge to continue to investigate him. So we do need
surveillance. But what we don't need is indiscriminate surveillance,
and we don't need the haystack to get so big that we can never find the
terrorist in the stack.
Binney responds:
Well, what it simply means is if you use the traditional
argument they say we're trying to find a needle in a
haystack, it doesn't help to make the haystack orders of
magnitude larger, because it makes it orders of magnitude
more difficult to find that needle in the haystack.
Frontline:
And is that what they've done?
Have we made that haystack so large that we are actually
having more trouble catching terrorists because we're
scooping up and swooping up all of America's data?
Binney:
That's what they've done. And now they're looking at things
like game playing and things like people doing that. I mean,
this is ridiculous. How relevant is that to anything?
Frontline:
But they say there're computers, and in Utah they're going
to be able to take all this stored data, and they're going to
be able to go through all of it, and they're going to be able
to connect the dots. Connect the dots--that's what everybody
wanted them to do after 9/11.
Bill Binney, former senior NSA:
See, that's always been possible. Before 9/11 we were doing
that. That was already happening. We already had that
program. That wasn't an issue at all. That's why we should
have picked this out from the beginning. We should have
implemented it, the ThinThread [program that they'd already
been working, the] connect-the-dots program on everything in
the world, but we didn't. That's why we failed. It wasn't a
matter of not having the program; it was a matter of not
implementing the program we had.
When 9/11 came, we gave medals to the heads of our intelligence
agencies. No one was ever fired. Yet the 20th hijacker was caught a
month in advance. Moussaoui was caught in Minnesota for trying to take
off in planes but not land them. The FBI agent there wrote 70 letters
to his superior trying to get a warrant. It wasn't that we had to dumb
down and take away the procedural protections of warrants. The warrant
wasn't denied.
They would have a much stronger argument if they could say: We tried
to catch the terrorists, but the judges kept saying no to warrants.
It is absolutely not true. They didn't ask the judge for warrants. So
the 70 requests in Washington sat at FBI Headquarters and weren't
requested.
[[Page S3127]]
We also had another hijacker in Arizona training to take planes off.
Once again, the FBI agent there was doing a great job in sending the
information to Washington, and but people were not talking to each
other. It had nothing to do with saying the Constitution is too strong,
and we have to weaken the Constitution or we will never catch
terrorists. It had nothing to do with that. But that is precisely the
argument we have.
In the aftermath of 9/11, the PATRIOT Act was rushed to the floor--
several hundred pages--and nobody read it. It didn't come out of--there
was one out of the committee. They didn't use that. They rushed a
substitute to the floor, and no one had time to read it. But people
voted because they were fearful, and people said there could be another
attack and Americans will blame me if I don't vote on this.
But we are now at a stage where we should say: Are we willing to give
up our liberty for security?
Can you not have both? Can you not have the Constitution and your
security? I think you can.
Several agents other than Bill Binney have also said--several
national security officials--that the powers granted the NSA go far
beyond the expanded counterterrorism powers granted by Congress under
the PATRIOT Act.
The court now agrees with that. Any time someone tries to tell you
that metadata is meaningless, don't worry. It is just whom you call. It
is just your phone records. It is not a big deal. Realize that we kill
people based on metadata. So they must be pretty darned certain that
they think they know something based on metadata.
So these are ostensibly or presumably terrorists that are being
killed. But what I would say is that if they are killing people based
on metadata, I would think you would want your own metadata pretty well
protected.
To give you an example of how Representatives are sometimes getting
it right, in the House of Representatives, they have seen and responded
to the people. Thomas Massie and Representative Lofgren introduced an
amendment to the Defense appropriation bill last year. This amendment
would have defunded the warrantless backdoor searches--what they are
doing through 702, which is an amendment to the FISA Act. This is where
we say we are investigating a foreigner, but the foreigner talks to an
American who talks to other Americans, and it ripples out into enormous
amounts of incidental information. The information from 702, when you
analyze it--9 out of 10 bits of information that are collected--is not
about the person we have targeted. They are incidentally collected
about other individuals.
But when Representative Massie and Representative Lofgren introduced
their amendment to defund the backdoor searches and to tell the CIA and
NSA that they cannot mandate that companies give a backdoor entry into
their product, the amendment passed 293 to 123.
But just to show you that no good deed goes unpunished and just to
show you the arrogance of the body--the vast majority of people do not
want their phone records collected without warrant--what did they do
when this passed 293 to 123? They stripped it out in secret in
conference committee and it was gone. The reason it was gone is like
everything else around here. You wonder why your government is
completely broken. We lurch from deadline to deadline, and it is on
purpose really. We do deadline to deadline because we have to go. It is
spring break. We are going to be late for spring break. We have to go,
so we have to finish this up before we go.
It is how the budget is done. No one ever votes on whether we are
going spend X or Y. They put the whole budget into 2,000 pages. Nobody
reads it. It is placed on our desk that day. Nobody has any idea what
is in it. None of your concerns about your Government are ever
addressed. We just pass, boom, the whole thing and it is out the door.
It is the same way with these kinds of things. Because there is a
deadline--and this amendment was passed 293 to 123, saying that we
shouldn't fund these illegal searches and that we should stop the bulk
collection records--it is passed overwhelmingly. Yet, in secret,
somehow it is taken back out of the bill and never becomes law.
Now, while I don't agree completely or really at all with the reform
that has come forward out of the House, it is at least evident they are
listening. They have a bill that would end the bulk collection of
records to replace it with, I think, maybe another form of bulk
collection, but it still passed overwhelmingly, 330-some-odd votes. But
do you know what you hear when it gets over here? They say the Senate
is distanced more from the people and not as responsive--absolutely
true and sometimes to the detriment of the public. Because the thing is
that while it is overwhelmingly popular with the American people that
we should not be collecting your phone records without a warrant--
without a warrant with your name on it, and the House has recognized
this and passed something overwhelmingly to try to fix it--the first
thing I hear over here from people is, Well, we are not collecting
enough of your phone records. They are disappointed that the government
isn't getting--they have access and they claim they can get it, they
gain access to everything, but the Government really is not collecting
all of it, so people are very disappointed; they want to collect more.
The American people say: Enough is enough. We want our privacy
protected. We want the Government to take less of our records. Congress
recognizes that--the House of Representatives. Then it comes over to
the Senate, and the Senate says: Oh, my goodness. We want to collect
more of your records. We do not think we are getting enough into your
privacy. We do not think we have completely trashed the Bill of Rights
enough; let's try to gain more of your records.
One of the other things the Massie-Lofgren amendment did--that did
pass over there--was to get rid of and say that no funds would go to
mandate or request that a person alter his product or service to permit
electronic surveillance.
This is what is going on. What is pretty nefarious and antithetical
to freedom is that our Government is telling companies like Facebook
and Google and these other companies--they are forcing them to let the
government have access into their products.
Everybody knows this is going on. It is no secret, and it is killing
these companies in their worldwide market because non-Americans don't
want to use their email. They are afraid the government has forced
their way into all their transmissions.
There is currently another bill in the House put in by Representative
Pocan, Representative Massie, Representative Grayson, and
Representative McGovern that would repeal the entire thing. It repeals
the PATRIOT Act and FISA amendments of 2008, permits the courts to
appoint experts, permits the courts to have appeal. It basically tries
to make our intelligence courts more like an American court or American
jurisprudence.
EPIC is the Electronic Privacy Information Center. They talk some
about these national security letters I mentioned earlier. There are
now hundreds of thousands of national security letters. These are
letters that are warrants. They are not signed by judges. They are
actually signed by the police. This goes against the fundamental
precept of our jurisprudence. The fundamental aspect was that we
divided police from the judiciary. It is supposed to be a check and
balance. In case the local policemen had some sort of bias, they always
had to call somebody else. It is not perfect, but it is a lot better
than not having a check and balance.
When we got to NSL--this comes out of the PATRIOT Act--they start out
with a few thousand, and they grow and grow. Now there are hundreds of
thousands of them. But realize that the national security letter is
similar to what we fought the Revolution over. We fought the Revolution
over writs of assistance, which are basically generalized warrants, but
they were also written by British soldiers. We were offended that a
soldier would come into our house with a self-written permit.
A lot of the reaction and the reason we wrote the Bill of Rights the
way we did is that we were concerned with British abuses. We were
concerned with the idea of general warrants. So when we wrote the
Fourth Amendment, we
[[Page S3128]]
said that it had to be specific to an individual. We said you had to
name the individual. That is one of the real problems with the bulk
collection of records. They are not really based on suspicion of an
individual because basically the government is collecting all of your
records, indiscriminately.
The government is not even obeying the loose restrictions they put in
place. The Constitution says you have to have probable cause. You have
to present some evidence to a judge. You don't have to prove that they
are guilty, but you have to have enough evidence that the judge says it
looks like that person could be guilty of a crime.
So with the PATRIOT Act we lowered that standard and then lowered it
again. For collecting information under the PATRIOT Act, all you have
to do is say that the information you want is relevant to an
investigation. When this got to the court, the court basically said
this is absurd. So 2 weeks ago, the court just below the Supreme Court
said it is absurd to say that every American's phone record is somehow
relevant to a terrorist investigation. They said it takes the meaning
of the word ``relevant'' and basically destroys any concept that the
word has meaning at all.
The PATRIOT Act went to a much lower standard, not probable cause but
just that it might be relevant to an investigation. And even with that
lower standard, the court said that is absurd.
How does the President respond? The President responds by doing
nothing. The President could end this program tomorrow. Every one of
your phone records is being collected without suspicion, without
relevance. In contradiction to even what the PATRIOT Act says, your
records are being collected. The second highest court in the land has
said this is illegal, and the President does nothing. The President
said to Congress, Oh, yes; I will do it if Congress will do it.
It is a bit disingenuous. We did not start the program. The authors
of the PATRIOT Act had no idea this was going on. The PATRIOT Act,
according to the court, does not even justify this.
We are looking at telephone records. We are looking at email records.
EPIC, the Electronic Privacy Information Center, has another big
complaint about this; that people were put forward and then told that
they could not even talk about the fact that they had been given a
warrant. They were threatened with 5 years in prison for even
mentioning that they had been served a warrant.
This, I think, is an obvious contradiction of the First Amendment. We
have legislation that contradicts the Fourth and the First Amendments.
The national security letters in 3 years, from 2003 to 2005--these
are the warrants that are written by FBI agents, not written by a
judge--there were 143,000 warrants given out in our country to
Americans with a warrant written by the police.
The New York Times has talked about this, and Charlie Savage in a
report last year reported that the Justice Department had to apologize
to a Federal appeals court for providing inaccurate information about a
central case challenging the unconstitutionality.
Now, what is truth and what isn't truth. When you go to a court, it
is like when your kids fight; there are two sides to everything. One
child has one argument, and the other child has the other argument. The
truth is listening to both sides and trying to figure out what the
truth is. The court is no different. But in these courts, you are only
hearing one side and only the government represents their case.
The government says that we want all the phone records because they
are relevant. No one stands up on the other side and says: I object.
That is one of the reforms Senator Wyden and I have talked about,
having somebody represent the accused, somebody to stand up and say
maybe all the phone records in the country are not relevant, maybe they
are not relevant to an investigation. It would be absurd to say every
American's records would be relevant.
Probably no one in America knows more about this subject than Senator
Wyden, who I see has come to the floor. Senator Wyden knows more about
this because he has been on the Intelligence Committee for several
years.
There are two tiers within Congress. There is a great deal of
information that I have never been told. Even though I was elected to
represent Kentucky, I am not allowed to know a lot of things that
happen in the Intelligence Committee. The downside for Senator Wyden is
he is allowed to know more but then he is not allowed to talk about it,
which makes it a problem. It is hard to have dissent in our country. If
I am not given information, how can I complain about it? And if the
Senator from Oregon is given information, he is not allowed to complain
about it.
These are the things we struggle with in trying to find truth.
Mr. WYDEN. Will the Senator from Kentucky yield for a question,
without losing his right to the floor?
Mr. PAUL. Yes.
Mr. WYDEN. I thank my colleague. It is good to be back on the floor
with him once again on this topic.
As we have indicated, this will not be the last time we are back on
the floor.
My colleague has made a number of very important points already. I
was especially pleased when my colleague brought to light something
that is little known; that the Attorney General of the United States is
interested in--excuse me--the FBI Director is interested in requiring
companies to build weaknesses into their products. In other words, we
have had companies interested in encryption, as my colleague mentioned.
What happened as a result of that encryption, they had a chance to
start getting back the confidence of consumers, both in the United
States and worldwide--and then the FBI Director has been interested in,
in effect, allowing companies to build a backdoor into their systems.
This, once again, kind of defies commonsense because the keys will not
just be out there for the good guys. They will also be available to the
bad guys.
I am very pleased that my colleague from Kentucky highlighted one
particular new development in this debate, and I have sought as a
member of the Intelligence Committee for some time to come up with an
approach that once again demonstrates that security and liberty are not
mutually exclusive. But we are certainly not going to have both, as my
colleague touched on in his statement, if the policy of the FBI
Director is to require companies to build a backdoor into their
products--build weaknesses into their products.
Now, the Senator from Kentucky is very much aware that my staff and a
number of Senators are currently working through a number of issues and
amendments related to the question of how we can pass trade legislation
and get more family wage jobs for our people through exports. A number
of us, myself specifically, have been concerned that the majority
leader and other supporters of business as usual on bulk collection of
all of these phone records would somehow try to take advantage of our
current discussions and try to, in effect, sneak through a motion to
extend section 215 of the USA PATRIOT Act. As long as the Senator from
Kentucky has the floor, that cannot happen. My hope is that once our
colleagues have agreed on a path to go forward with job-creating,
export-oriented trade legislation, it will be possible to resume our
work on that very important bill.
In the meantime, my question for my colleague pertains to an issue
that he noted I have been at for some time. As my colleague knows, I
have been trying to end the bulk phone record collection program since
2006, and the reason I have is because this bulk phone record
collection program is a Federal human relations database.
When the Federal Government knows whom you have called, when you have
called, and often where you have called from, which is certainly the
case if somebody calls from a land line and someone has a phonebook,
the government has a lot of private and intimate information about you.
If the government knows that you called a psychiatrist three times, for
example, in 36 hours, twice after midnight, the government doesn't have
to be listening to that call. The government knows a whole lot about
what most Americans would consider to be very private.
This has been an important issue. My colleague from Kentucky has been
an invaluable ally on this particular cause since he arrived in the
Senate, and I just want to give a little bit more background and then
get my colleague's reaction to this question.
[[Page S3129]]
I have seen several of my colleagues come to the floor of the Senate
and talk about why we ought to keep a bulk phone record collection, and
the statement has somehow been that this is absolutely key for strong
counterterror. That is a baffling assertion, I say to my colleague from
Kentucky, because even the Director of National Intelligence and the
Attorney General are saying it is not. So what we have are Members of
the Senate saying that bulk collection--some of them--ought to be
preserved in order to fight terror, and the Director of National
Intelligence and the Attorney General, two individuals who are not
exactly soft on terror, saying it is not.
If Senators, and those who might be following this debate, are
seeking a more detailed analysis, I hope they will check out the very
lengthy report on surveillance that was issued by the President's
review group. This group's members have some very impressive national
security credentials. These are not people who are soft on fighting
terror. One of them was the Senior Counterterror Adviser to both
President Clinton and President Bush and another served as Acting
Director of the CIA, and this review group--a review group led by
individuals with pristine antiterror credentials--said on page 104 of
their report that ``the information contributed to terrorist
investigations by the use of section 215 [bulk] telephony meta-data was
not essential to preventing attacks and could readily have been
obtained in a timely manner using [individual] section 215 orders.''
What this distinguished group of experts said supports what the
Senator from Kentucky is saying and what I and others have been saying
for some time.
The Senator from Kentucky pointed out my service on the Intelligence
Committee. I think Senator Feinstein and I are two of the five longest
serving members in the committee's history. We didn't find out about
bulk collection until it had been underway for quite some time because
it was concealed from most members of the Intelligence Committee for
several years. But given the fact that we began to see in 2006 and
early 2007 what is at stake, this has been a fight that has been going
on for 8 years.
An additional reason I appreciate the Senator from Kentucky being
here now is that for these 8 years and multiple reauthorizations, it
has always been the same pattern. It was almost like the night follows
the day. Those who were in favor of dragnet surveillance and those who
were in favor of the bulk collection program, in effect, wait until the
very last minute and then they say: Oh, my goodness. It is a dangerous
world. We have to continue this program just the way it is.
Well, I tell my colleague from Kentucky, and I know he shares my view
on this, that there is no question that it is a very dangerous world.
Anybody who has served on the Intelligence Committee, as I have for
more than 14 years, and goes into those classified meetings on a weekly
basis, does not walk out of there without the judgment that it is a
very dangerous world. But what doesn't make sense is to be pursuing
approaches that don't make us safer and compromise our liberties. That
is what doesn't make sense.
Last year, along with my colleagues Senator Heinrich and Senator Mark
Udall, I filed a brief in a case that was before the Court of Appeals
for the Second Circuit. It is an important court. It is one of the
highest courts in our country.
In the brief, we said we ``have reviewed this surveillance
extensively and have seen no evidence that the bulk collection of
Americans' phone records has provided any intelligence of value that
could not have been gathered through means that caused far less harm to
the privacy interests of millions of Americans.''
What we are talking about, in effect, are conventional approaches
with respect to court orders and then there are emergency
circumstances. So when the government believes it has to act to protect
the American people, it can move quickly and then, in effect, come back
and settle up later.
The conclusion we reached after reviewing bulk collection very
carefully was based on 8 years' worth of work, and of course we
recently had this court declare bulk collection to be illegal.
My first question is, Does the Senator from Kentucky agree there is
no evidence that dragnet surveillance now makes America any safer?
Mr. PAUL. Mr. President, that is a great question, and I also think
it is very difficult to prove these things one way or another
sometimes. We are at a great disadvantage because a lot of times they
hold all of the information. I think it was nothing short of miraculous
that you and others were able to investigate this and show that in
reality all of these folks who they allege could have been caught would
have been caught through traditional surveillance and through
traditional warrants.
I think this is a pretty important point because they want us to live
in fear and give up the Fourth Amendment, but it turns out even the
practical argument is not an accurate one because it turns out that
almost always, if not always, the terrorists seem to be caught through
sort of the normal channels of human intelligence, suspicion, and
finding out something about them that causes us to investigate them.
I, like the Senator from Oregon, do want to catch terrorists and I
also want to keep our freedom at the same time. I think it was a pretty
important conclusion, not only by the review board but also by the
Privacy and Civil Liberties Oversight Board as well, the review panel,
two groups of folks from the administration.
I am also interested in hearing the Senator from Oregon talk about an
op-ed he wrote which appeared in the Los Angeles Times in December.
Senator Wyden wrote that building a backdoor into every cell phone,
tablet or laptop means directly creating weaknesses that hackers and
foreign governments can exploit.
I would be interested in entertaining a question concerning that.
Mr. WYDEN. Mr. President, I apologize to my colleague. I ask that my
colleague restate his question.
Mr. PAUL. This is on op-ed that was written by the Senator from
Oregon and appeared in the LA Times in December. The op-ed says that
building a backdoor into every cell phone, tablet or laptop means
deliberately creating weaknesses that hackers and foreign governments
can exploit.
I think expanding on that in the form of a question would help us to
understand exactly what the Senator means by that.
Mr. WYDEN. What the Senator is asking about is a statement made by
the FBI Director, Mr. Comey. This is not some kind of hidden article.
It was on the front pages of all of our papers and really deserves, as
my colleague is suggesting, some consideration.
In fact, one of the last things I did as chairman of the Senate
Finance Committee--I had a relatively short tenure there in 2014--was
to hold a workshop in Silicon Valley on this issue. The problem stems
from the fact that with the NSA overreach taking a huge toll on our
companies and the confidence that consumers, both here and around the
world, had in the privacy of their products, these companies said we
have to figure out a way to make sure consumers here and around the
world understand that we are going to protect their privacy. So they
decided to put in place products that had strong encryption. They felt
that was important to be able to assure their consumers that when they
sold something, their privacy rights were protected. In doing so, of
course, they also made it clear, as has always been the case, that when
the government believes an individual could put our Nation at risk, you
get an individual court order, you use emergency circumstances, and you
could still get access to information.
The response by our government, which contributed mightily to the
problem by the NSA's overreach in the first place, was our government
saying: Nope. You are not going to be able to use that encryption to
bring back the confidence that Americans and people around the world
have in your products. There were projections that these companies were
already losing billions and billions of dollars in terms of the
consequences of loss of privacy.
The response of the government was to say: We are looking at
requiring you to build weaknesses into your products and, in effect,
create a backdoor so we can get easy entry.
(Mr. GARDNER assumed the Chair.)
[[Page S3130]]
I know at townhall meetings at home in Oregon, I have talked about
the concept of our government requiring companies to build weaknesses
into their products. People just slap their foreheads. They say: What
is that all about? It is your job to make sure we have policies that
both secure our liberty and keep us safe. It is not your job to tell
companies to build weaknesses into their products.
In effect, you have to just throw up your hands when they say: We
can't do it, so the company ought to build weaknesses into the
products.
As my colleague said, I pointed out that once you do that, it will
not just be the good guys who have the keys, it will be bad guys who
have the keys at a time when we are so concerned about cyber security.
I wish to ask my colleague one other question on one other topic he
and I have spoken about at great length. Is the Senator from Kentucky
troubled by the fact that a number of high-ranking intelligence
officials have not been forthright in recent years with respect to this
bulk collection and the collecting of data on millions or hundreds of
millions of Americans? As my colleague knows, I have been particularly
troubled by this.
I ask the question because my colleague and I have pointed out that
we have enormous admiration for the rank-and-file in the intelligence
field. These are individuals who day in and day out get up in the
morning and contribute enormously to the well-being of the American
people, and we have enormous respect for them. We are grateful to them.
They are patriots, and they serve us well every day. I personally do
not think they have been well-served by the fact that a host of high-
level intelligence officials have not exactly been straight or
forthright with the Congress and the American people on these issues.
I would be interested in the views of my colleague on this subject
because we have discussed this at some length. I am glad to be able to
put it in the context of making sure that Americans know that the two
of us greatly respect the thousands of people who work in the
intelligence field and serve us well and do and have done the things
necessary to apprehend and kill bin Laden but that we are concerned
about the question of the veracity, the forthrightness of some of the
members of the intelligence community at the highest levels. What is
the reaction of my colleague to that?
Mr. PAUL. I think the vast majority of the intelligence community, as
are the vast majority of policemen, good people. They are trying to do
what is best for the country. They are patriotic people, and they are
really trying to do what is necessary within the confines of the law.
The issue is that the intelligence community has such vast power, and
a lot of it is secret power. So we have to have a great deal of trust
in those who run the agency because we have entrusted them with such
enormous power to look through information. Then, when they come to us
and say, ``Well, you have to give up a little more liberty; you have to
give up a little bit more in order to get security,'' we have to trust
the information because they control all of the information they give
us. And then we find--when we ask a high-ranking official in the
committee whether they were doing bulk collection of data and the
answer was not true--they said they weren't doing something that they
obviously were doing--it makes us distrust the whole apparatus.
I agree with the Senator from Oregon that the vast majority of law
enforcement and the intelligence community are good people. They are
patriotic. They want to stop terrorism, as we all do. But what we are
arguing about is the process and the law and the Constitution and
trying to do it within the confines of the Constitution. But when we
have someone at the very top who doesn't tell the truth in an open
hearing under oath, that is very troubling and makes it difficult.
Mr. WYDEN. I appreciate my colleague's assessment on that issue. He
knows that it was very troubling that in 2012 and in 2013, we just
weren't able to get straight answers to this question of collecting
data on millions or hundreds of millions of Americans.
My colleague will recall that the former NSA Director said that--he
had been to a conference--and that he was not involved in collecting
``dossiers'' on millions of Americans. Having been on the committee at
that point for over a dozen years, I said: Gee, I am not exactly sure
what a ``dossier'' means in that context.
So we began to ask questions, both public ones, to the extent we
could, and private ones, about exactly what that meant, and we couldn't
get answers to those questions. We just couldn't get answers.
The Intelligence Committee traditionally doesn't have many open
hearings. By my calculus, we probably get to ask questions in an open
hearing for maybe 20 minutes, maximum, a year. So after months and
months of trying to find out exactly what was meant, we felt it was
important to ask the Director of National Intelligence exactly what was
meant by these ``dossiers'' and government collecting data and the
like. So at our open hearing, I said: I am going to have to ask the
Director of National Intelligence about this. And because I have long
felt that it was important not to try to trick people or ambush them or
anything of the sort, we sent the question in advance to the head of
national intelligence. We sent the exact question: Does the government
collect any type of data at all on millions of Americans? We asked it
so that he would have plenty of time to reflect on it. We waited to see
if the Director would get back to us and say: Please don't ask it.
There has always been a kind of informal tradition in the Intelligence
Committee of being respectful of that. We didn't get that request, so I
asked it. When I asked: Does the government collect any type of data at
all on millions of Americans, the Director said no. I knew that wasn't
accurate. That was not a forthright, straightforward, truthful answer,
so we asked for a correction. We couldn't get a correction.
I would say to my colleague that since that time, the Director or his
representatives have given five different reasons why they responded as
they did, further raising questions in my mind, not with respect to the
rank-and-file in the intelligence community--the thousands and
thousands of hard-working members of the intelligence community my
colleague and I feel so strongly about and respect so greatly.
I wish to ask just one other question with respect to where we are at
this point and what is ahead. As long as the Senator from Kentucky
holds the floor, no one will be able to offer a motion to consider an
extension of the USA PATRIOT Act. But at some point in the near future,
whether it is this weekend or next week or next month, my analysis is
the proponents of phone record collection are going to seek a vote in
the Senate to continue what I consider to be this invasion of privacy
of millions and millions of law-abiding Americans. When that happens, I
intend to use every procedural tool available to me to block that
extension. And if at least 41 Senators stand together, we can block
that extension and block it indefinitely. If 41 Senators stick
together, there isn't going to be any short-term extension, and
finally, after something like 8 years of working on this issue, finally
we will be saying no to bulk phone record collection.
I am certain I know the answer to this question, but I think we both
want to be on the Record on this matter. When that vote comes, the
Senator is going to be one of the 41 Senators who are going to block
that extension. I have appreciated his leadership.
I would just like his reaction to our efforts to go forward once
again when we have to do it with proponents of mass surveillance
seeking an actual vote to continue business as usual with respect to
dragnet surveillance.
Mr. PAUL. I think the American people are with us. I think the
American people don't like the idea of bulk collection. I think the
American people are horrified.
I think it will go down in history as one of the most important
questions we have asked in a generation when the Senator from Oregon
asked the Director of National Intelligence: Are you gathering in bulk
the phone records of Americans? And when he didn't tell the truth and
then when the President kept him in office and then how that led to
this great debate we are having now--I think the American people are
with us.
[[Page S3131]]
I don't think those inside Washington are listening very well, so I
think those inside Washington have not come to the conclusion yet. But
I think the Senator from Oregon is right. There may be enough of us now
to say: Hey, wait a minute, you are not going to steam roll through
once again something that isn't even doing what you said it is going to
do.
No one said at the time of the PATRIOT Act that it meant we could
collect all records of all Americans all the time. In fact, in the
House, one of the cosponsors of the bill, James Sensenbrenner, knew all
about the PATRIOT Act. He was a proponent of the PATRIOT Act, and he
said never in his wildest dreams did he think that what he voted for
would say we could gather all the records all the time.
But I am interested in another question, and that would be whether
the Senator from Oregon has a question that will help us to better
understand, if we were to stop bulk collection tomorrow, if we were to
eliminate what is called section 215 of the PATRIOT Act, if we were to
do that, is there still concern and worry about what is called
Executive Order 12333?
I am not aware of whether the Senator can or can't talk about this or
what is public. From what I have read in public and from one of the
insightful articles from John Napier Tye, the section chief for
Internet freedom in the State Department, he has written that his
concern is that this Executive order may well allow a lot of bulk
collection that is not justified and not given sanction under the
PATRIOT Act.
Does the Senator from Oregon have a question that might help the
American public to understand that?
Mr. WYDEN. I would just say to my colleague that we always have to be
vigilant about secret law. And we have, in effect, found our way into
this ominous cul-de-sac that the Senator from Kentucky and I have been
describing here this afternoon really because of secret law.
As I wrap up with this question and hearing the concern of my
colleague--because I think that is what is at the heart of his
question, that ``secret law'' is what the interpretation is in the
intelligence community of the laws written by the Congress. Very often
those secret interpretations are very different from what an American
will read if they use their iPad or their laptop. For example, on
section 215, bulk phone records collection, I don't think very many
people in Kentucky or Oregon took out their laptop, read the PATRIOT
Act, and said: Oh, that authorizes collecting all the phone records on
millions of law-abiding Americans.
There is nothing that even suggests something like that, but that was
a secret interpretation.
So I am very glad the Senator from Kentucky has chosen to have us
wrap up at least this part of our discussion with the questions that we
have directed to each other on this question of secret law because, as
my colleague from Kentucky and I have talked about, we both feel that
operations of the intelligence community--what are called sources and
methods--they absolutely have to be secret and classified because if
they are not, Americans could die. Patriotic Americans who work in the
intelligence community could suffer grievous harm if sources and
methods and the actual operations were in some way leaked to the
public. But the law should never be secret. The American people should
always know what the law means. And yet, with respect to bulk
collection and why that court decision was so important, what happened
was that a program that had been kept secret, that had been propped up
by secret law, was declared illegal by an important court.
So I will just wrap up by way of saying that the Senator from
Kentucky and I have always done a little kidding over the years about
our informal Ben Franklin caucus. Ben Franklin was always talking about
how anybody who gave up their liberty to have security really deserves
neither.
I just want to tell my colleague that I am very appreciative of his
involvement in this. From the time my colleague came to the Senate, he
has been a very valuable ally in this effort. My colleague recognized
this was not about balance. This is a program that doesn't make us
safer but compromises our liberty. It is not about balance. And at page
104, you can read that the President's own advisers say that.
So I am very pleased that the informal Ben Franklin caucus is back in
action this afternoon. I look forward to working closely with my
colleagues on this. As I indicated by my question, I expect we will be
back on the floor of this wonderful body before long having to once
again tackle this question of whether it ought to be just business as
usual and a re-up of a flawed law. My colleague and I aren't going to
accept that.
I thank him for his work today. These discussions and being on your
feet hour after hour are not for the fainthearted. I appreciate my
colleague's leadership, and I once again yield the floor back to him.
Mr. PAUL. Mr. President, I would like to thank the Senator from
Oregon, and I would like to point out to the American people, to people
who are always crying out and saying ``Why can't you work together? Why
can't you work with the other side?'' that I think we have a false
understanding sometimes of compromise. The Senator from Oregon is from
the opposite party. We are in two opposite parties, and we don't agree
on every issue. But when it comes to privacy and the Bill of Rights and
what we need to do to protect the Fourth Amendment, we are not
splitting the difference to try to find a middle ground between us. We
both believe in the Fourth Amendment. We both believe in protecting the
Fourth Amendment and protecting your right to privacy.
So bipartisanship can be about two people believing in the same thing
but just being in different parties. It means we may not agree on 100
percent of issues, but on a few, we are exactly together, and we don't
split the difference. It isn't always about splitting the difference.
You can have true, healthy bipartisanship, Republican, Democrat,
Independent coming together on a constitutional principle, coming
together on something that is important.
I didn't come to the floor today because I want to get some money for
one individual project for one person. I came because I want something
for everybody. I want freedom for everybody, and I want protection for
the individual. I want protection against the government's invasion of
your privacy.
I thank the Senator from Oregon for his insightful questions.
One of the things we talked a little bit about as Senator Wyden and I
were going through a series of questions was some of the different
boards that have been put in place by the President and have come out
and said that the program--the Executive order--the President put in
place two panels, a review panel and another one called the Privacy and
Civil Liberties Oversight Board, and, interestingly, both panels told
him the same thing: that what he was doing was illegal and wrong and it
ought to stop. Then the President came out and said ``That is great,''
but then he keeps doing it.
I don't quite understand because I like the President and I take him
at his word, and he says: Well, yes, I am balancing this and that, and
they told me this, and if Congress stops it, I will obey Congress. It
is like, we didn't start this. The President started this program by
himself. He didn't tell us about it. Maybe one or two people knew about
it. Almost all of the representatives didn't know about it, and no
Americans knew about it. And then when we asked them about it, they
lied to us and said they weren't doing it.
The President has two official panels, and they both said it is
illegal and ought to stop. And the PATRIOT Act doesn't justify what
they are doing. And this was all created by Executive order.
So what is the President's response? He just keeps collecting your
records. Does nobody in America think this is strange or unusual that
the President will continue a program that his own advisers tell him is
illegal and that the courts have now said is illegal, and he goes on.
But this isn't all one-sided. That is for one political party. But in
my political party, there are people saying: I guess the President's
advisers say it is illegal, the court says it is illegal, but, man,
they are not collecting enough. I just wish they were collecting more
Americans' records without a warrant.
What a bizarre world, that people don't seem to be listening to the
[[Page S3132]]
courts, to the experts, or to the Constitution.
The Privacy and Civil Liberties Oversight Board, though, I think
really had some insightful comments. They give a description, first of
all, of collecting all of your phone records, and I like the way they
put it. They said that an order was given so that the NSA is ``to
collect nearly all call detail records generated by certain telephone
companies in the United States. . . .'' Sometimes when you read a
sentence, you don't quite get to the importance. ``Nearly all.'' So we
are not talking about 1,000 records. We are not talking about 1 million
records. We are talking about nearly all of the records in the entire
United States. There are probably over 100 million phones, I am
thinking, in the United States, so over 100 million records. Every
record has thousands of pieces of information in it, so we are talking
about billions of bits of information that the government is
collecting.
I don't have a problem if they want to collect the phone data of
terrorists. In fact, I want them to. I don't have a problem if they
will go 100 hops into the data if they have a warrant. If John Doe has
a warrant, look at all his phone records. Ask a judge to put his name
on the warrant and look at all of his records. If there are 100 people
he called and they are people you are suspicion of, call them, too. Go
to the next hop, go to the next hop, go to the next hop. There is no
limit. But just do it appropriately. Do it appropriately with a warrant
with somebody's name on it. I see no reason why we can't do this with
the Constitution.
We are now collecting the records of hundreds of millions of people
without a warrant, and I think it needs to stop. The President's own
commission says to stop. Here is what the commission says: ``From 2001
through early 2006 the NSA collected bulk data based on a Presidential
authorization.''
So, interestingly--and this ought to scare you, too--they didn't even
use the PATRIOT Act in the beginning at all. The President just wrote a
note to the head of the NSA and said: Just start collecting all their
stuff, without any kind of warrant. And then later on they started
saying: Well, maybe the PATRIOT Act justifies this. But for 5 years
they collected data with no warrant and with no legal justification,
and they do it through something they call the inherent powers of the
President, article II powers.
Article II is the section of the Constitution that gives the
President powers. We designate what the President can do. Article I
designates what we can do. Interestingly, our Framers put article I
first, and those of us in Congress think that maybe they thought the
powers of Congress were closer to the people and more important, and
they gave delegated powers to us, and they were very specific.
But what concerns me about the bulk collection is that for 5 years it
wasn't even done with regard to the PATRIOT Act. I am guessing it was
done under the Executive order.
As much as I don't like the PATRIOT Act and would like to repeal the
PATRIOT Act and simply use the Constitution, I am afraid that even if
we repeal the PATRIOT Act, they would still do what they want. Your
government has run amok. Things are runaway, and the government really
is not paying attention to the rule of law.
For the first time, in 2006, the court got involved. The intelligence
court at that time finally heard the first order under section 215. So
for 5 years they were collecting all the phone records with just a
Presidential order. Now we do it under the PATRIOT Act.
But the rule of law is about checks and balances. It is about
balancing the executive branch and the legislative branch and the
judiciary branch. It is about balancing the police in the judiciary. We
talked about warrants and the police not writing warrants.
I see on the floor one of the Nation's leading experts in the Fourth
Amendment and the Constitution, who has recently written a book on
this, and I told him recently I have been stealing his story and at
least half the time giving him credit for it. But I talked earlier on
the floor about the story of John Wilkes, and if the Senator from Utah
is interested in telling us a little bit of the story, I would like to
hear a little bit from his angle or in the form of a question or any
other question he has.
Mr. LEE. I would like to be clear at the outset that while the
Senator from Kentucky and I come to different conclusions with regard
to the specific question as to whether we should allow section 215 of
the PATRIOT Act to expire, I absolutely stand with the junior Senator
from Kentucky and, more importantly, I stand with the American people.
With regard to the need for a transparent, open amendment process and
for an open, honest debate in front of the American people on the
important issues facing our Nation, including this one--and I certainly
agree with the Senator from Kentucky that the American people deserve
better than what they are getting, and, quite frankly, it is time that
they expect more from the Senate.
On issues as important as this one, on issues as important as the
right to privacy of our citizens and our national security, this is not
a time for more cliffs, more secrecy, and more eleventh-hour backroom
deals that are designed to mix conflict, mix crisis in a previously
arranged time crunch in which the American people are presented with
something where they don't really have any real options.
It is time for the kind of bipartisan, bicameral consensus I believe
is embodied in the USA FREEDOM Act. While I often criticize Congress
for our economic deficits, our financial deficits, the core of this
current challenge we face is centered around the Congress's deficit of
trust--in this particular circumstance, the Senate's deficit of trust.
Members of our body routinely tell the American people to just trust
us. Trust us, we will get it right. Just trust us, we will
appropriately balance all the competing concerns.
I think it is time that we trust the American people by having an
honest discussion with them emanating from right here on the floor of
the Senate. It is time to discuss and debate and to amend the House-
passed USA FREEDOM Act.
I am confident that Senator Paul and others among my colleagues who
have different ideas from mine will be happy to offer and debate
amendments to improve it and make it something perhaps that they could
even support. In fact, as far as I am aware, Senator Paul and others
have amendments that they are eager and anxious and willing and ready
to present and to have discussed here on the floor and voted on right
here on the floor of the Senate.
But first I am calling on my Republican and Democratic colleagues to
help repair the dysfunctional legislative branch we have inherited, to
rebuild the Senate's reputation as not only our Nation's but the
world's greatest deliberative body, and, by extension, slowly restore
the public's confidence in who we are and what we are here to do here
in the Senate.
The greatest challenge to policymaking today is perhaps distrust. The
American people distrust their government. They distrust Congress in
particular. It is not without reason. For their part, Washington
policymakers seem to distrust the people.
Almost as pressing for the new majority here in the Senate is that
the distrust that now exists between grassroots conservative activists
and elected Republican leaders can be particularly toxic. Leaders can
respond to this kind of distrust in one of two ways. One option
involves the bare-knuckles kind of partisanship that the previous
Senate leadership exhibited over the last 8 years, twisting rules,
blocking debate, and blocking amendments, while systematically
disenfranchising hundreds of millions of Americans from meaningful
political representation right here in this Chamber. But this is no
choice at all. Contempt for the American people and for the democratic
process is something Republicans should oppose in principle. In fact,
it is something we oppose in principle.
We should throw open the doors of Congress, throw open the doors of
the Senate, and restore genuine representative democracy to the
American Republic. What does this mean? Well, it means no more cliff
crises, no more secret negotiations, no more ``take it or leave it''
deadline deals, no more passing bills without reading them, and no more
procedural manipulation to block debate and compromise. These are the
[[Page S3133]]
abuses that have created today's status quo--the very same status quo
that Republicans have been elected to correct.
What too few in Washington appreciate and what this new Republican
majority in Congress must appreciate if we hope to succeed is that the
American people's distrust of their public institutions is totally
justified. There is no misunderstanding here. Americans are fed up with
Washington, and they have every right to be. The exploited status quo
in Washington has corrupted America's economy and their government, and
its entrenched defenders, powerful and sometimes rich in the process.
This situation was created by both parties, but repairing it is now
going to fall to those of us in this body right now. It is our job to
win back the public's trust. That cannot be done simply by passing
bills or even better bills. The only way to gain trust is to be
trustworthy. I think that means that we have to invite the people back
into the process, to give the bills we do pass the moral legitimacy
that Congress alone no longer confers.
In order to restore this trust, Members will have to expose
themselves to inconvenient amendment votes, inconvenient debate and
discussion, and scrutiny of legislation we are considering. The result
of some votes in the face of certain bills may, indeed, prove
unpredictable, but the costs of an open source, transparent process are
worth it for the benefits of greater inclusion and more diverse voices
and views and for the opportunity such a process would offer to rebuild
the internal and the external trust needed to govern with legitimacy.
My friend and colleague, the junior Senator from Kentucky, has
referred to a story of which I have become quite fond, a story that I
have written about and talked about in various venues throughout my
State and throughout America. It relates to a lawmaker, a lawmaker who
served several hundred years ago, a lawmaker named John Wilkes--not to
be confused with John Wilkes Booth, Lincoln's assassin. This John
Wilkes served in the English Parliament in the late 1700s.
In 1763, John Wilkes found himself at the receiving end of anger and
resentment by the administration of King George III. King George III
and his ministers were angry with John Wilkes.
At the time, there were these weekly news circulars, weekly news
magazines that went out and would often just extol the virtues of King
George III and his ministers. One of them was called the Briton. The
Briton was written, produced, and published by those who were loyal to
the King, and they would say only glowing things about the King. They
would write things about the King saying: Oh, the King is fantastic.
The King can do no wrong. Had sliced bread been invented as of 1763, I
am sure the Briton would have reported that the King was the greatest
thing since sliced bread. All they could say were nice things about the
King because they were written by the King's people.
Well, John Wilkes decided to buck that trend. He started his own
weekly circular called the North Briton. The North Briton took a
different angle. The North Briton took the angle that it was supposed
to be in the interests of the people that he reported the news and that
he made commentary. So in the North Briton John Wilkes would
occasionally be so bold as to criticize or question King George III and
the actions of the King and of the King's ministers.
This proved problematic for some in the administration of King George
III. The last straw seemed to come with the publication of the 45th
edition of the North Briton, North Briton No. 45. When North Briton No.
45 was released, the King and his ministers went crazy. Before long,
John Wilkes found himself arrested. John Wilkes found himself subjected
to a very invasive search pursuant to a particular type of warrant. It
had become, unfortunately, all to common in that era, a type of warrant
we will refer to as a general warrant. Rather than naming a particular
place or a particular person where things would be searched and seized,
this warrant simply identified an offense and said: Go after anyone and
everyone who might in some way be involved in it. It gave unfettered,
unlimited discretion to those executing and enforcing this warrant as
to how and where and with respect to whom this warrant might be
executed.
So they went through his house even though he was not named in the
warrant, even though his home, his address, was not identified in the
warrant. They searched through everything. John Wilkes was,
understandably, outraged by this, as were people throughout the city of
London when they became aware of it. John Wilkes, while in jail,
decided he was going to fight back. He fought in open court the terms
and the conditions of his arrest. He ended up fighting against this
general warrant. He eventually won his freedom.
Over time, he was reelected repeatedly to Parliament. In time, he
also brought a civil suit against King George III's ministers who were
involved in the execution of this general warrant, and he won. He was
awarded 4,000 pounds, which was a very substantial sum of money at the
time. The other people who were subjected to the same type of search
under the same general warrant were also awarded a recovery under this
same theory, to the point that in present-day terms, there were many
millions of dollars that had to be paid out by King George III and his
ministers to the plaintiffs who sued under this theory that they were
unlawfully subjected to a search under a general warrant.
In time, the number 45, in connection with the North Briton No. 45--
the publication that had sparked this whole inquiry--the number 45
became synonymous with the name John Wilkes, and then John Wilkes in
turn became synonymous with the cause of liberty. People throughout
Britain and throughout America would celebrate the cause of freedom by
celebrating the number 45. It was not uncommon for people to buy drinks
for their 45 closest friends. It was not uncommon to write the number
45 on the side of buildings, taverns, saloons. It was not uncommon for
the number 45 to be raised in connection with cries for the cause of
liberty. So the number 45, the name John Wilkes, and the cause of
liberty all became wrapped up into one.
It was against this backdrop that the United States was becoming its
own Nation. When it did become its own Nation, when we adopted a
Constitution, and when we decided shortly thereafter to adopt a Bill of
Rights, one of the very first amendments we adopted was the Fourth
Amendment. The Fourth Amendment responded to this particular call for
freedom by guaranteeing that in the United States we would not have
general warrants. The Fourth Amendment makes that clear. It contains a
particularity requirement stating that any persons or things subject to
search warrants would have to be described with particularity. The
persons would have to be identified or at least an area or a set of
objects would have to be identified rather than the government just
saying: Go after anyone and everyone who might be connected with this
offense or with this series of events.
At that time, there were no such things as telephones. Those would
not come along for a very long time. They certainly did not imagine,
could not have imagined, the types of communications devices we have
today. Nevertheless, the principles that they embraced at the time are
still valid today, and they are still relevant today. The principles
embodied in the Fourth Amendment are still very much applicable today.
The freedom we embraced then is still embraced today by the American
people, who, when they become aware of it, tend to be offended by the
notion that the NSA can go out and get an order that requires the
providers of telephone services to just give up all of their data, give
up all of their calling records, to give those over to a government
agency that will then put them into a database and keep track of where
everyone's telephone calls have gone.
The idea behind this program is to build and maintain a database
storing information regarding each call you have made and each call
that has been made to you, what time each call occurred, and how long
it lasted. This is an extraordinary amount of information, information
that, while perhaps relatively innocuous in small pieces, when put
together in a single database--one that includes potentially more than
300 million Americans, one that goes back 5 years at a time--can
[[Page S3134]]
be used or could easily be abused in such a way that would allow the
government to paint a painfully clear portrait, a silhouette of every
American. Some researchers have suggested, for example, that through
metadata alone, it could be ascertained how old you are, what your
political views are, your religious affiliation, what activities you
engage in, the condition of your health, and all other kinds of
personal information.
One of the reasons this is distressing is, that, unlike a program
that would involve listening to the content of your telephone calls--
which, of course, is not at issue with respect to this program--all of
this can be done with a high degree of automation, such that those
intent on abuses could do so with relative ease, with the type of ease
that they would not have access to absent this type of automation.
Sometimes people are inclined to ask me: Where is the evidence that
this particular program is being abused? What can you point to that
suggests anyone has used this for a nefarious political purpose or for
some other illegitimate purpose not connected with protecting American
national security?
I have a few responses to them. First and foremost, we do need to
look to the Constitution, both to the letter and spirit of that
founding document that has fostered the development of the greatest
civilization the world has ever known. It isn't important for its own
sake simply because we have taken an oath to uphold, protect, and
defend it as Members of this body. The Constitution is an end unto
itself. It is important that we follow it regardless of whether we can
point to some particular respect in which this particular program has
been abused.
Secondly, even if we assume, even if we stipulate for purposes of
this discussion that no one within the NSA is currently abusing this
program for nefarious political purposes or otherwise, even if we
assume no one within the NSA currently is even capable of abusing or
has any inclination to abuse this program at any point in the future, I
would ask the question: Can we say we are certain that will always be
the case? Who is to say what might happen 1 year from now, 2 years from
now, 5 years, 10 years or 15 years from now?
We know how these things happen. We understand something about human
nature. We understand what happens to human beings as soon as they get
a little bit of power. They tend to abuse it.
Remember the investigation brought about by Senator Frank Church in
the 1970s. Senator Frank Church, when he investigated wiretap abuses--
abuses of technology that was still only a few decades old back in the
1970s when this occurred--the Church Committee concluded, among other
things, that every Presidential administration from FDR through Richard
Nixon had abused our Nation's investigative and counterintelligence
agencies for partisan, political purposes to engage in political
espionage. Every single one of those administrations from FDR to Nixon
had done that.
In that sense, we have seen this movie before. We know how it ends.
We know that even though the people working at the NSA today might well
have only the noblest of intentions, over time these kinds of programs
can be abused, and we know a lot of people in America understand the
potential for this abuse.
Thirdly, I have to point out that the NSA currently is collecting
metadata only with respect to phone calls. But under the same reading
of section 215 of the PATRIOT Act that the NSA has used to collect this
metadata--a reading with which I disagree and a reading with which the
U.S. Court of Appeals for the Second Circuit disagreed in its
thoughtful, well-written opinion just about 2 weeks ago--even though
the NSA is currently collecting only telephone call metadata right now,
there is nothing about the way the NSA reads section 215 of the PATRIOT
Act--which is incorrect, by the way, an incorrect reading--but there is
nothing about that reading that would limit the NSA to collecting only
metadata related to telephone calls.
So who is to say the NSA might decide tomorrow or next year or a
couple of years from now--if we reauthorize this--or at some point down
the road during a period of reauthorization, that the NSA will not
decide at that point to begin collecting other types of metadata, not
just telephone call metadata but perhaps credit card metadata, metadata
regarding people who reserve hotels online, regarding emails that
people send or receive, regarding Web sites that people visit online,
regarding online transactions that occur. Those are all different types
of metadata.
Now, again, I disagree with the NSA's legal interpretation of section
215 of the PATRIOT Act. I think they are abusing it. I think they are
misusing it. I think they have dangerously misconstrued it, just as the
U.S. Court of Appeals for the Second Circuit concluded a few weeks ago.
But this is their interpretation. And if we reauthorize this, are we
not reauthorizing, in some respects, or at least enabling them to
continue this? I don't think we are validating or ratifying what they
are doing.
Their interpretation of it is still wrong, but we are enabling them
to engage in a continued ongoing practice of abuse of the plain
language of section 215, which requires that anything they collect be
relevant to an investigation.
Well, their interpretation of ``relevant to the investigation'' is we
might at some point in the future deem this material relevant to what
we might at some point in the future be investigating. That cannot
plausibly, under any interpretation of the word ``relevance,'' be
acceptable. And it was on that basis that the Second Circuit rejected
the NSA's interpretation.
In any event, that same interpretation will still be the NSA's
interpretation if, in fact, we reauthorize this.
There is nothing stopping the NSA from using that same
interpretation--mistaken interpretation but an interpretation
nonetheless--of section 215 in a way that would allow--there is nothing
stopping them from using that same misinterpretation of a statutory
language for the purposes of gathering metadata on credit card usage,
on online activity, on emails sent online and received. From that you
can discern even more information about a person's profile. You can
come up with a very frighteningly accurate picture of anyone based on
that kind of metadata, just as you can now, but that would give them an
even bigger picture. That would be an even greater affront to the
privacy interests of the American people.
All of this relates back to the idea that the government shouldn't be
able to go out and say: Here is a court order. We want all of your
information. We want all of your data. Just give it to us because we
might want it later.
This type of dragnet operation is incompatible with our legal system.
It is incompatible with hundreds of years of Anglo-American legal
precedence. It is incompatible with the spirit, if not the letter, of
the U.S. Constitution, and it is not something we should embrace.
At the end of the day, we need to do something with this program. Not
everyone in this Chamber agrees on what that something is, and not
everyone in this Chamber who believes we need reform or who believes
the NSA's program of bulk metadata collection is wrong agrees on the
same solution. But the way for us to get to a solution must involve
open, transparent debate and discussion, and it absolutely should
involve an open amendment process.
So if there are those who have concerns with the legislation passed
by the House of Representatives last week by a vote of 338 to 88, I
welcome their input. I welcome any amendments they may have. I welcome
the opportunity to make the bill better, to make it more compatible
with this or that interest, to make it do a better job of balancing the
privacy and national security interests at stake.
But we have to have that debate and discussion, and we have to have
that process in order for the American people to be well represented
and well served. We cannot continue to function by cliff.
Government-by-cliff is a recipe for disaster. Government-by-cliff
results in a take-it-or-leave-it, one-size-fits-all binary set of
choices that disserve the American people. Government-by-cliff all too
frequently results in temporary extensions rather than some type of
lasting legislative solution that can help the American people feel
more comfortable that they are being well represented.
So I would ask my distinguished colleague, my friend the junior
Senator
[[Page S3135]]
from Kentucky, if there are not ways in which we could come to an
agreement, if we as a body couldn't come to an agreement on how best to
resolve this difficult circumstance, if the cause of protecting
American national security is irreconcilably in conflict with the
privacy interests that are part of the Fourth Amendment and, most
importantly, I would ask my friend from Kentucky if privacy isn't, in
fact, part of our security rather than being in conflict with it.
I would be interested in any thoughts my friend from Kentucky might
have on that issue.
Mr. PAUL. Mr. President, the Senator from Utah makes a very good
point and also asks some very good questions.
In saying that we tend to work against headlines here, I often say we
lurch from deadline to deadline, and the American people wonder what
the heck we are doing in between the deadlines.
The PATRIOT Act has been due to expire for 3 years. It is on a sunset
of 3 years. We knew 3 years ago that this debate was coming. There
should be plenty of time and, I think, adequate time to discuss issues
that affect the Bill of Rights, that affect rights that were encoded
into our Constitution from the very beginning.
So I think without question the issue is of great importance and then
we should debate it. But too often budgetary measures--or maybe this
measure--get so crowded up against deadlines that people are like: Oh,
we don't have time for amendments. The problem is, if you don't have
amendments, you are not really having debate.
I think the Senator characterized very well that we both agree the
bulk collection of data is wrong. We think that goes against the spirit
and the letter of the Constitution.
However, at least half of us that we would encounter in this body
don't even agree with that supposition. They believe, as many of them
have pointed out, we are not collecting enough, and they don't care how
we collect it, let's just collect more.
So we are on different sides of opinion, two groups here. And then
some of us aren't exactly on the same page as to the solution, but we
agree on the problem. I think you could work through to the solution if
you all agreed it is a problem and that the American people think we
have gone too far.
I think that is what the purpose of some of this debate today is,
hopefully to draw in the American public and have them call their
legislators and say: Enough is enough. You shouldn't be collecting my
data unless you suspect me of a crime, unless my name is on the
warrant. Unless you had a judge sign the warrant for me, you shouldn't
be collecting all the data of all Americans all the time.
I think part of our problem is the deadlines, and part of the reason
I am here today is that I have been working on five or six amendments
for a year now with Senator Wyden, so we have bipartisan support for a
series of amendments. These are what we think would be best to fix this
problem. Certainly, when we have had 3 years to wait for this moment,
we ought to have enough time to vote on five or six amendments.
So that is really, I think, what we are asking of the leadership of
both sides--is permission. Because, really, in this body, everybody has
to agree to let you vote on something or no votes happen.
We have done a better job this year. We are voting on more
amendments, but this is still one of those occasions where we are
butting up against a deadline. My fear is that without extraordinary
measures--which I am hopefully trying to do today--that we may not get
a vote on amendments and we may not get adequate time to debate this, I
think, important issue.
Some of the amendments we have been interested in presenting as a way
to fix this--so first you have to agree with what the problem is. We
think the problem is that the government shouldn't collect all of your
phone records all of the time without putting your name on a warrant,
without telling a judge that they have suspicion that you have
committed a crime. We think that collecting everyone's phone records
all of the time without suspicion is sort of like a general warrant. It
is like a writ of assistance, it is like what James Otis fought
against, it is like what John Adams said was the spark that led to the
American Revolution.
So we think the American people also believe this, that the American
people believe their records shouldn't be collected in bulk, that there
should not be this enormous gathering of our records.
What we need to do is get to a consensus where everybody agrees that
is a problem. But the body is still divided. About half of the Senate
believes we should collect more records, that we are not invading your
privacy enough, that privacy doesn't matter--that, by golly, let the
government collect all of your records to be safe.
Well, when the privacy commission looked at this, when Senator Wyden
looked at this, and when other people who have the intimate knowledge
looked at this, their conclusion was that the bulk collection of our
records, this invasion of privacy, isn't even working, that we aren't
capturing terrorists we wouldn't have caught otherwise by this
information. So the practical argument that says we will give up our
privacy to keep us safe, even that argument is not a valid argument.
But we have been looking at some of the possible solutions--and I see
the Senator from New Mexico and would be pleased to entertain a
question if he has a question.
(Mr. LEE assumed the Chair.)
Mr. HEINRICH. Yes. I thank my friend from Kentucky and ask him if he
would yield for a question without losing his right to the floor.
I want to start out by prefacing this for a few minutes, from my
limited experience--just over the past a little over 2 years, and I am
on the Intelligence Committee now--by saying there is simply no
question that our Nation's intelligence professionals are incredibly
dedicated, patriotic men and women who make real sacrifices to keep our
country safe and free and, in that, they should be able to do their
job, secure in the knowledge that their agencies have the confidence of
the American people. And Congress--those of us here--needs to preserve
the ability of those agencies to collect information that is truly
necessary to guard against real threats to our national security.
The Framers of the Constitution, as my colleague from Kentucky knows,
declared that government officials had no power--no power--to seize the
records of individual Americans without evidence of wrongdoing. And it
was so important that they literally enshrined and embedded this
principle in the Fourth Amendment to the Constitution.
In my view, the bulk collection of Americans' private telephone
records by the NSA in this program clearly violates the spirit--if not
the letter--of the intentions of the Framers here.
Just 6 months after my first Senate intelligence briefing, former
National Security Agency contractor Edward Snowden leaked documents
that exposed the NSA's massive collection of Americans' cell phone and
Internet data. And as my friend from Kentucky said, not just a few
Americans but literally millions of innocent Americans were caught up
in what is effectively a dragnet program.
It was made clear to the public that the government had convinced the
FISA Court to accept a sweeping reinterpretation of section 215 of the
PATRIOT Act, which ignited, in my view, a very necessary and long
overdue public conversation about the trade-offs made by our government
between protecting our Nation and respecting our constitutional
liberties.
I think well-intentioned leaders had, during the previous decade,
come down decidedly on the side of national security with a willingness
to sacrifice privacy protections in the process. And what became
obvious was that because of our continued lack of knowledge of Al Qaeda
and other terrorist organizations, some within our government believed
we still needed to collect every scrap of information available in
order to ensure that, should we ever need it, we could query this
information and track down U.S.-based threats. In doing so, the
government ended up collecting billions of call data records, linked in
case after case after case not to terrorists but to innocent Americans.
[[Page S3136]]
Wisconsin Republican Congressman Jim Sensenbrenner, who I served with
in the House of Representatives, who was one of the authors of the
original underlying legislation--the PATRIOT Act itself--said a couple
of years ago: ``The PATRIOT Act never would have passed . . . had there
been any inclination at all that it would have authorized bulk
collections.''
As this debate increasingly moved to the public sphere, I joined my
colleagues on the Select Committee on Intelligence--Senator Wyden, who
was just here on the floor a few minutes ago, and former Senator Mark
Udall--in pressing the NSA and the Director of National Intelligence
for some clear examples in which the bulk information collected under
this metadata program, under section 215, was uniquely responsible for
the capture of a terrorist or the thwarting of a terrorist plot. They
could not provide any--not a single solitary example--nor could they
make a case for why the government had to hold the data itself and why
for so long.
Thankfully, a review panel set up by President Obama agreed with us
and recommended that the government end its bulk collection of
telephone metadata.
I will admit, however--and my friend from Kentucky has brought this
up on several occasions already--that I am incredibly disappointed that
the President hasn't simply used his existing authority to unilaterally
roll back some of the unnecessary blanket metadata collection. Some
have claimed this inaction is evidence that the President secretly
supports maintaining the current program as is. That, however, is
nonsense.
The President has asked Congress to give him additional authorities
so that he can carry out the program in an effective manner, and the
USA Freedom Act seeks to do just that.
The Republican-led House of Representatives last week passed that
bill--the USA Freedom Act--by a vote of 338 to 88, with large
majorities from both parties. At a time when everyone believes we agree
on nothing, large majorities of Republicans and Democrats supported
that piece of legislation.
Further, the Second Circuit Court of Appeals ruling that the NSA is
violating the law by collecting millions of Americans' phone records is
even more proof that we have gone too far and need to recalibrate and,
in my view, refocus our efforts. Why on Earth, I would ask, would we
extend a law that this court has found to be illegal?
Given the overwhelming evidence that the current bulk collection
program is not only unnecessary but also illegal, I think we have
reached a critical turning point, and I want to thank my colleague from
Kentucky for coming to the floor to force us all to have this
conversation. We have kicked the can down the road too many times on
this particular issue, and I believe it is time to finally end the bulk
collection of these phone records and instead focus more narrowly on
the records of actual terrorists.
Americans value their independence. I know this is especially true in
my home State of New Mexico. They cherish their right to privacy that
is guaranteed by our Constitution. But some of our colleagues still
think it is OK for the government to collect and hold millions of
private records from innocent citizens and to search those records at
will.
The majority leader is asking us to act quickly to reauthorize. I
believe it would be a grave mistake to reauthorize the existing PATRIOT
Act, and I join my colleagues in blocking any extension of the law that
does not include major reforms, including an end to bulk collection.
I think we can and we must balance government's need to keep our
Nation safe with its sacred duty to protect our constitutionally
guaranteed liberties. And I guess this brings me to my question for the
Senator from Kentucky.
How on Earth can you possibly square what the Fourth Amendment says,
in terms of our papers and our ability to control our own effects
without a warrant, with the government's bulk collection of phone
records of law-abiding American citizens?
Mr. PAUL. Mr. President, I thank the Senator from New Mexico for that
great question.
I think there is no way we can square this bulk collection with the
Fourth Amendment. I think part of the problem, though, is that we, over
a long period of time, diminished the protections of records held by
third parties. And I think one of the debates we need to get hopefully
to the Supreme Court sometime soon is whether you give up your privacy
interest in records that are held by third parties.
I think there will come a time that your papers, once held in your
house--there are no papers in your house. There may not be paper. But
there is still the concept of records. Records were traditionally on
paper, and they were traditionally in your house. But now your most
private papers are held digitally by your phone, and then by the people
who are in charge of the different organizations such as phone, email,
et cetera.
I think there has to be Fourth Amendment protection of these. Those
who look at the court cases, and go back to probably the last important
case, the Maryland v. Smith case, often say there is no Fourth
Amendment protection at all for these records. In fact, the government
will tell you they can do whatever they want with email, with text, and
with all of these things. And I am not convinced they are not using
other programs, such as this Executive order program, to actually
collect many other kinds of metadata other than phone calls.
So I am very worried about it. I think we need help from the courts.
But we need help from the legislative body to represent the will of the
people. And I think the will of the people is very clear that the
majority of people think we have gone too far and that we need to stop
this indiscriminate vacuuming up of all Americans' phone records
regardless of whether there is suspicion.
Mr. HEINRICH. Mr. President, I would ask the Senator from Kentucky an
additional question. I found it very helpful before I came to the floor
today--and I want to thank my colleague again for raising these
critical issues--to go back and read the Fourth Amendment, and I
thought it would be worthwhile just to briefly read that once again
here on the floor because I think it really puts you in the mind of
some of the greatest Americans who ever lived.
Our Framers wrote a constitution that has survived for well over 200
years now. It has survived Republicans. It has survived Democrats. It
has survived political parties that came and went, and it has survived
great conflicts time and again.
The Fourth Amendment says: ``The right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no Warrants shall
issue, but upon probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the persons or
things to be seized.''
I would ask my friend from Kentucky his views on the resilience of
this constitutional document and how he can possibly read the actual
text of this Fourth Amendment without realizing that those Framers
really meant for this to apply into the future to things that we hadn't
foreseen yet but using the broadest terminology available, such as
words like effects and papers?
I yield the floor and thank the Senator from Kentucky once again.
This is one of those issues that unite people on the left and the
right, Republicans and Democrats, who care deeply about our national
security but also care about our constitutional liberties. I think the
time to fix this is upon us. And without shining a light on this, we
certainly are not going to be able to make the progress we need. We
have an opportunity here, and we should seize it.
I yield the floor to the Senator from Kentucky.
Mr. PAUL. Mr. President, I thank the Senator from New Mexico for
coming down and for being a great supporter of the Fourth Amendment.
One of the things I think is interesting is that in our current
culture we seem to devalue the Fourth Amendment. You go to--at least on
our side--all kinds of groupings and gatherings, and there is a lot of
talk of the Second Amendment, talk of the First Amendment, but there
hasn't been so much of the Fourth Amendment until we got to this point
with the collection of data seeming to be running amok.
One of our Founding Fathers was George Mason. He was considered to be
[[Page S3137]]
an anti-Federalist. He was a guy who really stood on principle, but
also he was a guy who had the audacity to actually not sign the
Constitution, even though he was asked and he was there and could have.
On September 17, 1787, he refused to sign the Constitution and
returned to his native State as an outspoken opponent of the
ratification contest. His objection to the proposed Constitution was
that it lacked a declaration of rights. Mason felt that a declaration
of rights--or what we call a bill of rights--was a necessity in order
to curb Federal overreach.
Mason, though, was also famous for being an author of the Virginia
Declaration of Rights, which was written a decade or so before our
Constitution and upon which many things were based. He wrote in the
first paragraph of the U.S. Declaration of Independence something
similar to what we hear in the Declaration of Independence:
That all men are by nature equally free and independent,
and have certain inherent rights, of which, when they enter
into a state of society, they cannot by any compact deprive
or divest their posterity; namely, the enjoyment of life and
liberty, with the means of acquiring and possessing property,
and pursuing and obtaining happiness and safety.
In the Declaration of Rights, which comes from 1776, for Virginia, he
also was instrumental in including article IX. Article IX is basically
the precursor to the Fourth Amendment. In it, he wrote:
That general warrants, whereby any officer or messenger may
be commanded to search suspected places without evidence of a
fact committed, or to seize any person or persons not named,
or whose offence is not particularly described and supported
by evidence, are grievous and oppressive, and ought not to be
granted.
So from the very beginning, the Fourth Amendment was a big deal. It
was a big enough deal that the fact that it wasn't included caused
George Mason to say he couldn't sign the Constitution. It was a big
enough deal that this debate went on for a while, and finally the
resolution of getting the Constitution included that there would
ultimately be a Bill of Rights. Thomas Jefferson wrote about the Bill
of Rights. He said:
A bill of rights is what the people are entitled to against
every government on earth, general or particular, and what no
just government should refuse, or rest on inferences.
I like the way he put it: A Bill of Rights is what the people are
entitled to against every government. It is a protection.
Jefferson also described the Constitution as the chains of the
Constitution. The chains were to bind government and to prevent
government from abusing its authority.
When we have adhered to this, when we paid strict attention to it, we
have maximized our freedom. When we have let our guard down, when we
have allowed our guard to stray away, when we have allowed the
government to usurp authority to gain and grab and take more power, it
has been at the expense of freedom.
I think we can be safe and have our freedom as well. I think we can
obey the Constitution and catch terrorists at the same time. I think,
in fact, frankly--strictly from a practical point of view--I think we
gain more information by using the Constitution. By having less
indiscriminate collection of data and by having more collection of
discriminating data--data that is based on suspicion, data that is
based on tips, data that is based on human intelligence, data that we
can focus all of our human energy on--I think we actually will catch
more terrorists. I think there has been instance after instance after
instance where we did have information on terrorists and we failed to
act, perhaps because we are spending so much time and so much energy on
the indiscriminate collection of data.
William Brennan is one of our famous Justices, and he said of the
Framers:
The Framers of the Bill of Rights did not purport to
``create'' rights. Rather, they designed the Bill of Rights
to prohibit our Government from infringing rights and
liberties presumed to be preexisting.
We didn't create the rights. Government didn't create your rights.
Your rights come naturally to you. For those of us who believe in a
Creator, they come from our Creator. But they are important to protect.
They should be protected against all forms of even majority. It is why
some of us think it very important to say that we are a Republic, we
are not a democracy; that no majority should be able to take away our
rights. That is why this is important. I think these questions
ultimately get to the Supreme Court. Because no matter what the
majority says here, no matter what the majority of the legislature
says, the Bill of Rights lists and codifies rights that cannot and
should not be taken away by a majority: the rights that we have to be
left alone--as Justice Brandeis said, the most cherished of rights, the
right to be left alone. But this debate is a long and ongoing debate.
For nearly 100 years, from the Olmstead case in 1928 to the present, we
have had a discussion and a struggle and a controversy over what parts
of our conversations are to be protected and what parts are not to be
protected.
I think a lot of our problems really originated with going the wrong
way in 1928 with the Olmstead case because we went for a long period of
time--we went for two generations thinking that your phone calls were
not private and that your phone calls were not protected by the Fourth
Amendment. Then, we finally got to the 1960s, and we reversed that and
we said your conversations are to be protected. But within a decade we
made the wrong decision again and said that your records are not to be
protected--that your Fourth Amendment, your records once held by the
phone company, aren't to be protected. I think that was a mistake.
I think it is also a mistake to think we are literally talking about
paper in your house because there is quickly coming a time in which
technology will be such that there will be no papers. Papers will be
another word for ``records,'' but your records will not be kept in your
house.
They already aren't. There was a discussion of this in whether we can
search a person's individual phone, and the Court did rule I think in
an accurate way. The Court and one of the Justices said that,
basically, the information found on your phone is more personal and
more extensive than probably any papers that were ever in any home in a
time before electronics. So we are going to have to catch up to
electronics, we are going to have to catch up to the digital age, and
we are going to have to decide does the individual maintain a privacy
interest and/or a property interest.
I, frankly, think that when the phone company holds my records, that
they are partly mine; that there is a property interest and a privacy
interest I haven't relinquished. Unless I have given explicit
permission, I don't think I have given up my privacy. In fact, many
times it is the opposite.
Many times what we have actually said is, when I agree to do banking
with you or I agree to have you hold my telephone calls or I agree to
do Internet searches with you, I have an explicit agreement often. The
agreement is so explicit to defend my privacy that when they don't,
they are actually fearful of being sued. And so all of this craziness,
all of this overreach, all of this loss of our privacy comes with a
little additional caveat that is written into all the laws and
everybody is clamoring for and it is what they want now--liability
protection. They want to be able to violate their privacy agreement. So
we give them liability protection. They don't want to be sued, but they
realize they are violating and could be accused of violating our
privacy agreement.
So as much as I hate and despise frivolous lawsuits, the threat of
suing somebody causes them to obey their contract. If they don't have
the threat--if you say: Well, we are going to have contracts, but we
are not going to enforce them with the threat of a lawsuit, then
contracts become meaningless. So it is really important that as we move
forward, we try to say to people the privacy agreement you signed is a
real document, it is a real contract, and it should be protected.
When referring to the Bill of Rights, Gen. Smedley Butler, who was a
two-time Medal of Honor winner and a Brevet Medal of Honor winner,
said:
There are only two things we should fight for. One is the
defense of our homes and the other is the Bill of Rights.
When I have talked to the young men and women who have fought bravely
for our country--young men and women who have lost limbs, families of
those who have lost lives--that is what
[[Page S3138]]
I hear from every one of them. I hear from them that they were fighting
to defend the Bill of Rights. They were fighting to defend our
Constitution.
What saddens me is that while they were fighting for our
Constitution, while they were fighting for our Bill of Rights, their
legislators weren't fighting for the Bill of Rights. Their legislators
were turning the other way. Their legislators were so fearful of attack
that they gave up on the Bill of Rights and said: Here is my liberty,
just give me security. This is a longstanding debate. Franklin had it
right--those who are willing to give up their liberty may end up with
neither.
Now, some would ask: Why am I here today? What do I propose to get
out of this? Is there an end point when I will go home and be quiet and
quit talking about the Bill of Rights?
I think there could be. I think if the leadership of both parties in
the Senate would agree to have a debate on the PATRIOT Act, if they
would agree to have amendments and have votes--and I will give some
examples of some things that we think--most of these will ultimately be
introduced in all likelihood by Senator Wyden and I. I will start with
the first one. This is based upon an amendment that he and I have
worked on together. This amendment would prohibit mandates on companies
that alter their products to enable government surveillance. So this
amendment prohibits any mandates from government agencies requiring
private companies to alter their security features--their source code--
to allow the government to get into their stuff and into your lives.
This amendment would apply to computer services, hardware, software,
and electronic devices made available to the general public.
Currently, the government is requiring and sometimes telling
companies they can't even tell you this. They are requiring access to
certain products. There have been stories of them inserting malware on
Facebook, giving you access to Facebook, and then getting into your
Facebook account through the Facebook code source. I know Facebook has
objected to this and fought them on this, but our amendment would say
that the government just can't do this. The government cannot force
different social networking sites and different Internet software
cannot force them to give the government access indiscriminately.
The question would be: Can the government require things
specifically? Absolutely, yes. Present evidence to get a warrant, and
realize that when they want to make you so afraid that you give up all
your records, realize that warrants aren't hard to get. The FISA
warrants are almost without question agreed to, maybe to a fault.
Ninety-nine percent-plus of all the warrants ever requested are
granted. I think it is not too much of a step to say we should ask and
request warrants.
The second amendment we would consider putting forward, if we were
allowed to and allowed to have votes on, would replace the PATRIOT Act
extension with comprehensive surveillance reform. We would replace the
extension of expiring authorities with substantial reforms, as
originally proposed by Senators Wyden and Paul and others in the
Intelligence Oversight and Surveillance Act of 2013.
This amendment would end bulk collection and replace it with nothing.
We would close the section 702 backdoor search loophole, which allows
the government to say they are searching foreigners' records but in
reality gather up 90 percent of the records being American records and
called incidental. We would close this backdoor loophole where actually
American records are being collected, not foreign records. We would
create a constitutional advocate to argue before the FISA Court, before
the intelligence court.
The reason I think this is necessary is that the court has somewhat
become a rubberstamp for the government, and we aren't allowing any
kind of opposing arguments and we really aren't having any argument.
For example, we have loosened the standard from the constitutional
standard, which is probable cause, and we have said it is relevant. So
we get to relevance. But when you come before the court, I don't think
anybody is debating or being asked to prove whether it is relevant.
Certainly they must not because they are somehow approving the
collection of everybody's records in the United States--which I don't
know of anybody who believes the word ``relevant'' can include
everybody.
So if we had an advocate or we had someone to say this is the other
side--I think it is really important. I am not a lawyer, but I
understand they argue with each other all the time and you are supposed
to figure out the truth. You argue and advocate for your side, and then
somehow you apply the truth or people arbitrate what they think the
truth is from this discussion. If only the government argues, you can't
get even any sense or form of what truth is.
So what we would argue in our second amendment is that you actually
have an advocate that argues on that side. I would go further, though,
and say that not only do you have an advocate, you should have an
avenue for appeal.
I am with Senator Wyden. I want to protect all the people doing this.
I don't want any names revealed. I don't want any agents revealed. I
don't want to endanger the people who are risking their lives for our
country to gain intelligence. But I do think the law in general can be
debated. Senator Wyden talked about how the law doesn't need to be
secret; the operations need to be secret.
So we can protect all of that. But I think the law should be debated.
For example, the question now whether you have any privacy interest in
your third-party-held records--whether the Fourth Amendment protects
these at all, that is our constitutional question. That should not be
decided in secret, and you really can't have justice decided in secret.
The other part of our amendment would give Americans spied on by the
government standing to sue in court and end the practice of reverse
targeting, under which the government targets the communication of an
American without a warrant by targeting the non-U.S. person they speak
to. By some reports, it is even worse than that. I mentioned earlier
that an enormous amount of what the PATRIOT Act does--which is supposed
to go after foreigners--is actually being used domestically for drug
crimes.
There have been reports that the information is being gathered
through an intelligence warrant, and then they go back with the
traditional warrant after they have gotten information through a lower
standard--through a nontraditional, nonconstitutional investigation.
Then they go back, and they get the warrant after using this
information or they recreate the scenario in order to get the
information they need. Then they do not tell the judges they got the
information through the intelligence angle.
Another amendment that we would like to ask the leadership of both
sides if they would let us introduce it and if we were allowed to
debate this and have an open amendment process would be that the
warrantless crime could not be used against Americans in nonterror
criminal cases.
This was originally the way it was. This is why you have to worry
about the slippery slope. Back in the 1970s, they said: OK, we are
going to have a different standard to get foreign tariffs. Even I, who
want to keep good standards, can accept a little bit of that--a
slightly lower standard for people who do not live here and are not
American citizens and are not part of our country. It has its dangers,
but even I might be able to accept that. But what I cannot accept is
that you lower the constitutional standard. You are going to use a
terrorist warrant that has a lower procedural hurdle, and then you are
going to use it for domestic crime.
That is exactly what is going on now. We should be appalled that they
destroyed the Fourth Amendment for certain crimes and we did not do
anything about it.
Section 213 of the PATRIOT Act is called sneak-and-peek. The
government can go into your house and never tell you they were there.
They can look through all of your records. They can steal stuff. They
can replace it. They can do all kinds of things and place listening
devices--all without ever telling you.
This is in contradiction to what most people have accepted the Fourth
[[Page S3139]]
Amendment to be. But if you look at who is being convicted with section
213, 99.5 percent of the people are for drugs, for domestic crime. What
we have done is that we have taken a domestic crime and we say the
Constitution no longer applies. We basically got rid of the Fourth
Amendment for these crimes.
For about 11,000 people a year, the Constitution no longer applies to
them. We are using a lower standard. If you want to make this even
worse, think about who is being convicted of drug crimes in our
country. Three out of four people being convicted of drug crimes in our
country are Black or Brown. But if you ask who are the kids who are
using drugs, equal numbers of White and Black kids are using drugs. But
three out of four people in jail are Black or Brown. Then you find out
that not only have we messed up the war on drugs such that it has a
racial element to it, but we are now using a lower standard that is not
the Constitution, and the end result is a racial outcome.
This is an enormous problem. Related to so much of what is going on
in our country, so much of the anger you are seeing in our cities comes
from this injustice. You now have people going to jail. You have people
going to jail for 15, 20, 30 years.
There is a woman by the name of Mary Martinson from Mason County, IA.
Her mother just died recently. They let her out of prison for a couple
of hours. Her dad is getting older, and she wishes she had been there
to help her parents. She did mess up. She was a drug addict. Her
boyfriend was a drug addict. They had guns in the home. They were
selling the drugs. He was a meth addict. She was probably going to die
if she stayed on the drugs, so it was good that she got off the drugs.
She got caught. She got 15 years in prison.
You can kill somebody in Kentucky and be out on parole in 12 years.
Yet we put this woman in jail for an addiction. She had never been
convicted of any other crime. No judge in their right mind would have
ever given her 15 years--nobody would have. The judges basically are
telling the defendants and telling the press: I would never do this.
This is the wrong thing to do, but I am forced to do this. Compound
this with the fact that the war on drugs has had a racial outcome. You
put the two together and you say: Well, we are no longer obeying the
Constitution, and there is a racial outcome.
Where is the hue and cry?
Where is the President on this issue?
I have talked to the President about criminal justice. I think he
sincerely wants to help. But here is the thing. The President could
today stop this program. He could stop collecting stuff through the
sneak-and-peek. He can say we are no longer going to do the bulk
collection. Most of these things originated out of Executive order. He
could stop these any time he wanted to. We would stop it. We would say
no more spying against Americans and no more use of this information
for nonterror criminal cases.
We have another amendment that goes to the heart of what I think
should be decided by the Supreme Court. We call this the amendment that
would protect the privacy of Americans' records held by third parties.
I think that your records do retain a privacy interest. This
amendment--should the leadership agree to allow us to have amendments--
would establish a clear principle consistent with the Fourth Amendment.
As it relates to government collection, an individual's records, if
given to a third party for a specific business purpose, are as equally
secure in their person as those that remain in their possession, unless
the third party informs the individual that it intends to share the
information. This amendment affirms that the government cannot
circumvent warrant requirements by taking Americans' records from third
parties, and it protects the constitutional rights during engagement
and regular communication and commerce.
I think we had a vote on this a while back. I do not think we were
that successful. I think we got four people to vote--to say that your
records should be protected by the Fourth Amendment. Most people do not
realize this. Most people have no idea that the government's position,
and, currently, maybe the Supreme Court's position, is that you do not
have any right--Fourth Amendment right--in your records unless you have
them in your house.
I think this is something about which the more people understand and
the more people are drawn to this issue, maybe people will demand that
we have some justice here. We live in an era where ultimately no one is
going to have paper records in their house. All of your records are
going to be electronic. Because they are held and they are managed
somehow by a third party, does that really mean we have given up our
rights? The thing is that the government might say if your cell phone
is in your house, then they do. But the cell phone is connected to
someplace outside your house. Your email is being served on some server
somewhere. I see no way that it could be construed that you have given
up your right to privacy because someone else is holding the records
for you because that is the way in the digital age we have come to hold
records.
We talked a little bit earlier about trust. I think trust is
incredibly important. I do not discount that the vast majority of
people who work in our intelligence community are honest, trustworthy,
and patriotic. I think we all want the same thing. We want to protect
our country. We want to protect our loved ones. We want to honor the
memory of those who died on 9/11 by capturing and stopping the people
who would attack us. But the question is this: Can you catch more or
less, or are we more or less effective, in catching terrorists if we
use the Constitution, if we use traditional warrants?
I think, without question, if you talk to people, they will tell you
that they get a great deal more information and more specific
information by using warrants.
Let's say tomorrow we elected a President who eliminated the bulk
collection of data. Let's just say it happened. What do you think would
happen? People say: Oh, the sky would fall. We would be overrun with
jihadists. Maybe we could rule on the Constitution. Maybe we could get
warrants. The information is out there. There are warrants. If you make
the warrants specific, there is no limit to what you cannot get through
a warrant. The warrants are given the vast majority of the time.
People complain and say it would take too long; it would be
inconvenient. Make it better then. Put your judges on 24 hours a day.
Appoint 24 more judges. Put them on call all the time, and let's
do this. There is no reason why you cannot have security and liberty at
the same time.
Another amendment we have--should the leadership agree to allow us to
have amendments and to have votes and to have a debate on this--is an
amendment that would require the court to approve national security
letters. In a 3-year period between 2003 and 2006, 140,000 national
security letters were given out. National security letters are warrants
that are below the constitutional bar. They do not meet the
constitutional bar because they are not being signed by a judge. They
are being signed by the police. You got rid of one of the great
protections we had, which was the check and balance that the police
would always go to the judiciary. It was a different branch.
The judge is sitting at home, hopefully reading it in a reasoned
fashion. The judge is not in hot pursuit. The judge is not letting
their emotions--the judge was not just punched by one of the convicts.
The judge is sitting at home in a reasoned fashion trying to make a
reasonable decision. But still, the vast majority of the time warrants
are given.
If there is a policeman outside the house of an alleged rapist, and
they want to go in, they call on a cell phone. The judge almost always
says yes. It is the same for murder.
Does anybody imagine that there would be a judge in our country and
that you call and say: John Doe--we have evidence that he traveled to
Yemen last year. We have evidence that he talked to Joe Smith, and we
have evidence that he is a terrorist, and we want a warrant to tap his
phone.
Look, I am the biggest privacy advocate in the world. I will sign the
warrant immediately. I do not know of anybody that will not sign
warrants to allow searches to occur. But you have the check and balance
so it does not get out of control. What happened and what is happening
now is we let down our guard. We have no checks and balances. So what
does the government do
[[Page S3140]]
when you are not watching? If you look away, the government will abuse
their power. Lord Acton said: ``Power corrupts, and absolute power
corrupts absolutely.'' The corollary to that would be: When you are not
watching, power grows exponentially.
They will do whatever they can get away with. They will do it in the
name of patriotism. Actually, I do not even question their motives.
They believe themselves to be patriotic, but they think we have to do
anything it takes--no matter whether it contravenes the Constitution or
contravenes the Bill of Rights. The people who do this--their motives
are good, but they are confused in a sense, and they do not fully
comprehend what we are giving up in the process.
This amendment would require judges to sign national security
letters. It would make them more like warrants. In practice, national
security letters have become warrants written by law enforcement
without prior court review and approval, granting them almost
unfettered access to individual email and phone communication data, as
well as consumer information such as bank and credit records.
Those subjected to the national security letters must also obey a gag
order. Not only does the Government come to you with a less than
constitutional permit or a less than constitutional warrant, but they
then tell you that you cannot talk about it. You may go to jail for 5
years if you tell somebody you had a warrant served on you.
This amendment would require that a government obtain approvals from
a court prior to issuing an NSL to a private entity, thus forcing them
to demonstrate a clear need for information as part of an
investigation.
Amendment 6 would create a new channel for legal appeals for those
subjected to government surveillance orders. This amendment would
empower individuals or companies, ordered by the government to hand
over information about users or customers, to make constitutional
challenges that would be in order in the U.S. court of appeals.
My understanding right now is that it is very difficult to appeal a
FISA order. They are secret. You are not allowed to be in the court, so
you are not allowed to participate in the process. I think, also, you
can get outside of FISA by appealing, but I think you have to ask for
something that is called a writ of certiorari. It is a special
condition, and it is not so automatic. My understanding is that the
court will grant these things, but they do not occur very often. They
are an extraordinary thing.
We would like to make it a little bit more of a facility of getting
to a normal appeal--the way a normal appeal would occur. We have been
pushing to allow that there would be more of an automatic sort of
appeal here.
One of the other amendments would say there is no liability immunity
for companies that break their agreements with users. Like I said,
while I am not in favor of lawsuits and I do not like the idea of
frivolous lawsuits, I think if you do not protect the contract and if
you have a privacy agreement that says they are not going to share your
information with anybody, the only way they will protect it is if there
is the threat that they could be sued for not protecting it. I think
the contracts become not worth the paper or the click ``I agree to
this'' and become completely worthless if the companies are told they
can go around it. The companies have all specifically requested this
because I think they fear that every day the government is requesting
them to breach the privacy contract. So in order to enable the privacy
contract, I think we have to get to a point where people can sue if
their privacy is violated.
I think there can be a mixture of opinions on what Snowden did. I
think we have to have secrecy and there has to be laws against
revealing secrets, so I can't say we should have everybody revealing
secrets. At the same time, I think the law says that those who are
reporting to Congress should tell the truth.
So we have the intelligence director lying to us and saying the
program doesn't exist, and then we have someone committing civil
disobedience. When you commit civil disobedience, it isn't that we
change the law and say it is OK. What we do is say: You broke the law,
and maybe you did it for a higher purpose, but it doesn't mean we will
get rid of all punishment for things like this. I think there is one
way we can modify it.
Snowden was a contractor, and we don't have very good rules for
whistleblowers who are contractors. I would extend the whistleblower
statute to people who want to come in and want to tell an authority, an
investigator general or somebody, if they want to reveal that they
think something is being done illegally.
For example, if Snowden knew that Clapper was lying, a felony has
been committed. I would think that somebody who has evidence of a
felony and tells the investigator general, ``Look, I have seen this,
and I have seen that they are collecting all the records of every
American,'' and he says they are not, then he has committed perjury and
a felony, and there ought to be some sort of whistleblower statute for
that. What we do in one of our amendments is to allow whistleblowers to
be contractors as well.
One of the things that has been going on--even predating the PATRIOT
Act and goes back to probably the 1980s and 1990s--is something called
suspicious activity reports. These are now being done, I believe, by
the millions. At one point I looked at it, and 5 million of these had
been filed. Every year, hundreds of thousands of these are being filed,
and if the banks don't file them, the banks could have their licenses
taken from them or there could be $100,000 fines issued to banks.
What we would like to do is to make a suspicious activity report
based on suspicion, not just based on a transaction. It would make it
more like a warrant where a judge would actually review it and see if
there is suspicion to be reporting this activity instead of just
reporting activity based on the way people do their transactions.
The problem has been that we now have the IRS confiscating your
money, your bank account, based on the way you do your transactions. It
is not based on a conviction; it is based on, I guess, the presumption
that you are guilty until you can prove yourself innocent. This is also
going on with civil asset forfeiture. It is intertwined with records,
and as we allow the government to collect our records in an
unconstitutional manner, we have to be very careful that then those
records are then being used with the presumption of guilt, not
innocence.
I have a great deal of questions about Executive Order 12333. John
Napier Tye was with the State Department and oversaw some of the
freedom of the Internet and government surveillance, and he put out an
op-ed that shows a significant concern as far as whether this Executive
order may be as big as bulk collection.
I spoke with one of the founders of one of America's larger Internet
companies recently, and he told me that not only is he worried about
bulk collection, but he is worried that bulk collection might be
smaller--the collection of all the phone data might be smaller than the
backdoor collection through 702 and the backdoor collection through the
government forcing companies to allow them into their software.
Our concern is that we need to look more at the Executive order. I
think it is being done in secret, but once again, an evaluation as to
whether a law is constitutional or whether a law overstates its purpose
should be done in the open.
I see the Senator from Montana, and I will be happy to entertain a
question without losing the floor.
Mr. DAINES. Will the Senator from Kentucky yield for a question
without losing his right to the floor?
Mr. PAUL. Mr. President, I will yield to the Senator from Montana.
Mr. DAINES. I thank my colleague for raising this important issue on
the Senate floor today. It wasn't all that long ago that I served as a
House Member. I served one term in the House and then came over to the
Senate this year. I came over to the Senate floor, and I stood in
support of my colleague's efforts to protect the American civil
liberties and ensure drones are not being used to target American
citizens on our own soil.
In fact, I am grateful to see that in the Senate Chamber today, we
have five House Members who are here standing with the Senator from
Kentucky as he makes his very important point which relates to our
Constitution and our freedom.
[[Page S3141]]
Well, 2 years later, we are here again, and the threats to America's
civil liberties and constitutional freedoms remain ever present.
As my colleague from Kentucky is well aware, I spent more than 12
years in the technology sector before being elected to Congress. I know
firsthand the power that Big Data holds. I also know the great risks
that arise when that power is abused.
There is a clear and direct threat to Americans' civil liberties that
comes from the mass collection of our personal information in our phone
records. I, like so many Montanans, am deeply concerned about the NSA's
bulk metadata collection program and its impact on our constitutional
rights. In fact, just last night, I hosted a telephone townhall meeting
with thousands of Montanans, and one of the issues I heard most about
was the NSA's bulk data collection program and when is Congress finally
going to put a stop to it. In fact, this is one of the issues I hear
most about from my fellow Montanans.
I brought down just a few of the thousands of letters I received from
Montanans on the NSA's dangerous bulk metadata program. For example, I
have a letter from Adam, who lives in Missoula. Adam writes:
I'm writing to ask you to allow Section 215 of the PATRIOT
Act to expire on June 1st of this year. While it is only one
provision of the larger problem...it would at least begin to
curtail the surveillance of Americans.
As Americans we should be free to communicate without the
threat of the government monitoring those communications.
Wanting to keep your life private does not mean you have
something to hide--only that your life isn't any of the
government's business as long as you are not infringing on
the liberty of others.
At the end of the day, giving up our liberties because of
the threat of terrorism truly is the definition of terrorism
winning. To be free inherently means a person also incurs
risks.
Even though he was speaking about taxes, I believe Benjamin
Franklin would agree: ``Those who would give up essential
Liberty, to purchase a little temporary Safety, deserve
neither Liberty nor Safety.''
Jes from my hometown of Bozeman, MT, wrote:
I am writing to you as your constituent.
NSA spying needs a comprehensive overhaul. But in the
meantime, I urge you to show that you care about the
Constitution by voting against reauthorization of Section 215
of the USA PATRIOT Act. Section 215 has been used to invade
the privacy of millions of people.
Although some in Congress and the NSA have argued that
collecting call detail records (``metadata'') is not privacy
invasion, the information collected by the government is not
just metadata--it paints an intimate portrait of the lives of
millions of Americans.
What's more, the collection of call detail records isn't
even necessary to keep us safe.
The President, the Privacy and Civil Liberties Oversight
Board and the President's Review Group have all admitted that
collection of call detail records is not necessary.
PCLOB [Privacy and Civil Liberties Oversight Board] went so
far as to note that it could not identify a single time in
which bulk collection under Section 215 made a concrete
difference in the outcome of a counterterrorism
investigation.
That's why I urge you to support reform by committing to a
no vote on reauthorization of Section 215.
A vote against reauthorization is a vote for the
Constitution. Thank you for opposing unconstitutional
surveillance and for supporting a free and secure Internet.
Montanans are right to be concerned. This program is a direct threat
to our constitutional rights. It has jeopardized our civil liberties
with little proven effectiveness, and I am the son of a U.S. marine.
Several weeks ago, I was with Leader McConnell and other Senators.
When we went to Israel, we met with Prime Minister Netanyahu. When we
went to Jordan, we met with King Abdallah. When we went to Iraq, we met
with Prime Minister al-Abadi. When we were both in Baghdad, we went up
to Erbil and met with the leaders of the Kurds, including Mr. Barzani.
We then went to Afghanistan. We were in Kabul, and we were in
Jalalabad. We met with President Ghani. We heard directly from the
leaders in the Middle East, we heard directly from our U.S. military,
and we heard directly from U.S. intelligence about what is going on in
the Middle East.
As the father of four and someone who strongly believes in a strong
national defense and the importance of protecting our homeland, I weigh
these issues very deeply. These are heavy issues we must look at as we
want to ensure we protect the homeland and, just as important, protect
the Constitution and the constitutional rights of the American people.
As my colleague is likely aware, a 2014 report from the Privacy and
Civil Liberties Oversight Board, which is a nonpartisan, independent
privacy board, found that the NSA's bulk data collection program said
that it ``contributed only minimal value when combating terrorism
beyond what the government already achieves through . . . other
alternative means.''
Like the New York-based Second Circuit U.S. Court of Appeals recently
unanimously confirmed, this oversight board found that section 215 of
the PATRIOT Act does not provide authority for the NSA's bulk metadata
collection program. In fact, the report states:
Under the Section 215 bulk telephone records collection
program, the NSA acquires a massive number of calling records
from telephone companies each 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.
It is illegal, it is an overreach of power, and it is a direct threat
to our First and Fourth Amendment rights.
In fact, the report goes on to conclude:
The program lacks a viable legal foundation under Section
215, implicates constitutional concerns under 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 stand here today with the people of Montana. I stand here today
with my colleague from Kentucky. I stand here today with five Members
of the U.S. House who are seated in the back of the Senate Chamber:
Congressman Duncan of South Carolina, Congressman Blum of Iowa,
Congressman Massie of Kentucky, Congressman Labrador of Idaho, and
Congressman Amash of Michigan.
I think it is important that the Senate recognize what the people's
House did last week when they passed the USA FREEDOM Act. That vote was
338 to 88. To suggest that this is just a small minority of Congress
men and women who support the USA FREEDOM Act--this is the chairman of
the Judiciary Committee, the chairman of the Intelligence Committee,
the chairman of the Armed Services Committee, and the chairman of the
Homeland Security and Governmental Affairs Committee, amongst many
others, who want to make sure we strike the right balance between
protecting the homeland and protecting our civil liberties.
The people of Montana, my colleague from Kentucky, the five Members
from Congress who are here at this moment, and millions of Americans
know I strongly agree with their view on the USA FREEDOM Act.
Like all Americans, I understand the great risks that face our
national security. The threats from ISIS, the threats from North Korea,
and the threats from Iran grow stronger each and every day. We must be
prepared. We must ensure our intelligence and law enforcement agencies
have the tools they need to protect and defend our Nation. But these
objectives--national security and protection of our civil liberties--
are not mutually exclusive. We can and we must achieve both. We must
maintain a balance between protecting our Nation's security while also
maintaining our civil liberties and our constitutional rights.
All of us standing here today took an oath to protect and defend the
Constitution. I took that oath just a few steps away from where I am
speaking here today, between myself and the Presiding Officer's chair,
occupied at the moment by the Senator from Utah, Mr. Lee.
As all of us here today know, the fight to protect our Constitution
and America's civil liberties is far from over. We must remain vigilant
and we must also ensure that we have robust and transparent debate
about these programs and what reforms must be implemented to protect
America's civil liberties. That is why I support the USA FREEDOM Act,
which would end the NSA's bulk metadata collection program and why I
strongly believe that Congress must engage in an open amendment
process. The American people must have their voices heard, and an open
amendment process will help ensure that happens.
[[Page S3142]]
In light of all we have learned about the NSA's unlawful bulk data
collection program, it is clear that reforms must happen. It is
critical that Americans' rights are protected against the overreach of
their own government.
So I ask the Senator from Kentucky, would he agree that the
indiscriminate government collection of Americans' phone records
violates the Constitution and, according to two independent
commissions, has not proven critical to our national security?
(Mr. TILLIS assumed the Chair.)
Mr. PAUL. I wish to thank the Senator from Montana for that excellent
synopsis of the issues as well as for the great question.
I think the reports by the review committee and the privacy
committee, both commissioned by the President, both nonpartisan, are
incredibly powerful because not only did they look at the
constitutional issue of whether this is a bulk or a general warrant
versus an individual warrant, they also saw practically that it wasn't
working, it wasn't adding anything to our intelligence. So I think we
have sort of a dual reason now to say this is a big problem.
One, there are constitutional questions, which I think are very
clear, but then the second practical question is that when we examine
the evidence--and the privacy commission actually looked at classified
evidence; they looked to see whether it was adding anything to this--I
am thoroughly convinced that we can catch terrorists with traditional
constitutional warrants.
When I have talked to former high-ranking heads of our security
agencies, they freely admit they get more information with a warrant.
It is a little more work. It has to be more specific. But I am also a
believer in that because we have generalized what we are looking for
and it is indiscriminate, that maybe we are missing people because we
are overwhelmed with data. We are overwhelmed with things at the
airports. I would much prefer that we have less indiscriminate searches
at the airports and be more specific in looking at the manifests of who
is flying and trying to find out who are the risks.
So I do think that, without question, this is not a constitutional
program. It is not even legal under the PATRIOT Act. The courts have
said it isn't, and we should do everything we can to stop it.
I appreciate the support of the Senator from Montana.
One of the things about this issue is that it really is a bipartisan
issue. It is an issue where there are people who feel strongly on both
sides of the aisle. The Senator from Oregon was here earlier and the
Senator from New Mexico, and I now see the Senator from West Virginia,
who is also a loud and consistent voice on this.
Does the Senator from West Virginia have a question?
Mr. MANCHIN. Mr. President, will the Senator from Kentucky yield?
Mr. PAUL. I will, without yielding the floor.
Mr. MANCHIN. I know the Senator from Kentucky agrees with me that the
defense of our country and the protection of our civil liberties should
be bipartisan and above politics. I know he agrees that we can and must
protect our citizens without violating their civil liberties. Again, I
don't always agree with my good friend from Kentucky on every issue,
but when it comes to this Nation's intelligence gathering and security,
we agree more than we don't.
As was he, I was deeply troubled by the revelation that our country
was engaged in bulk collection--I think we all were surprised--and that
millions of private citizens' data was gathered unknowingly and
unjustifiably.
In 2013, Edward Snowden revealed to the American public that NSA was
engaging in ``bulk data collection,'' in sweeping up virtually every
cell phone record of an enormous number of Americans, again for no
reason. The U.S. spying program did this by systematically and
indiscriminately collecting millions--I mean millions--of Americans'
phone records by simply digging up every phone record that came into
its net even if it wasn't remotely related to a broad, general search.
These are not searches that were relevant to a particular threat or an
individual group; it was just a huge database of documenting what
millions of law-abiding citizens were doing.
That is not what this country was based on, and I think the Senator
from Kentucky has made that very clear. I know the Senator from
Kentucky believes this was wrong, as I do. That is not just our
opinion; national security experts, legal experts, the American public,
and even several courts have said that the bulk collection of data is
not only unconstitutional but also unnecessary to our national
security. And my friend from Kentucky has confirmed that the
President's review group has said that bulk data collection is not
essential to preventing attacks and that the program has not made a
difference in a single instance.
The bill the Senate will soon be considering--the USA FREEDOM Act of
2015--will ensure that we restore important privacy protections for
Americans.
The United States will always face security threats--I think we all
know that--and we will for generations to come. That is just a reality.
On that horrible day of September 11, 2001, we as a country were
reminded of this fact and realized we must meet those threats with
strong law enforcement and strong intelligence. However, we must also
balance that necessity with our constitutional rights.
The NSA bulk data collection program clearly did not strike that
balance, and the District Court of DC and the Court of Appeals of the
Second Circuit of the United States struck it down. The courts have
made clear that this program is not legal, and I understand the
frustration of Senator Paul and Senator Wyden with any suggestion that
it be continued.
I believe this bill, USA FREEDOM 2015, moves us in a positive
direction. It ends the bulk data collection program and ensures that
the collection of data is related to a relevant, particular terrorist
investigation. At the same time, it still protects this country.
The USA FREEDOM Act of 2015 replaces indiscriminate bulk collection
and allows the government to collect call detail records on a daily
basis if it can demonstrate to the FISA Court a reasonable, articulable
suspicion that its search term is associated with a foreign terrorist
organization.
The bill provides greater transparency about surveillance activities.
It contains significant new government reporting requirements for FISA
authorities to ensure its activities do not again break the law. It
gives private companies increased options for reporting to the public
information about the number of FISA orders and national security
letters they receive. The bill requires declassification of FISA Court
opinions containing significant legal interpretations. The bill
requires the FISA Court to designate a panel to appoint individuals to
advise in particular cases involving new or difficult legal issues. It
expands the opportunity for the appellate review of FISA Court
decisions. The bill strengthens the judicial review process for gag
orders, imposes new privacy protections for FISA pen registers, and
limits the use of unlawfully obtained information.
The bill also contains many provisions to protect our Nation's
security. It creates a new emergency authority to allow the government
to obtain business records, including call detail records, without
advance court authorization if an emergency requires those records. It
also adds a short-term emergency authority for continued transnational
surveillance of foreign terrorists or spies who come into the United
States before emergency authorization can be obtained from the Attorney
General. It permits ongoing FISA surveillance of an agent of a foreign
power who temporarily leaves the United States. It clarifies that
individuals can be subject to FISA surveillance if they are knowingly
aiding, abetting, or conspiring with respect to the proliferation of
WMD on behalf of a foreign power.
Finally, the bill increases the statutory maximum penalty for
material support of terrorism from 15 to 20 years.
I know the Senator from Kentucky does not think it goes far enough in
protecting our privacy rights, but perhaps my good friend can remind us
again of what provisions he would like to see changed or strengthened
in the bill to satisfy his interests and the interests of Senator Wyden
and other people.
[[Page S3143]]
I yield the floor back to the Senator from Kentucky to hear basically
his concerns and how we can have some protections, and do we have any
rights whatsoever to gather information when it is proven? I have heard
the Senator from Kentucky say that if he thought we could prove it,
there was a different concern we had and we could get the FISA Court
involved and basically move forward from there.
I thought this bill moved us in a positive direction--the new bill
before the Senate that we are about to consider. I would appreciate it
if the Senator from Kentucky could explain to me his concerns about
that and what we need to do.
Mr. PAUL. Let me make sure I have the question correct. The Senator's
question is on my concerns on the USA FREEDOM Act?
Mr. MANCHIN. USA FREEDOM 2015.
Mr. PAUL. I want to like it because it ends bulk collection, and I am
all for ending bulk collection. So we all agree--the people for it
agree with the problem; it is a question of the solution.
It says there have to be specific selector terms on U.S. persons.
Part of my problem is that ``persons'' is still defined as
corporations. My concern is that you could put the word ``Verizon'' in
there, and the government wouldn't be collecting the records, but you
still could get all records from Verizon. Does the Senator see what I
mean? That is one of my concerns with the way it has been written.
My other general concern is that we would still be having bulk
collection. It wouldn't be bulk collection by the government, but it
would still be bulk collection but through the phone companies.
I don't like the liability protection because I think it makes it
more likely than not that the privacy agreement won't be as respected
if they cannot be sued for violating the privacy agreement.
Those are a couple of concerns. I don't know if they are
insurmountable, but those are a couple of concerns.
Mr. MANCHIN. I think we both agree and most of the people in this
body agree that the bulk collection is wrong. It has been proven to be
illegal, it shouldn't have been done, and it should be stopped. I think
we all agree on that.
I think we still face considerable threats from around the world on a
daily basis, if not even greater than that. We are looking to try to
find a balance, and I think the Senator from Kentucky is valuable in
helping us find that balance. That is what we are looking for. I know
our colleague, Senator Lee from Utah, has made a gallant effort in
trying to find that balance and making sure that we don't overstep.
The private companies are collecting. They already have that
information anyway. It is not just sweeping from NSA, as they had been
doing. Basically, I am understanding by this bill, the USA FREEDOM Act
of 2015, that basically we would have to demonstrate to the FISA Court
reasonable, articulate suspicion that its search term is associated
with a foreign terrorist organization. They can't even go into those
records until that is shown. That is the way I understood it. I am not
sure if there is something I am missing.
Mr. PAUL. I guess the question I have is that we have some of those
restrictions now, but they seem to think that those restrictions don't
apply--the people interpreting what we have now are interpreting 215 to
mean we can collect all of the American records in bulk.
If there were a circumstance where I was necessary to pass USA
FREEDOM and if it were that close, if people were willing to look at
the bill and say we would make a person, an individual-- see, the big
thing for me is that the warrant should be individualized. And I am
worried that if we use the word ``person'' and if it can be replaced
with the word ``Verizon'' and we still collect all the records, I would
feel disappointed if we thought we got rid of bulk collection and a
year or 2 from now, when they finally admit it, they admit: Oh, we are
still doing the very same thing. We are doing Verizon. We are getting
all of Verizon's records. We are just making them process it, and we
are paying them for it.
That is what I fear. I want to make sure that doesn't happen.
Mr. MANCHIN. I guess we are caught in that Citizens United decision,
it sounds like.
Mr. PAUL. In a different way, we are talking about whether in the
intelligence selector numbers a person is a corporation and whether can
have a single warrant.
I think if you want phone records from Verizon, it should say
``Verizon'' and we want the records of John Doe. It shouldn't just say
that we want all the records from Verizon. That is a general warrant. I
am still fearful that the USA FREEDOM Act might not limit that.
Mr. MANCHIN. If the FREEDOM Act goes away and the way they are doing
bulk collection, which we agree should be done away with--and we don't
come to some agreement--are you concerned that we might be in more
jeopardy by not having something in place where we are able to get the
necessary intelligence we need?
Mr. PAUL. I guess that is also where I probably differ. I think we
are just as safe or safer with nothing, because the Constitution allows
the searching of records. And I am all for it, but I would do it
through warrants.
The point is that in metadata, one can do a hop or two with these
less-than-constitutional warrants or whatever. But with a real warrant,
we can go 100 hops into the data. I really would chase the rabbit down
the hole. I would look very hard with suspicion, and I think warrants
are generally easy to get. This is the point I don't get about why we
have to have warrants with a lower constitutional standard, because I
think the FISA warrants are almost never turned down, but neither are
criminal warrants. If you are a policeman standing in front of a house,
you almost never get a no. But if you are a policeman saying, I want to
search all my neighbors' houses, then the judge is going to say no, and
that is a good thing. So I think traditional warrants--I think people
have somehow just convinced themselves that we can't catch terrorists
with traditional warrants, but I think you can go through a lot of data
with traditional warrants, too.
Mr. MANCHIN. Your sincere belief is that if this sunsets, this bulk
collection in the way the PATRIOT Act has been enforced before--if it
sunsets and it goes away, which we agree that we are trying to replace
that before the sunset--you believe the system we have had in place
before the PATRIOT Act of 2001 gives us still the ability to keep the
homeland safe, using the court system, as you say, following the rabbit
down the hole using the court system? Because we know we have rapid
fire coming at us from different directions and people trying to come
into this country and do harm. Social media has blown up even since
2001, so we are much more vulnerable from that standpoint.
What I am hearing you say also is that you are not really
objectionable if you can find the right language--if you thought you
could get protection of that individual without the interpretation of
the entire broadness of the corporations.
Mr. PAUL. I think that also and within the context of--we have six or
seven amendments that we would like to offer. I can't guarantee that we
could win any of them, but there is a chance maybe we could win another
reform.
So for example, one of the reforms that some people think may be as
important as all the bulk collection is the ability of the government
to tell an Internet provider that they have to create a backdoor to
their product for the government to go through--and some of the
backdoor stuff through 702.
We think there are some other things that may well be as big as this.
I also think there is the ability of the government to not only use
traditional warrants. They have some they are using under Executive
order, as well, and we still have a host of other types of warrants and
subpoenas being used. But I would never be for this in a heartbeat if I
thought it was going to put the country in danger. I think we will be
safer because of it and so will our liberty.
Mr. MANCHIN. It is a good point in the bill that we will be
considering, the 2015 FREEDOM Act. It expands the opportunity for the
appellate review of the FISA Court decisions, which I think the Senator
has had a problem
[[Page S3144]]
with, too, because it has been handed out, uncontested. Is that
correct?
Mr. PAUL. Say that again, please.
Mr. MANCHIN. The bill that we will be considering is expanding the
opportunity for the appellate review of the FISA Court decisions. I
think and I can understand that you are saying they can get a FISA
order no matter what.
Mr. PAUL. I am not sure I understand the question, but I do believe
as to the court case right now, the way it stands--if the USA FREEDOM
Act had passed last year, I think there was a chance that it might have
made the court case moot because it would have said that Congress has
already acted and Congress now has given an authority for a variation
of this and Congress already fixed the problem. So there is a part of
me that would like to see the appellate court case go up to the Supreme
Court. It has been remanded to a lower court so I don't know if it is
ever getting there. But we ultimately have some questions in our
country that won't be decided until we have a Supreme Court case.
One of those questions is, Do papers have to be physical and in your
house? What if they are digital and lodged somewhere else? Do you have
any right of privacy, any Fourth Amendment protection at all for
records that are held somewhere else? The current legal opinion doesn't
really give any protection to third-party records. I think that needs
to be fixed, because technology has made it such that our records are
no longer going to be real records that you can hold in your hand. I
think almost all of our records will be virtual and held in space
somewhere, and I think you still have to have a personal privacy
protection in those.
Mr. MANCHIN. So the bill that we have proposed before us, it is going
to require declassification of FISA Court opinions containing
significant legal interpretation, which is a positive thing.
Mr. PAUL. There is a lot that I like in the bill. It is just a matter
of whether or not I can be convinced that it doesn't allow bulk
collection under another name. I am still worried about that. But I am
open to it.
Some of these things--this is a very important bill. I mean, we could
have a week of discussion on this bill, and amendments and a process.
The only reason we are getting a little bit of this is because I am
kind of forcing the issue, but I would like to see the amendments voted
on. All the other stuff we are doing around here is important but has
no deadline. We could have done it next week or 2 weeks from now--all
the stuff we are doing right now.
But anyway, that is what I am going to be asking for--the ability to
present five or six amendments, vote on them, and then we will see. And
I am more than willing to talk with the authors of the USA FREEDOM Act
to see if there is a way, but it is going to have to involve some give
and take to figure it out.
Mr. MANCHIN. It sounds like we are not that far apart. I think we are
all going down the same path, trying to keep the homeland as secure as
possible while protecting the rights of all Americans. I appreciate
that. I hope that we do. These are important issues. It is a dangerous
world that we live in. It is a threatened world that our children are
being raised in. We want to do everything we can to protect them, and I
know you do, too.
With that, I think we all came to an agreement that what was done
before was wrong. So we all come unanimously to that agreement, and
finding a pathway forward is what we are working on now. So I
appreciate your sincerity and your intent to try and reach out and find
that. I hope you can find that comfort level so we can move forward and
still have a protected country.
Thank you.
Mr. PAUL. I thank the Senator from West Virginia. I think he has made
some really good points. I think a lot of us have come to the agreement
that there is a problem with bulk collection. I don't think we have
everybody, but I think we have a significant number. The court agrees
with us. So I think we are getting closer.
One of the groups that we have talked about in looking at where we
are, whether this is a constitutional or legal program--is it is pretty
intriguing to look at the report that comes from the Privacy and Civil
Liberties Oversight Board. This is a bipartisan board. It is a board
that was put in place, and I think the appointees are bipartisan
appointees.
When they met, they came to the conclusion, though, that the bulk
collection of records is not warranted and not given sanction by the
PATRIOT Act. They had four different reasons why they say that the
telephone records program--the bulk collection of our records--does not
comply even with the PATRIOT Act. The first reason they say is that
there is no connection to any specific FBI investigation at the time of
the collection. So, basically, when they collect your phone records,
they are not even alleging that they are related to any investigation.
But that is what the statute says. They are supposed to be relevant to
an investigation, but there is no evidence and nothing is even
presented that there is any investigation even going on. The
investigation actually starts after they have collected all of your
records.
So how can section 215 say that you can collect these records because
they are relevant to an investigation that has not yet even begun? They
use this big data case later on when they say there is going to be an
investigation. So I think their No. 1 reason is pretty strong. There
can't be a connection or relevancy because there really is no
investigation when they collect your records.
The second reason of the privacy commission was that the records are
collected in bulk, potentially encompassing all telephone calling
records across the Nation. They cannot be regarded as relevant to any
investigation without redefining the word ``relevant'' in a manner that
is circular. Relevant sort of means that there is some sort of criteria
that means that there is some pertinence, that there is something about
the records or something about the investigation.
For example, if there is someone in the northwest section of
Washington, DC, and we saw something happen there. We are saying we
want to look at the records there. Even though it might be bulk
collection, it would be at least relevant to some sort of
investigation. There would be some pertinent factor. But they are just
collecting everybody's records. It is completely without any relevancy.
And I love the way they put it--that this would not be relevant unless
we redefine the word relevant in a manner that is circular, unlimited
in scope, and out of step with case law from analogous legal context
involving production of records.
The third reason why the privacy board said that this program is not
legal is that it operates by putting telephone companies under an
obligation to furnish new calling records on a daily basis as they are
generated, instead of turning over records they already have in their
possession. This is an approach lacking foundation in the statute and
one that is inconsistent with FISA as a whole.
The final reason they say that this program is illegal--this is the
President's own privacy commission--is that the statute permits only
the FBI to obtain items for use in the investigation. It does not
authorize the NSA to do anything. So section 215 of the PATRIOT Act is
what they are saying they are using as justification. It allows the FBI
to collect records. It doesn't allow the NSA at all. So they are using
a statute that was intended for the FBI to say the NSA can do this. So
I think the reasons are pretty clear--four specific reasons why the
PATRIOT Act does not justify the collection of these records.
The next thing the policy committee looked at was they looked at and
they tried to decide whether there has been any practical effect. I
know Senator Leahy was a part of this, looking at whether any of these
things actually did catch terrorists. But this is what they concluded,
and they actually looked at the classified data. So the Privacy and
Civil Liberties Oversight Board looked at the data, looked at the
classified data, and this is their conclusion:
However, we conclude that the Section 215 program, the bulk
collection, has shown minimal value in safeguarding the
nation from terrorism. . . . we have not identified a single
instance involving a threat to the United States in which the
[bulk collection] program made a concrete difference in the
outcome of a counterterrorism investigation.
[[Page S3145]]
Those are pretty strong words. The Policy and Civil Liberties
Oversight Board commissioned by the President, which is bipartisan,
looked at the classified data and said it didn't find a single
incident--not one incident--in which it made a concrete difference in
the outcome of a counterterrorism investigation.
Moreover, we are aware of no instance in which the program
directly contributed to the discovery of a previously unknown
terrorist. . . .
What does this mean? We are not pushing a button and generating
terrorists out of this. The terrorists are coming from real
information. You have to realize that this misinformation and this
wrong-headed information has been used forever--for 15 years--to
justify the fact that we should give up on the Fourth Amendment and we
should give up on protections.
Over and over people say that if we only had the PATRIOT Act, we
wouldn't have had 9/11. The two terrorists they claim we would have
gotten were in San Diego. We already knew about them. An informant
lived with them for a year. The FBI wasn't talking to the CIA, they
weren't looking at lists, and they didn't know they would come back.
The CIA didn't know. It had nothing to do with having bulk collection
of our records. We knew about these people. It was crummy work. It was
people not doing their job.
I repeat: No one was ever fired. We gave rewards. We gave medals of
honor to everybody in the intelligence community and no one was ever
fired. There were some true heroes--the FBI agent in Arizona and the
FBI agent in Minnesota who actually discovered potential hijackers. The
20th hijacker was captured before 9/11. The 20th hijacker was captured
a month before 9/11. That is the person who should have gotten the
Medal of Honor. The person who would not listen to him should have been
fired. I have no understanding or awareness that anybody was ever fired
over 9/11.
The Policy and Civil Liberties Board goes on to say that our review
suggests that section 215 of the PATRIOT Act, the bulk collection of
records, offers little unique value. They explore a little bit of
whether there is a privacy problem with collecting all of these records
and what are the implications of collecting all of these records. The
government's collection of a person's entire telephone call history has
a significant and detrimental effect on an individual's privacy.
Beyond such individual privacy intrusions, permitting the government
to routinely collect calling records of the entire Nation fundamentally
shifts the balance of power between the State and its citizens. With
its power of compulsion and criminal prosecution, the government
possesses unique threats to privacy when it collects data on its own
citizens.
Compound this with the fact that the government--you could say: Well,
they are just collecting this data at a lower standard, but if you are
not a terrorist you do not have to worry. But here is the problem. They
are collecting this data with the lower standard, a less-than-
constitutional standard, but then they are also prosecuting you for
domestic crime.
Section 215 of the PATRIOT Act is being used 99.5 percent of the time
for domestic crime. We are putting drug dealers in jail. That is
another question and another story. But then we should vote on it as a
country. OK. For drug dealers, we are not going to have the
Constitution anymore, we are going to have the PATRIOT Act for drug
dealers. Let's be honest about it. The war on drugs has had a disparate
impact, a disproportionate impact on people of color. So you have to
admit to all the young Black men and all the young Brown men you put in
prison that we are no longer using the Constitution to stick you in
prison, we are using the PATRIOT Act to put you in prison.
We need to be honest with people. If the PATRIOT Act is about
terrorism, they should adopt my amendment that says you cannot be put
in jail for a domestic crime under the PATRIOT Act. Why? Because the
PATRIOT Act has dumbed down and loosened the standards. We do not have
probable cause, we have relevance. Realize that relevance, as they say
in the Commission, has become completely circular and devoid of
meaning, if you are saying that all the records in the country are
somehow relevant to an investigation that has not yet begun.
They make a great point here about the fact that not only does this
stifle or invade your privacy, it may well stifle your speech and your
association. If you are going to be associating with minority causes,
unpopular causes, whether you are a kid from the North who went down to
be in favor of civil rights, whether you are someone who belongs to the
NAACP or the ACLU, they say: Yet, even though there is no evidence of
abuse--
And this is the big argument. Everyone says: Well, there has never
been any abuse, so it is fine to keep doing this.
Yet, while the danger of abuse may seem remote, given
historical abuse of personal information by the government
during the 20th century, the risk is more than theoretical.
I could not agree more. Moreover, the bulk collection of telephone
records can be expected to have a chilling effect on the free exercise
of speech and association because individuals and groups engaged in
sensitive or controversial work have less reason to trust in the
confidentiality of their relationships as revealed by their calling
patterns.
Realize that they are taking your phone records, your calling lists,
your buddy lists, your ISP address, your email. They are integrating
this into some network where they can pull your name up and find out
who are all your buddies, who are all your friends, who are all your
Facebook friends.
Realize the potential danger of having so much information, so much
of a dossier on every American citizen, even if they are not using it.
But when you think that, well, this is fine because we are not doing it
and good people are running these agencies, realize that the head of
the Agency lied to us about this program at all. He said it did not
exist. So when you get to be trusting these people to protect your
individual information, realize that the most--at the very top of the
intelligence community, the most famous person in our country dealing
with intelligence lied to a congressional committee and said that this
program did not even exist.
The report goes on to say that the inability to expect privacy, vis-
a-vis the government and one's telephone communications, means that
people engaged in wholly lawful activities, but who for reasons
justifiably do not wish the government to know about their
communications, must either forgo such activities, reduce their
frequency or take costly measures to hide them from the government
surveillance.
The telephone records program thus hinders the ability of advocacy
organizations to communicate confidentially with members, donors,
legislators, whistleblowers, members of the public.
Initially, in the 1970s when we set up the surveillance court, the
security court, the FISA Court, they were done with individualized
warrants. They got information through individualized warrants.
Beginning in 2004, though, the role of the security court changed
when the government approached the court with its first request to
approve a program involving what is now referred to as bulk collection.
For the first several years, we did bulk collection--they just did it.
They just said it was under the inherent authorities of the President.
This should scare us because there are people who believe that the
inherent authorities of the President are unlimited. That would not be
a President. There would be another name for that.
But if there are no limits to what the President can do, there is
another name for it and it is not President. The Commission goes on to
say that the judge's decision--their decisionmaking would be clearly
enhanced if they could hear opposing views. So the privacy commission
advocates exactly what I am advocating for, that you should have a
lawyer in there with you and that there should be an adversarial type
of procedure.
Because the thing is, is that it is like any other dispute. If you
have ever heard two people arguing, figuring out the truth is listening
to both sides and trying to gather what the truth is. So I think that
we get to the truth a lot more if we had someone asking questions.
Realize also that section 215 of the PATRIOT Act says that the
information has to be relevant to an investigation.
[[Page S3146]]
Without having someone in there to argue your case, the court appears
to have not really had a great deal of discussion or, to my mind,
thought about whether bulk collection is somehow relevant. You might
argue that if there were opposing sides, as in a traditional court,
that maybe someone would stand up and say to the judge: How can this be
relevant? What investigation is it relevant to?
See, I think the FISA Court became such a rubberstamp that you were
not even having these questions asked because how could you ask that
question. If you are an advocate for someone who does not want to give
up their information, how could you ask the question whether it is
relevant to an investigation, and then the government would say: Well,
we are going to do it. It will be relevant when we do an investigation.
No court, you would think, would understand or accept that, if it
were an adversarial procedure where you have a lawyer on both sides. I
don't think you can truly have justice--I think you can have a court
that meets in secret. I think courts can protect individual names and I
want them to. I thought Senator Wyden made a great point when he was
out here.
Intelligence activities, at their core, we have to protect the names
of operatives. You do not want the code out there, like if we have a
great code and we are stealing information from our enemies and we are
eavesdropping on our enemies, we do not want the code out there that
shows how smart we are and how our technology works. But if we are
going to do something like collect the records of all Americans, that
is a constitutional question.
You can have opinions on both sides of it. I do not think there is
much of a valid constitutional reason for believing in this. But you
can have an opinion. In a democratic Republic, we could argue these
points back and forth. But you really would have to have the ability to
have a discussion over those things. Because I think without that, I do
not think we can actually get to justice.
Mr. COONS addressed the Chair.
The PRESIDING OFFICER. Does the Senator from Kentucky yield for a
question?
Mr. PAUL. Mr. President, I would yield for a question but not yield
the floor.
Mr. COONS. Mr. President, I am wondering whether the Senator from
Kentucky would be good enough to confirm for me where I think the issue
is that is before the Senate today. So if I might, I will speak for a
few minutes about what I think is the core issue before us on the floor
and then ask the Senator whether he would confirm that this is his
understanding as well.
At the outset, I will say it is relatively rare for my colleague from
Kentucky and I to come to the floor in agreement on an issue, but it
has happened before on exactly this issue. I think it is important that
it be clear to folks that there are concerns on both sides of the aisle
on the critical underlying issues about how we balance privacy and
liberty, security and our civil liberties.
For nearly a decade, our government has operated a program that
collects massive amounts of information from innocent Americans without
any specific suspicion they have done anything wrong. Let me put that
another way. For years, any American's communication data could have
been tracked and collected by the government, whether or not they were
suspected of a crime.
That program has been carried out under Section 215 of the PATRIOT
Act based on flimsy or mistaken interpretations of the original law,
all in the name of our national security. Yet the bulk collection
program has had disputed and not arguably clear benefit to our national
security. There is not one clear publicly confirmed instance of a plot
being foiled because of this section 215 program. I have long been
concerned about the scope and the reach of our intelligence community's
bulk collection program.
That is why in 2011 I voted, along with my colleague from Kentucky,
against the straight reauthorization of the PATRIOT Act. I believed
then, as I believe now, it would be irresponsible for Congress to
continue reauthorizing the law without taking steps to address concerns
about unlawful surveillance it has allowed, particularly given the fact
that earlier this month a U.S. Federal circuit court specifically
deemed this program illegal.
Fortunately, we have an alternative, which I believe the Senator from
Kentucky has been expounding on behalf of, the USA FREEDOM Act, a
bipartisan bill passed by the House just last week by an overwhelming
margin--I think it was 338 to 88. It would end bulk collection by only
allowing the Federal Government to seek call records retained by the
telecommunications industry once it has established a record is
relevant to an ongoing investigation.
Records would no longer be stored by the government but would remain
in the hands of telecommunications companies, which under FCC rules, in
order to ensure that there is customer access to records in the case of
a dispute, they are retained for 18 months. This bill strikes an
important balance by protecting American's privacy and ensuring our
government can still keep our Nation safe.
In fact, there are some who might argue that the USA FREEDOM Act
would allow a stronger and more robust and more effective series of
actions to keep our Nation safe. I urge my colleagues to support it. I
know these are difficult decisions for us to make. I know we all have
concerns about our Nation's security, but we have to all have concerns
about our Nation's freedom.
We fought for it from the very beginning of our country. I want to
just thank and salute Members here, colleagues, and in particular my
colleague from Kentucky for being insistent that we have clarity about
time. We were told 4 years ago, when the reauthorization fight was
happening, that time had run out and that we needed to reauthorize it,
without considering needed reforms that were discussed and debated in
the Judiciary Committee.
Two years ago, some of the core elements of this were exposed to the
world. A lot of my constituents raised legitimate and serious concerns
about it. Whether we are being asked to extend it for 2 week or 2 days
or 2 hours, I think time has run out for us to even discuss
reauthorizing a program that has explicitly been held illegal. We
instead need to come together and take up and pass the USA FREEDOM Act.
Would my colleague from Kentucky confirm that is the situation on the
floor at the moment and on behalf of which he was speaking?
Mr. PAUL. I think what is still unclear to me is what will be taken
up and what votes there will be on this. I believe that the debate is a
very important one, that it is one we should engage in and have a
significant time to talk about, and there should be amendments. As you
know, sometimes the amendments get offered and then things sort of fall
away.
I want to ensure that on something this important that comes up only
once every 3 years and on which the court just below the Supreme Court
has said we are doing something illegal, that we don't just gloss over
and say we are going to keep on doing something the courts have said is
illegal.
As far as the end result of where it goes, I want to end bulk
collection. So I agree with all of the people on the USA FREEDOM side.
I am a little concerned that we might be transferring government bulk
collection to privately held bulk collection.
In the selector terms they use in the USA FREEDOM Act, it says
``person.'' It says ``specific person.'' I think it defines ``person,''
though, as still including corporations. My concern is that you could
write into specific person ``Verizon'' again, and we are back where we
started.
So if we could get to a point of, No. 1, allowing some amendments to
be voted on and maybe changing it such that you can't have--see, to me,
the biggest issue here is a general versus a specific warrant. I don't
want warrants that you can get everybody's records all at once or even
one company's. I want the warrant to say--and I am fine with getting
terrorists. I want to get terrorists. If John Doe is a potential
terrorist, put his name on it. You can go as deep as you want into the
phone records, but do specific warrants. But I don't like it if you
just say: I want everybody's records from a phone company.
So I am concerned that we are trading one bulk collection for another
form, and I need to be a little more assured on that. I think there
might be
[[Page S3147]]
room for it if people were open to discussion on how we could figure
out a way to get something through because it is going to difficult, as
you know, to get to 60. It is going to be hard either way. The other
side wants the bulk collection, and if people want the bulk collection,
they want more of it. And then there are at least half of us who think
it is the wrong thing to do.
I don't know the outcome, but I was uncertain enough that I came
today to come to try to draw attention to it. And if I had a request
today, it would be the leadership to let amendments to go forward, that
we agree on having a pretty free amendment process.
This is only every 3 years, and it is a big deal. We don't have much
legislation come before us where an activity has been said to be
illegal by an appellate court, we continue to do it, and then people
want to advocate to continue to do something that is illegal. But I am
going to try to see what I can get. I am hoping to get an answer--maybe
today--from leadership on whether they will allow amendments to this. I
want to be pretty certain that is going to happen because they seem to
fall away sometimes.
Mr. TESTER addressed the Chair.
The PRESIDING OFFICER. Does the Senator from Kentucky yield for a
question?
Mr. PAUL. I want to continue to keep the floor. I yield for a
question without losing the floor.
Mr. TESTER. Mr. President, first, I thank the Senator from Kentucky
for what he is doing. I think this is very important, and I stand here
today with my colleagues on both sides of the aisle to protect
Americans' privacy rights.
I am very much concerned by the overreach we have seen in the name of
national security, and I oppose efforts to reauthorize any piece of it
without real reforms.
Folks in Montana know I have been an opponent of the PATRIOT Act
since it was signed into law. Why? Because the PATRIOT Act violates
law-abiding citizens' rights to privacy--something we hold dear in this
country. We do need to make this country as secure as we possibly can,
but we cannot do that at the expense of our constitutional rights.
It has been talked about here earlier today that a Federal court
recently ruled that the NSA bulk data collections are illegal, flat
illegal. But keep in mind that the NSA used the PATRIOT Act to
authorize those data collections. Yet, in the Senate, some of our
colleagues think we should reauthorize those expiring provisions
without even having a debate on the merits. We have seen this before.
It has happened several times since I have been in the Senate.
Trying to jam an extension of the PATRIOT Act through the Senate at
the last minute is not fair to this body, and it is not fair at all to
the American people. We deserve a real debate on privacy and security
in the Senate. It is too important of an issue not to. We have to put
some sideboards on our national intelligence agencies so that they can
keep us safe without violating our constitutional rights. We need a
real debate on this issue.
Last week, the majority leader made a decision to deprive the Senate
and the public of debate by taking up a trade bill which we could have
passed in June. No doubt about it, we are approaching the Memorial Day
recess. Some folks are anxious to go home, but we have work to do. I
will continue to work with my colleagues to ensure that we make real
reforms to the PATRIOT Act. If the people in this body don't know that
this is important, they don't know the Constitution.
I thank everybody who spoke on the floor today. We need to have a
debate. We need to have a debate on what the PATRIOT Act is about, how
it is being utilized, and how we need to move forward. An extension is
not acceptable.
I yield the floor back to the Senator from Kentucky and thank him for
the work he has done on this issue.
Mr. PAUL. I thank the Senator from Montana, and I think that is
further evidence that there is bipartisan support for the Constitution.
The PATRIOT Act went too far. We have heard from both Senators from
Montana, from opposite parties, who both wanted to defend the
individual, wanted to defend the Bill of Rights, and think that we have
let the government go too far. I think the American people agree with
this as well.
I think without question--this is one of those things that are kind
of perplexing, if you think about it. If you ask most Americans, if you
do a poll or a survey or ask most Americans ``Should the government be
allowed to look at your phone records without any suspicion that you
have committed a crime?'' I think there are a very low number who think
that. But then when you get to Washington, it is almost the opposite.
You have people in Washington who have, I think, viewpoints that are
really out of step with what the American people want.
I think the American people really have decided that the bulk
collection of records is wrong, that it is unconstitutional. The second
highest court in the land has said it is illegal. Yet, you still have a
significant body of people in this country saying: Not only keep doing
it, let's do more of it.
The problem is that if we are going to allow records to be collected
without individualized suspicion, what we are doing is allowing
something, when we talk about bulk collection, that has no sort of
determinants for what suspicion is. You can imagine what the danger of
that is if you apply that to everything.
Also, in an age where we have computers that can analyze and hold so
much information--they are building them bigger and bigger and
gathering more and more and processing this information--there is great
danger that could come from this.
I wrote something about ``1984'' a couple of years ago, and I said
when I read it the first time--and a new big brother, you know, was the
danger of all these things. I thought, Oh, this is terrible. But I felt
comforted. I read it probably in 1978.
We didn't have the technology to eavesdrop on everyone. We didn't
have the technology to know everyone's whereabouts. We didn't have the
technology to have cameras in every house.
In the book, they talked about looking at people back and forth
through two-way televisions and monitoring. Everybody, as you know, had
to be careful where books were placed. You had to read in secret
basically. But because the technology didn't exist when I read
``1984,'' I really wasn't as concerned about it. But the thing is that
you don't lose your freedom in one fell swoop; you lose it a little bit
at a time.
People say: Well, the people doing this are good people.
It is like the President said. When the President signed legislation
a few years ago that said that an American citizen can be detained
without a trial, he said: But I am a good man, and I won't use this
power.
It is sort of a fundamental misunderstanding of law and the rule of
law that you think that the goodness of yourself or the goodness of the
individuals around you somehow is the protection of the law. The law is
really to protect you against bad people. The law is to protect you
when bad people get in office. The law--and those who believe in the
rule of law--is based on the fact that there is an understanding that
in the time of history, people were democratically elected who were bad
people and that people, once given power, become addicted to it and
they want more of it.
Lincoln once wrote that any man can stand adversity, but if you want
to truly challenge a man, give him power. That is what we are talking
about. We are talking about unlimited power. We are not even talking
about power that is constrained by law at all.
The whole idea that the PATRIOT Act has anything to do with the bulk
collection is a farce. The President's privacy commission has really
put this in bold for us, that really there is nothing about the PATRIOT
Act that has any resemblance to what we are doing with bulk collection.
So that is not only the rule of law, that is people within government,
within the executive branch, who have made the decision that they are
going to do whatever they want.
One of the things that worries me about this debate--and I think it
is good that we are having the debate--there is apparently a section of
the PATRIOT Act as we passed it the last time that says that if the
PATRIOT Act is not extended, all things previously being investigated
before will continue. So we really kind of have a perpetual PATRIOT
Act, if you will. That worries me a little bit, but then it
[[Page S3148]]
worries me a little more that we are not even really paying attention
to the PATRIOT Act; we are doing whatever we want. It is sort of a
lawlessness that allows us to collect bulk records because there is no
relevance to an investigation. As they said in the privacy commission,
we are collecting the records before there is any investigation. So
there is no relevancy to an investigation. The investigation hasn't
started yet, unless the investigation could be defined as everything.
I like the way they put it. They said we would have to destroy the
definition of ``relevancy'' to believe that there is any component of
relevancy to these investigations.
But we are collecting records of every American all of the time right
now. It may not be just phone records; they say the biggest source of
collection now is probably actually through section 702 of FISA, the
FISA amendments. We are not exactly clear who gets scooped up in that.
Once again, if these are the records of foreigners, if these are the
records of people bent upon attacking us, I am all for getting that.
But the way they are collected--and by some allegations, intentionally
so--we are sometimes targeting a foreigner, so we don't have to use a
standard at all in order to get information on an American.
So let's say they want information on you. I am not sure why, because
some of this is being used for drug crimes and domestic crimes. So
let's say they want information on you and they don't want to get a
warrant or a judge says no. In fact, that sometimes happens, that the
FISA Court judge says no and then they use one of these other end-
around ways that don't even require a FISA Court judge.
The level of lawlessness is appalling. The level of lawlessness is
astounding. It disappoints me that the President, who was once
considered by some to be somewhat of a civil libertarian, does nothing.
When the President ran for office, the President said that national
security letters ought to be signed by judges. He was in the exact same
place where I am on civil liberties with regard to these warrants, the
national security letters. Yet, his administration issues them by the
hundreds of thousands. I don't think they are even reporting these
anymore for us. I think they were reporting them for a few years, but
we are no longer getting information.
But it disappoints me that the President is not really willing to do
anything about this. The President could end the bulk collection
tomorrow. It is done by Executive order; it could be undone by
Executive order.
It is disingenuous, at the very least, that the President says: Oh,
yes, we are going to balance liberty and security.
Well, no, he is not. He is not balancing anything. He is just
continuing to collect all of our records without a warrant. He is
continuing to do bulk or general collection of records without a
warrant.
I think the American people are ready for us to be done with this. My
hope is that during today we will call attention to this and that the
American people will say: Who are these people who want to keep
collecting our records without a warrant, and why do they still want to
do this when the people who have investigated it have determined that
no one has been captured by this program, no one has been uniquely
identified by this program?
So there really is a consideration of whether we are going to listen
to the American people. Are we going to wake up? Are we a
representative body?
This question is, Are we going to allow a debate on something that
only comes around every 3 years or are we going to say ``My goodness,
it is the weekend, it is Memorial Day weekend, and we are up against a
deadline, and we just don't have time to listen to this. We don't have
time to talk about the Bill of Rights because we just don't have time.
I know it has been 3 years that we have known this date was coming up,
but we don't have time''?
I think at the very least we could make time, and that is my request
today. My request of the leadership on both sides of the aisle is: Can
we not make time? There are at least 10 or 15 of us who will cosponsor
about 5 or 6 amendments that we want votes on. Frankly, I think with
the mood of the country, we have a chance on a few of these.
I would like to see how a vote would turn out on the idea, for
example, that we are using a less-than-constitutional standard to
gather information that we say is for terrorism, but then we put people
in jail domestically for crimes that are completely and entirely
unrelated to terrorism; that whether or not we can use information
gathered in a nonconstitutional or a less-than-constitutional way is
going to be used for domestic crime.
If you believe that, it means we are carving out in our domestic laws
an area where the Constitution doesn't entirely apply. Section 213
allows the entering of the house in a nonconstitutional way--a way
that, if it were done in a straight-up fashion, the courts would say it
is illegally gathered information and wouldn't be admissible in court.
I think we ought to have a vote. Is the PATRIOT Act our less-than-
constitutional means of gathering information to be used in domestic
court?
Here is the other question, if they will be honest with us: Are they
using them in any other courts? Are there IRS investigations that begin
as terrorist investigations but end up in IRS court?
In some ways, I think yes is the answer. We have now the IRS basing
investigations of people maybe for political purposes but definitely
for the purposes of whether individuals are doing transactions in
certain ways or whether their records are in a certain way. And because
it is done this way, we are not really requiring convictions before we
take their stuff. This is a separate but related problem because it has
to do with using records to gain entrance to people and to then take
their stuff without a conviction.
I think that is an important question. Are we innocent until proven
guilty? Are we really going to allow the government to take possession
of your things, to take possession of your things without a conviction?
I would think the presumption of innocence is an incredibly important
doctrine that we shouldn't so casually dismiss.
This is a poll that was commissioned by the ACLU on Monday, and they
asked a sample of 300 likely voters between the ages of 18 and 39 a few
questions.
It says: Which of the following statements about reauthorizing the
PATRIOT Act do you agree with more?
Some people say Congress should modify the PATRIOT Act to limit
government surveillance and protect Americans' privacy. Sixty percent
agreed.
Other people say Congress should preserve the PATRIOT Act and make no
changes because it has been effective in keeping America safe from
terrorists and other threats to national security, like ISIS or Al
Qaeda. That was 34 percent.
Those are the overall numbers. If you look at it by all parties--
Democrats, Independents, and GOP--it is 58 percent or greater. In fact,
Democrats and Republicans are pretty equal, which is interesting, with
59 percent of Democrats and 58 percent of Republicans thinking we have
gone too far in the PATRIOT Act and that Americans' privacy is being
disturbed by the PATRIOT Act.
If you look at Independents, it is 75 percent among men who are
Independent and 65 percent among women who are Independent.
The survey asked people: Do you find it concerning the U.S.
Government is collecting and storing your personal information, like
your phone records, emails, bank statements, and other communications?
Eighty-two percent are concerned the government is storing this
information.
Over three-quarters of voters found four different examples of
government spying personally concerning to them: The government
accessing personal communications, information or records without a
judge's permission--83 percent--using that information for things other
than stopping terrorists, such as I mentioned, doing convictions for
drugs, were the most compelling examples for voters.
With regard to whether the government accesses any of your personal
communications, information or records you share with a company without
a judge's permission, people were asked to tell them whether they were
concerned with this issue. Eighty-three percent were concerned.
When asked about the government using information collected without a
[[Page S3149]]
warrant for things other than stopping terrorist attacks, 83 percent
were concerned.
When asked about the government allowing private companies to use
public school technology programs to track online activities of
schoolchildren, 77 percent were concerned.
When asked if the government performs instant wiretaps on any phone
or other telecommunications devices located in the United States, 76
percent were concerned.
From this ACLU study of young people--I believe they were all ages 18
to 39--participants were asked whether or not these were conditions
that would lead you to believe that Americans need more protections of
their privacy: Local police and the FBI need a warrant issued by an
independent judge for a valid reason before they search your home or
property without your permission; the same should be true of your email
and phone records. And 84 percent agreed.
If you ask that question in Washington, it is about a 10 or 15
percent question. Most people in Washington don't think your email or
your phone records should be protected by needing a warrant. But if you
ask most Americans the question--particularly young Americans--should
your email or your phone records be protected by a warrant? Most people
say yes.
The government requires some companies to intentionally include
security loopholes in their services to make it easier for law
enforcement to access your information. These are these backdoor things
where they can insert malware. This makes the government less safe by
leaving us vulnerable to terrorists and spies of foreign countries who
want to harm the United States. Eighty-one percent were concerned with
this and thought we should have more privacy.
I think it is clear the American people are concerned about what we
are doing. What isn't yet clear is whether the message has been
transmitted to Washington; whether or not there is enough of a majority
growing in Washington to actually do something about this. But I think
the numbers are growing.
Over 300 people in the House acknowledged there was a problem and
passed legislation. I have mixed feelings on the legislation. I think,
without question, I agree with those who voted for it that bulk
collection of records is wrong and that it should end. I have been a
little more in the camp, though, that we should just end the bulk
collection of records and replace it not with a new program but with
the Constitution.
I personally think we could survive with the Constitution. I think we
could also survive and catch terrorists with the Constitution. In fact,
I think we can get more information with the Constitution. I think
valid warrants are much more powerful. A valid warrant allows a great
deal more information and it is also specific.
Once we are doing valid warrants, we are not doing this sort of
dragnet. We are not doing this sort of vacuuming up of everything. We
are not becoming overwhelmed with a lot of incidental data. We are
specifically going to the heart of things. We are specifically going to
the core of whether we can actually get the people who are attacking
us.
When we look at the privacy report we have talked a little bit
about--the Privacy and Civil Liberties Oversight Board, a bipartisan
board that basically said very explicitly to the President that what he
was doing is illegal--it does still boggle my mind the President was
told by his own privacy board what he was doing was illegal and he just
keeps doing it. It somewhat boggles the mind that he was told by the
appellate court that what he is doing is illegal and yet he just keeps
doing it.
It is an incredible deflection. It is incredibly disingenuous when
the President says: Well, we are going to balance liberty and security,
and I am just waiting for Congress to tell me what to do. Well, he
didn't wait for Congress to tell him to collect the phone records. In
fact, we never did such a thing.
Even the people intimately involved with passing the PATRIOT Act--
those who were the cosponsors and authors of the PATRIOT Act--have all
said they never intended and don't believe the PATRIOT Act gives any
justification for bulk collection of records. So Congress never
authorized the bulk collection of records.
Two different Commissions the President has put forward--the privacy
and civil liberties as well as the review commission--have both told
him it is illegal. Yet he keeps going on.
I have heard very little questioning of the President or his people
about this. I kind of wonder why we don't ask more questions, why we
just sort of accept that a program that is said to be illegal by the
courts, a program that is said to be illegal by two different
independent commissions--why wouldn't we just stop it? Why does the
President not have the wherewithal to stop it? It disappoints me.
The program was actually begun even before the PATRIOT Act was
finalized. We did this for a couple of years simply by Presidential
edict. This is another concerning development in our country; that more
and more of our government is run by Executive edict or by Executive
order--thousands and thousands of Executive orders.
In the 1950s, we had a discussion of Executive orders. I think it is
the only time it has gone to the Supreme Court with the Youngstown
Steel case. In that case, the Court came down and said there are three
different kinds of Executive orders: There are Executive orders that
are clearly in furtherance of legislative action, and those are
perfectly legal. There are Executive orders that are debatable, whether
they further legislative action or not. But then there are some
Executive orders that are clearly in defiance of what the legislature
has done, and these are clearly illegal. And the Supreme Court struck
down what Truman had done.
I think we need to revisit that debate. Because what is happening in
our country--and it may well be the biggest problem in the country and
is part of what is going on with this bulk collection but really is
part of a bigger problem--is that power has drifted away from Congress
or has been abdicated and given up. We gave the power to the
Presidency, and we didn't do it just in one fell swoop. It wasn't just
Republicans. It wasn't just Democrats. It was a little bit of both, and
it has been going on for probably over 100 years now. I think it
accelerated in the era of Wilson, but over decades it has gotten bigger
and bigger and bigger. Under the New Deal, the executive branch grew an
alarming amount, but more recently it continues to grow by leaps and
bounds.
It may well be that the No. 1 issue we face as a country is that we
have had what some have described as a collapse in the separation of
powers. Madison talked about that each branch would have ambition to
protect their own power; so we would pit ambition against ambition and
then each would jealously guard their power, and, as such, power
wouldn't grow. Power would be checked. But power has grown. It has
grown alarmingly so and mostly grown and gravitated to the executive
branch.
In the short time I have been here, I have seen that in many ways the
least of our bureaucrats are more powerful probably in some ways than
the greatest of our legislators, and the most powerful of our
legislators are somewhat of less power than bureaucrats.
Almost every constituent that comes to talk to me from Kentucky and
has a problem with government--as we explore the problem and explore
the solution, we discover that Congress didn't pass their problem.
Congress didn't write the rule that is beleaguering them. Congress
didn't inflict the punishment that is making it difficult for them to
run their business. It was done by an unelected bureaucrat.
This has grown, and sometimes it has grown from even when we had good
intentions. We tried to do the right thing and it turned out wrong.
Probably that is really the story of Washington as well.
Take even the Clean Water Act. The Clean Water Act I support. I would
have voted for it from 1974. It says you can't discharge pollutants
into a navigable stream. I agree with that. The problem is that over
about a 40-year period we have come to define dirt as a pollutant and
my backyard as a navigable stream. So, once again, we have taken our
eye off the prize.
The things we really ought to have the government involved with--big
bodies of water, bodies of water between the States, rivers, lakes,
oceans,
[[Page S3150]]
air--there is a role for the government to be involved. But because we
have people abusing the rights of private property owners and saying,
if you put dirt in your backyard, we will put you in jail, it has
become sort of to the point of craziness. But it is all executive
branch overreach.
There was a case that went to the Supreme Court a few years ago in
Idaho. A couple lived near a lake but about a mile from a lake. They
didn't live on the lake. It was on an incline, and there were houses on
both sides of their property. So they bought their property and started
doing what everybody else did--back-hoeing, creating a footprint,
filling it and putting down footers.
The EPA showed up and said: You are destroying a wetland, and we are
going to fine you $37,000 a day.
They were kind of like: Well, I thought if it were a wetland, there
would be water or standing water or it would look like the Everglades
or there would be some sort of evidence that it was wetlands.
The EPA said: Yes, there is evidence. If any one of 300 different
species of plants grows in your backyard, we can define it as a
wetland. If we can take leaves and flip the leaves over and they are
black on the bottom, it indicates there is moisture on the leaves and
you could be a wetland.
This all came out of crazy executive overreach. We did not do any of
that. Congress did not do one iota of this expansion. It was done some
by these law courts--these EPA courts--but it was done a lot by
executive definition of what a wetland is.
In the early 1990s, under a Republican President, we redefined
wetlands. They commissioned a book--a 150-page book, 200-page book--and
they just redefined what a wetland was. By redefining what a wetland
was, we doubled the amount of wetlands in the country overnight--not by
preserving land but by redefining a lot of land that really is not a
wetland.
Now, through the waters of the United States, we are connecting
everybody to the ocean somehow and saying that every bit of land is
somehow connected to navigable water.
I was talking to one of the Senators from Idaho a year or so ago and
I liked what he told me. He told me: In Idaho, we have a very precise
definition of what a navigable stream is. You put a log in of a two-
inch diameter, and it has to float 100 feet in a certain period of
time. I just loved the definition of it because that sounds like a
stream that is probably moving and there is water in it. But we now say
a crevice in the side of a mountain, if when it rains water goes over,
it is a stream. But as a consequence, we are shutting down America.
People complain about jobs, but they are all for these regulations,
and then they complain that they don't have a job.
One gentleman decided he was going to put dirt on his land in
Southern Mississippi. It was what he considered to be uplands. There
were trees growing on it, so usually trees are not really a typical
feature of wetlands. His daughter was 43 at the time and he was 70.
They were going to develop the lots and sell the lots, and so he dumped
some dirt there. The EPA got involved and they convicted him using the
RICO statutes. This is what you are supposed to get gangsters and drug
dealers with. It was conspiracy. They got him for conspiracy to violate
the Clean Water Act by putting clean dirt on his own land where there
was no water to begin with. He was given 10 years in prison. He just
got out of prison about a month ago. He is now 80 years old. That is
what is happening in America.
So if you wonder why some of us are worried about our records being
snatched up, we are worried that our own government has run amok, that
our own government is out of control, and that our own government is
not really paying attention to us.
To put a 70-year-old man in prison for 10 years for putting clean
dirt on his own land--the person who did that ought to go to jail. They
ought to be put in a stockade, publicly flogged, and made to pay
penance for a decade for doing something so stupid.
But the thing is this is going on.
A guy named John Pozsgai was a Hungarian immigrant. He came here from
communism and he loved our country. He worked hard and he had a
mechanic shop in Morristown, NJ. It wasn't in the greatest part of
town. It was a commercial part of town. Across the street from him was
a dump. It did flood on occasion, but the reason it flooded was because
the ditches were full of 7,000 tires. People were just throwing all
kinds of crap there. There were all kinds of rotted-out automobiles. It
was a junkyard, so they had thrown all this stuff out there.
He bought the land pretty cheaply because it was a junkyard, and he
decided to clean it up. He picked up 7,000 tires. He picked up all the
rusted automobiles. And, lo and behold, when he cleaned the drainage
ditches, it no longer flooded. But he started putting some dirt on
there and the government said he was breaking the law and that he was
once again contaminating the wetlands. He was a Hungarian and he didn't
like to be told what to do, and I can understand the sentiment. So he
just kept putting dirt on there. He decided to do it at night, and they
caught him because they spent--I don't know--a quarter million dollars
on cameras and surveillance to catch a guy putting dirt on his own
land.
He was bankrupted. They put him in jail for 3 years, they fined him
200-and-some thousand dollars. They wiped him out so he couldn't pay
the taxes. They broke his spirit. I met his daughter. It is just a
tragic case.
So if you wonder why some of us are worried about the government
having all of our records--
I talked earlier about what happened in Westchester, and this is an
appalling thing. This should make you concerned about having records.
In Westchester--I think that is where the Clintons live. Anyway, they
decided they would reveal all the gun records. So in Westchester they
revealed whether you had a gun or didn't have a gun and where you
lived.
Can you imagine how that might be a problem? Let's say you are a wife
who has been beaten by your ex-husband and you live in fear of him and
you either have a gun or you don't have a gun. Either way, you don't
want your ex-husband to know where you live. And particularly if you
don't have a gun, you don't want your ex-husband who beat you to know
you don't have a gun.
Think if you are a prosecutor or a judge. They get threatened by the
people they put in jail. Would you want your name in the paper with
your address and that you have a gun or don't have a gun?
So you can see how privacy is kind of a big deal. Privacy can mean
life and death in that kind of situation.
I think we ought to be more cognizant of what a big deal this is and
what a big deal the Bill of Rights is. We shouldn't be so flippant that
we are like: Oh, yes, whatever. We have to be safe. Maybe we catch a
terrorist, maybe we don't, but we have to do this and we just have to
give up some of our freedom to be secure.
It turns out, though, when we look at the objective evidence, it
doesn't appear we are safer. It appears that when they have alleged
that we are safer, what has happened is that it doesn't look like we
have gotten any unique intelligence from these things.
I think there is probably nothing more important than discussing the
Bill of Rights and talking about our civil liberties. I think we need
to have an adequate debate. It is supposed to be what the Senate was
famous for.
My hope is that from drawing some attention to this issue today we
will get an agreement, and that is the agreement we are going to ask
for. We are going to ask for an agreement from both parties to allow
amendments to the PATRIOT Act, and we could start any time they are
ready. If somebody wants to send a message to the leadership that if
they are ready to come out and allow debate and allow amendments on the
PATRIOT Act or a promise to do this before the expiration, we could
probably get something moving.
I think the American people are ready for that debate. We can look at
the statistics, particularly among young people. It is a 70- to 80-
percent issue, where young people are saying, for goodness' sake, we
don't want our records scooped up and backed up by the government
without any suspicion.
I think also young people get this more than others because they are
used to their records being digital, they are used to their records
being on their phone. They are very aware that their
[[Page S3151]]
records are stored on a server somewhere, and they have grown to expect
privacy.
Some say, oh, that is crazy. Young people share their information all
the time. Well, you do and you don't. I share my information when I buy
things online, but I am sharing it through an agreement. The people I
share it with, the companies that then market other things to me, have
agreed, through a privacy agreement, not to share my information, not
to sell my information. I am to be anonymous. They will market to me,
but they promise to keep me anonymous. We are comforted by the fact
that we have a privacy agreement, and that if millions of people sued
them, they couldn't get away with revealing our information.
What I don't like about some of the different things we are doing--
and this includes the USA Freedom Act--is that we give liability
protection. When we give liability protection, I think it is an
invitation to say: You know what. Your privacy agreement isn't really
that important, and if you breach it, nobody is allowed to sue you. So
I think that is something we ought to be very careful with, and if we
do end up having a debate on this and we do end up having amendments on
this, that we consider taking out the liability protection.
I also think the most important thing is if we decide that bulk
collection is wrong, we need to understand how you get bulk collection.
You get bulk collection because you have a nonspecific warrant. You
don't have an individualized warrant; you have a general warrant.
This is what we have been fighting since the time of John Wilkes in
1760 in England, to James Otis in the 1760s here through John Adams.
The debate and the thing that we found most egregious, the thing that
we found most objectionable was the idea that a warrant for your
information wouldn't have your name on it, it wouldn't be
individualized or that it wouldn't be without suspicion or that it
would occur without a judge's warrant. It really was one of the things
that annoyed us more than anything else. One of the things that Adams
said was the spark of our war for independence was just the sheer gall
of British soldiers coming into our house without a warrant because
most of the records are in your house. We don't see basically the
physical and abrupt entry into your house anymore, but it happens
nonetheless. It happens in just less of a physical way because your
records are virtual now. But how we let people come into our house is
pretty important.
On the issue of warrants--this isn't specific to the PATRIOT Act, but
it is a related issue. The issue is whether we should allow people to
come into our house in the middle of the night with what is called a
no-knock raid. The sneak-and-peek, they come in and leave. But the no-
knock raid, you know they are there when they come. The problem is that
people were being woken up in the middle of the night and they were
grabbing their gun by their bedside. If they are in a high-crime
neighborhood, they have a gun by their bedside and they are sometimes
shooting the police. Mostly they are looking for drugs. I hate drugs
about as much as anybody. I have seen addiction to drugs, I have worked
with people as a physician and I know what it is like. But the thing is
that barging through doors in the middle of the night leads to
accidents in both ways: Police get shot; police accidentally shoot the
victims sometimes.
In Modesto, I think in 2002, they burst into a home at 1 or 2 in the
morning, yelled and screamed: Everybody get on the ground. There was an
11-year-old kid. He got on the ground, and the officer's shotgun
accidentally discharged. It was an accident, but it didn't help the
kid. He died.
The thing is, do we really need that? Do we need to come in the
middle of the night looking for marijuana or any kind of drug? Couldn't
we come in the daytime and knock on the door and say: We have a
warrant.
I know police work is not without risk and people do shoot back at
them. So I understand where they are coming from, and I want to protect
them and for them to be safe. I want to protect the police, but I
actually think it protects the police more if we go in the way we do
with traditional warrants and not without unannounced warrants.
Of course, there are different circumstances or exigencies. There are
times when the police go in without any warrant at all. If there is
something imminent going on or some threat of a danger or situation
inside, the police go in. I think, for the most part, we are better off
if we do things and do them in the traditional way with warrants.
When we talk about how warrants have changed, one of the changes is
the standard for what the warrant is issued with. Even if it were
individualized, if it says that you only have to say they are relevant
to an investigation. That is a big step down from probable cause.
People have defined ``probable cause'' over time in different ways.
This is from Ballentine's Law Dictionary. A common definition of
``probable cause'' is ``a reasonable amount of suspicion, supported by
circumstances sufficiently strong to justify a prudent and cautious
person's belief that certain facts are probably true.''
Some lawyer must have written that. But you can kind of get a little
bit of understanding that we are supposed to go through some kind of
thought process and there is supposed to be evidence of suspicion. It
is not the standard of proving guilt, proving beyond the preponderance
of the fact or any kind of doubt. It is a standard, and it is a
standard we have had for a long time.
The Oxford Companion to American Law defines ``probable cause'' as:
``Information sufficient to warrant a prudent person's belief that . .
. evidence of a crime or contraband would be found in a search.
`Probable cause' is a stronger standard of evidence than a reasonable
suspicion, but weaker than what is required to secure a criminal
conviction. Even hearsay can supply probable cause if it is from a
reliable source or supported by other evidence.''
It is kind of interesting because people are so worried about getting
a warrant, even a warrant can be supported by someone making an
accusation. It is not perfect. In fact, there are some people who
complain warrants are too easy to get. But the thing is there is no
evidence that it is really overly hard to get a warrant. If we went
back to the Constitution--I had this debate years ago the last time I
came up for renewal, and I was walking along with one of the other
Senators who supported the PATRIOT Act. He acted as though, you know
what, if it expires at midnight, what will we do? My response was maybe
we could live with the Constitution at least for a while. We did for
hundreds of years.
Is there anything so unique about the times we live in that we could
not still live under the Constitution? The Fourth Amendment has its
origins in English common law. The saying that a man's home is his
castle, this is the idea that someone has the right to defend their
castle or home from invasion from the government.
Based on the castle doctrine in the 1600s, landowners first recorded
legal protection from casual searches from government. Some of the
famous cases are actually in the 1760s, but even at least 100 years in
advance of that, they were beginning to develop protections for people
from the government.
It is interesting to realize this is not a new phenomenon where we
are talking about protecting ourselves from government. We protect
ourselves and government helps us protect ourselves from others who may
be violent against us. But we have always--for hundreds and hundreds of
years--been aware that government does bad things too. If you do not
ration the amount of power you give to government, you can get to the
point where the great abuse comes from government itself. So they began
to use warrants. But in England the debate quickly developed over
whether a general warrant was adequate or a specific warrant. This is
where John Wilkes comes in. This is where James Otis comes in.
One of the debates over the separation of powers that we have--this
is pretty commonly going on, although I think the people who believe in
unlimited inherent powers are probably the majority of Washington. But
there is a debate over what people call article II powers. The article
II is where the Executive is given powers under the Constitution, but
there are people who sort of believe in this unlimited nature. There is
really nothing that restrains
[[Page S3152]]
it. In fact, some have said even in the debate over this, the Executive
Order No. 1233 that is involved in some of this records production, it
is really none of our business because it is article II. It is part of
the inherent powers of the President to, in times of war or times of
conflict, to do whatever they need to do.
I think that is a dangerous supposition, to think that really there
are times when there are no checks and balances. I personally think
probably one of the most genius things we got out of our Founding
Fathers was the checks and balances and the division of power.
Montesquieu was one of the philosophers the Founding Fathers looked
to and some say when we were setting up the separation of powers that
he was probably where we got the example. Montesquieu said that when
the Executive begins to legislate, a form of tyranny will ensue because
you have allowed too much power to gravitate to one body and you have
not divided the power. The division of power was one of the--if not the
most important--the most important things we got from our Founding
Fathers. But we are having this collapse of the separation of powers.
It is getting to be where there is an ancillary body which is Congress,
and then there is the executive branch, the behemoth, the leviathan.
The executive branch is so large that really the most important laws
in the land are being written by bureaucrats. No one elects and no one
can unelect. In an average year, there are over 200 regulations that
will cost the economy $100 million apiece. We do not vote on any of
them. We vote indirectly for the President, but I think that is so
indirect that it is a real problem.
I think what we have now is an executive branch that legislates. The
collapse of the separation of powers is a collapse of the equilibrium.
This equilibrium is what kept power in check. When I think who is to
blame for this, it is not one party; it is really both parties.
When we have a Republican in office, Republicans tend to forgive the
Republican President and give them more power. When we have a Democrat
in office, the Democrats tend to forgive a Democrat and give the
Democrat more power.
A more honest sort of approach to this or a more statesman's like
approach to this would be that if we were able to have both parties
stand up as a body and if there were pride in the institution of
Congress--pride such that we were jealous of our power, that we were
pitting our ambition to keep our position against the President
regardless of the President's party affiliation--then we might have a
chance.
A lot of the things about collection of bulk data were not known for
years and years but have been going on for a long time. One of the
things I found most troubling in the John Napier Tye op-ed was that he
said--he was giving a speech and he said: Well, the good news is that
if the American people are upset, if they are upset about things,
intelligence activities, and they think it is an overreach, they have
every opportunity to use the democratic process to change things. This
went through the White House censor and the White House censor--
counsel, adviser, boss--decided they needed to take that out of his
speech because they did not want to imply, really, that intelligence
activities could be changed through democratic action, because they
took the opinion apparently that the inherent powers of article II are
not subject to democratic action.
When I think of the people who say that the inherent powers are
unlimited and the President has these powers that are not to be checked
by Congress, I do not think of a Presidency. I think of a different
word, and it is not ``President.''
I am very concerned about whether we are going to let this go on.
There are some other side effects that come from this. As you allow the
executive branch unlimited power and as you allow the bureaucracy to
grow, a consequence or a side effect has been that the debt has grown
to alarming proportions. We borrow about $1 million a minute. We have
an $18 trillion debt. As the debt has grown larger and the executive
branch has grown bigger, your Congress men and women have grown more
ancillary and more peripheral to the entire process. But I am one who
believes there are limits. I think there is a limit to how much debt we
can incur and how rapidly we can incur it.
I think already we have seen sort of an anchor or a burden, an effect
on the economy that pulls us down and causes growth to be less vibrant.
Some say 1 million jobs a year are being prevented from being created
because of this.
I think that if we are not careful, this collapse of the separation
power, this collapse of equilibrium, as we let this get away from us,
we are also getting away from the control over our future. We are
letting the power accumulate in such a rapid fashion that if you want
to see how much power is accumulating, you can almost make the analogy
of looking at the debt clock. If you go to debtclock.org and watch the
debt spiraling out of control, as the debt grows larger and larger, you
basically are seeing a diminishment of a corresponding diminishment of
your freedom. It is of concern.
It is of concern how rapidly this is happening. There are two
philosophic reasons we should be concerned about power. One is that
power corrupts. More basic than that is that as power grows, there has
to be a corresponding loss of your freedom. I call this the liberty
argument for minimizing government. Thomas Payne made this argument.
Thomas Payne said that government is a necessary evil. What did he mean
by that? I think what he meant by that is that you need government. We
need government for a stabilizing force. There are things government
needs to do. But it is a necessary evil because you have to give up
your liberty to have some government. How do you give up your liberty?
You give up some of what you earn. Your liberty is who you are. Your
liberty is what you produce with your hands, and your liberty is what
people will pay you to do with your hands, what you do to produce. That
is your income. That is you. That is your liberty.
If we have 100 percent taxation, I would say you have no liberty. You
are essentially a slave to the State. If you have 50 percent, you are
only half slave, half free. The thing is that the smaller your
government, the lower your taxation and the more free you are. But it
is an argument for, if you are concerned about freedom, you would want
as small a government as you possibly could have that still did the
things that you think are necessary.
The other argument I like for why you should keep your government
small is what I call the efficiency argument. The efficiency argument
was best expounded by Milton Friedman, who said that nobody spends
somebody else's money as wisely as their own. There is sort of a truism
to that. You think about it in your own life. If I ask you for $1,000
to invest in a business enterprise, you will think: How long did it
take me to earn $1,000. You will think: I had to pay taxes, I had to
save, I had to pay all my expenses to get this $1,000. You will think
how much you prize that, and you will not make the decision in an easy
fashion. You will make your decision not perfectly, but if you compare
your decision spending your money to a politician spending the money,
it is just bound to be a wiser decision. It is a more heart-wrenching
decision. It ends up typically being a better decision. If you ask a
politician for $1 million, that might be equivalent to $1,000 or it
might not mean anything to him. You might ask him for $10 million.
Think about it this way: We gave $500 million to one of the richest
guys in our country to build something that nobody seemed to want, and
he lost all of the money. And you think to yourself, do you think the
person in the Department of Energy that gave $500 million to one of the
richest guys in the country to build something we didn't want feels bad
or doesn't sleep well at night? No. I think they gave that person the
money because that person was a big contributor. They were an activist
for their candidate, so when the candidate got in power, they used the
Department of Energy as their own personal piggybank to pass out loans
to their friends. Nobody feels bad about the fact that they lost the
money because it wasn't their money. It is the efficiency argument for
why you should think the government should be small.
[[Page S3153]]
Before the PATRIOT Act, there was something called Stellar Wind. This
was a secret also, and we didn't learn about this for many years, but
this was started immediately after 9/11 and was revealed by Thomas Tamm
at the New York Times in 2008. But it was basically a prelude to the
bulk collection we are having now.
The amazing thing about bulk collection is none of this is new. It
has been going on now for 14 or 15 years. It doesn't make it any less
objectionable, but it is not new. We have now had bulk collection under
two different administrations. One administration got a great deal of
grief for this, and then the next party ran and said: We are going to
change these things and do things differently. And they did them the
same or more so. There really had not been any change, and I guess that
is why some people are concerned as to whether we will truly get
change.
The program's activities in Stellar Wind involve data mining of large
databases of communications of American citizens, including emails,
telephone conversations, financial transactions, and Internet activity.
William Binney, a retired leader within the NSA, became a whistleblower
because he believed these programs to be unconstitutional.
The intelligence community was also able to obtain from the Treasury
Department suspicious activity reports. So we are back to these banking
reports that are issued.
If we decide to fix bulk records and try to do something about this
injustice, the main thing is we should be aware that this is not the
only program. There are probably a dozen programs. There are probably
another dozen we have not even heard of that they will not tell any of
us about. And realize that they are not asking Congress for permission;
they are doing whatever they want.
We did not give them permission under the PATRIOT Act to do a bulk
collection of phone records. They are doing it with no authority or
inherent authority or some other authority because the courts have
already told them there is no authority under the PATRIOT Act. There is
also no commonsense logic that could explain--no commonsense logic that
could say there is a relevancy to all the data of every American.
When Stellar Wind came about, there were internal disputes within the
Justice Department about the legality of the program because the data
was being collected for large numbers of people, not just the subjects
of FISA warrants. The Stellar Wind cases were referred to by FBI agents
as pizza cases because many seemingly suspicious cases turned out to be
food takeout orders. Imagine also that if we are looking for
interconnecting spots, a lot of people order pizza.
According to Mueller, approximately 99 percent of the cases led
nowhere. Nevertheless, internal counsel for the administration said
that because the Nation had been thrust into an armed conflict by
foreign attack, the President has determined in his role as Commander
in Chief that it is essential for defense against a further attack to
use these wiretapping capabilities within the United States. He has
inherent constitutional authority to order warrantless wiretapping.
The memo goes one step further. It says that the President has the
inherent constitutional authority to order warrantless wiretapping--we
are talking about warrantless, not any kind of a subpoena--an authority
that Congress cannot curtail.
If we really believe bulk collection is wrong and if we really
believe we need to be a check and balance on the President, we should
just be getting started with reining him in on bulk collection because
the President--this was the previous administration--says these
authorities they are using cannot be curtailed by Congress. If you talk
about a Presidency that has powers that are not checked by Congress, I
don't think you are talking about a Presidency here. There is another
name for that kind of leader, but it is not ``President.''
The argument here is astounding. The argument here is that they can
collect anything they want without a warrant because the President has
the inherent constitutional authority to order warrantless
wiretapping--an authority Congress cannot curtail. I think that is
alarming.
A few years later, the Office of Legal Counsel came back--this is
also from the administration--and concluded that at least the email
program was not legal, and then-Acting Attorney General James Comey
refused to reauthorize it.
William Binney, a former NSA code breaker whom we have talked about
and who is a whistleblower, talked about some of the activities of the
NSA and said they have highly secured rooms that tap into major
switches and satellite communications at both AT&T and Verizon.
The article--I believe this was the New York Times--suggested that
supposedly dispatched Stellar Wind--supposedly they were no longer
doing this--continues as an active program. This conclusion was
supported by the exposure of room 641A in AT&T's operation center in
San Francisco in 2006. It gets back to the trust factor.
The Director of National Intelligence said they were not collecting
any bulk data, but he wasn't telling the truth. They tell us Stellar
Wind ended back in 2005 or 2006, but then we find a room at AT&T that
is still hooked up directly to the NSA.
I would like to see the phone companies be better defenders of our
privacy, but with the PATRIOT Act, we gave them immunity. Even if there
were some individuals in the phone companies who cared about your
privacy and thought your phone conversations should be protected, why
do it? You can't sue them. If you have a privacy agreement with your
phone company, they don't care. Nobody can sue them. You have no
protection. You have no standing in the court to protect yourself. That
is one of the problems with the USA FREEDOM Act, is that we are giving
liability protection once again to the phone companies for something
new.
One question I would ask, if there was anybody who would actually
tell me the answer, would be, if we already gave them liability
protection under the PATRIOT Act, why are they getting it again under
the USA FREEDOM Act unless we are asking them to do something new that
they didn't have permission for?
The other thing about the USA FREEDOM Act is that if we think bulk
collection is wrong, why do we need new authorities? Why are we giving
them some kind of new authority? Are we restricting our authority in
section 215 of the PATRIOT Act on one hand and then expanding it on
another?
I think when people are dishonest with you, you are right to be
doubtful and you are right to try to circumscribe and to put their
power in a box so you can watch them and make sure they are honest.
In June of 2013, the Washington Post and the Guardian published an
article from the Office of the Inspector General--a draft report dated
March of 2009 that detailed the Stellar Wind Program. So in 2009, there
was evidence that Stellar Wind was still going on. And realize that
Stellar Wind is not what we are talking about. Stellar Wind would be
other bits of information that are being collected beyond your phone
records.
I think if we had somebody here or if we had somebody who would
honestly tell us, I would sure like to know if they absorb and collect
all of our credit card information. I have a feeling it is probably
done. I don't know, and I have not been told, so I am not revealing a
secret. I guess it is done. I am guessing all of your records are
collected because the thing is, we have the audacity of the executive
branch saying they have inherent constitutional authority to do
anything they want, to order warrantless wiretapping. According to the
executive branch, they have an authority that Congress cannot curtail.
That doesn't sound like the Office of the Presidency to me; it sounds
like a governmental official whom you have no control over. It sounds
inconsistent or antithetical to a constitutional republic. How can you
have a Presidency that has unlimited power? That is what they are
telling you.
They are telling you it is in the service of good. We are going to
catch terrorists, and we are going to do good things. We are going to
look at all of your information, but we are never going to abuse your
privacy.
During September 2014, the New York Times asserted, ``Questions
persist
[[Page S3154]]
after the release of a newly declassified version of a legal memo
approving the NSA Stellar Wind program, a set of warrantless
surveillance and data collection activities secretly authorized after
2001.'' The article addressed the release of a newly declassified
version of the 2004 memo. Note was made that the bulk program--
telephone, Internet, and email surveillance of American citizens--
remained secret until the revelations by Edward Snowden and that to
date, significant portions of the memo remain redacted in the newly
released version as well as that doubts and questions about its
legality continue to persist.
When we go back to the Privacy and Civil Liberties Oversight Board,
as they get closer to their conclusion, they talk once again about the
idea that you are only hearing one side. I think that no matter how
honest and no matter how patriotic people are, one side just won't do
it. You can't find the whole truth when only the government presents
their position. The Privacy and Civil Liberties Oversight Board said
that the proceedings with only one side being presented raised concerns
that the court does not take adequate account of positions other than
those of the government. They recommended the creation of a panel of
private attorneys and special advocates who can be brought into cases
involving novel and significant issues by FISA Court judges.
I think this would be a step in the right direction, but I think also
that what we need to do is we should really probably give you the
ability to have your own attorney. If this is a court proceeding, I
think you need your own attorney so you have somebody who works for you
and is your advocate. But a special advocate would be better than what
we have.
The Board goes on to conclude that ``transparency is one of the
foundations of democratic governance. Our constitutional system of
government relies upon the participation of an informed electorate.
This in turn requires public access to information about the activities
of the government. Transparency supports accountability.''
I could not agree more. It is even more important when we talk about
the intelligence agency because of the extraordinary power we give to
these people, the extraordinary power we give them to invade our
privacy and to have tools to invade our privacy. We have to trust them,
so there needs to be a degree of transparency. But transparency doesn't
have to involve state secrets. It doesn't have to involve codes or
names. But the transparency needs to involve what they are doing. Do we
think any terrorist in the world doesn't realize that all of the
information is being scarfed up? It is not a secret that they are doing
this.
So we should have an open debate in a free society about how it
should be done and whether we can gather information in a way that is
consistent with the Constitution.
When we get to the Privacy and Civil Liberty Board's recommendations,
they have several good recommendations.
No. 1, the government should end its section 215 bulk telephone
records program, period. They say that the program as it is constituted
implicates constitutional concerns under the First and Fourth
Amendments. This is the President's Privacy and Civil Liberties
Oversight Board.
Without the current section 215 program, the government would still
be able to seek telephone calling records directly from the
communications providers through other existing legal authorities. I
think the other existing legal authorities could be the Constitution.
Could we not just call a judge and get a warrant and go down to the
phone company and get what we want? I think there is a way we can do
this that is still consistent with the Constitution.
(Mr. GARDNER assumed the Chair.)
The other recommendation they have, other than ending the program, is
that when the bulk collection program is ended, the records should be
purged so there is no chance that this can be abused again in the
future.
One of the arguments for the NSA has been that they collect the data,
it is in a database, but it is only accessed when they have what they
call reasonable, articulable suspicion.
One of the recommendations of the privacy board, though, was that
they not be given the ability to judge whether there is reasonable,
articulable suspicion; that it would actually go to an independent
judge to determine that. So the recommendation of the privacy board was
that these should go to the review of the FISA Court before they are
able to query the database.
There are many different groups who have been fighting for our
privacy in this country, and it is a coalition of people both from the
right and from the left. We have seen it today as different Senators
have come to the floor. We have had Senators from the Republican Party
as well as from the Democratic Party. We have had those from the right,
from the left, conservatives, libertarians, and we have had
progressives. There has been a combination of folks who also have one
thing in common, and that is the belief that the Bill of Rights should
be protected.
Among the private groups who have done a good job with this is
Electronic Frontier Foundation. They have been one of the groups who
have done a good job. In one of their newsletters, they quote Ron
Wyden, who says: We have not yet seen any evidence showing that the
NSA's dragnet collection of America's phone records has produced any
uniquely valuable intelligence.
Patrick Eddington writes for CATO. CATO is another group who has been
a good supporter of privacy. In an article that talks about the
upcoming battle from a couple of weeks ago, he writes--this is on the
USA FREEDOM Act, and this is sort of the big debate because many people
on both sides of the aisle think the bulk collection of records is not
constitutional. We think it exceeds the government's power and it
exceeds the Constitution. But what many are proposing to replace it
with is the USA FREEDOM Act.
This is what Patrick Eddington writes: The USA FREEDOM Act claims to
end the controversial telephone metadata program, but a close reading
of the bill reveals that it actually leaves key PATRIOT Act definitions
of ``person'' or ``U.S. person'' intact, so a person is defined as any
individual, including officer or employee of the Federal Government, or
any group, entity, association, corporation, or foreign power.
So the question I have is, it sounds good that we are going to make
the definition of whose records we go after when we say it is going to
be a specific U.S. person. The problem is that we then define
``person'' as ``corporation.'' So we get back to the same argument: If
we are going to search the database of all of a person's phone calls
and we say that a person is Verizon, we are again stuck collecting
everybody's records.
What I don't want to have happen and what I won't be able to support
is a bill that becomes bulk collection of a person's records, just
under a different venue. I am not sure that one's privacy has been
protected more if it were now just asking the phone companies for bulk
collection where we were taking their data, sourcing it, and getting it
from the companies after they gave it to the government. I am just not
sure if it is that much--distinctly different.
In the USA FREEDOM Act, they talk about the idea that we will get
special advocates, and I am for that. I think that is a good idea. But
Patrick Eddington points out a flaw. He says that the FISA Court has
sole discretion to appoint or not appoint these amicus curiae or these
special advocates. So it could be that a FISA Court that really has not
been too inquisitive, a FISA Court that has determined that all of your
records are somehow relevant, may not be the most inquisitive to
appoint an advocate for you if they have been able to define
``relevance'' as meaning all of the records.
Another deficiency of the USA FREEDOM Act is that it does not address
bulk collection under Executive Order 12333. The bill also fails to
address bulk collection under section 702 of the FISA Amendments Act.
One could say: What are you complaining about? You are getting some
improvement. You still have problems, but you are getting some
improvement.
I guess my point is that we are having this debate, and we don't have
it very often. We are having the debate every 3 years, and some people
have tried to make this permanent, where
[[Page S3155]]
we would never have any debate. Even though we are only having it every
3 years, it is still uncertain whether I will be granted any amendments
to this bill.
So, yes, I would like to address everything while we can. I think we
ought to address section 702. I think we ought to--for goodness' sake,
why won't we have some hearings on Executive Order 12333? I think they
may be having them in secret, but I go back to what Senator Wyden said
earlier. I think the principles of the law could be discussed in
public. We don't have to reveal how we do stuff. Do we think anybody in
the world thinks we are not looking at their stuff? Why don't we
explore the legality and the law of how we are doing it as opposed to
leaving it unsaid and unknown in secret?
Part of our secrecy is sort of backfiring on us also because what is
happening is in keeping this secret, people believe the worst.
Everybody around the world believes the worst about it. Everybody
around the world believes that they are having all their stuff looked
at, that their emails are being looked at. So if you are a
businessperson in Europe and you are trying to negotiate a secure
deal--a deal where you don't want your competitors to know what you are
offering to buy a certain company--I would think you probably wouldn't
use American email, and I would guess that is what is happening.
American companies are starting to try to figure out a way around
this, are trying to offer encryption. What does the government do? The
President's administration is all over the airwaves, all over
Washington, all over the place talking about how the companies are
somehow evil for wanting to encrypt their data.
I saw the Secretary of the Department of Homeland Security in my
committee the other day, and I said: You realize it is your fault. Is
it the companies' fault that they are trying to protect their
information for their customers? They are trying to make a living. It
is your fault for bullying them and stealing their information and
stealing all of Americans' information. We are simply reacting to the
bully that you are.
Most of the issues Patrick Eddington points out in his piece are
issues that we actually have amendments for that would make the bill
stronger. So if there are arguments that maybe the USA FREEDOM Act
could be made better--definitely reauthorizing it by itself is a big
mistake, but if alternatives are going to be offered, maybe we could
try to offer alternatives that make the USA FREEDOM Act better.
The other idea Patrick Eddington puts forward is that there is no bar
on the government imposing backdoors being built into electronic
devices. That is what we have talked about before, that the government
is mandating to different companies that they have to have access to
their product.
I think it is an under-discussed development that the companies are
going to be more at risk for sabotage by foreign countries, foreign
governments, and sabotage from hackers if they build a portal. So if
the government says ``We need a portal to stick our big nose in your
business and suck up all your information,'' my guess is that
sophisticated hackers and sophisticated foreign governments will say
that most of American software now has a flaw, and the American
Government is getting into it. What do we think these people will do?
They will develop programs to look for the flaws and churn through
until they find our flaws.
It is the opposite of what we should be doing. We should be trying to
keep foreign governments, foreign snoopers, and foreign competitors out
of our stuff, including the U.S. Government, but we are doing the
opposite.
There is a lot left to be desired with the USA FREEDOM Act. I try to
be supportive of moving forward, but I can't support it unless we are
able to incorporate some of the other ideas I think are necessary.
The people say we are just not doing enough. This week, many have
come out and said: We have to collect more data. We are only collecting
a third of the data. We have to get more data.
The interesting thing is that we are spending $52 billion a year on
intelligence in our country--$52 billion. We are spending $10 billion
in the NSA alone. It is $167 per person in the United States. I think
it is hard to argue we are not doing enough already. I think the
argument can be made, though, that we are doing it in such a haphazard,
all-collecting, all-consuming, indiscriminate way that maybe we are not
getting the best bang for our buck.
There have been many groups out there. We mentioned Electronic
Frontier Foundation, TechFreedom, Liberty Coalition, GenOpportunity,
Competitive Enterprise Institute, FreedomWorks--a lot of different
groups from right and left that are opposed to this bulk collection of
data.
There is an interesting article recently written by Anthony Romero
with the ACLU, and the title of it is ``The Sun Must Go Down on the
PATRIOT Act.'' In it he refers back to both of the review groups we
talked about and the Privacy and Civil Liberties Oversight Board, and
he says and reiterates a point that is incredibly important, that
``there was no evidence at all that the NSA's massive surveillance
program had ever played a pivotal role in any investigation.''
I think we ought to be able to figure out something from this, and we
ought to be able to learn that not only is there a constitutional
question of this, there is also the question of whether practically it
is doing anything to make us safer. If it is not making us safer, it is
extraordinarily expensive and we are losing our freedom in the process.
Why don't we shut it down?
Different advocacy groups for a variety of opinions have put forward
the idea that I think was represented in the NAACP v. Alabama. I
believe this was back in the seventies, which set forth a First
Amendment claim, and this claim is that there is a vital relationship
between freedom of association in privacy in one's associations. The
point is that sometimes when you are protesting either for or against
something that is very unpopular, sometimes you even worry about your
safety. There were people who lost their lives in the freedom movement,
in the civil rights movement. There were people who lost their lives.
And you can understand how in those days people might have been worried
for anybody to know they belonged to the NAACP or they opposed the Jim
Crow laws in the South. But it was an important case because it talks
about how the fact is that information can be kept private and should
be kept private for fear it will chill speech, for fear it will put a
damper on who people would associate with, for fear that it would put a
damper on dissent, which is a fundamental aspect of a Republic.
In a letter from a couple weeks ago from some congressional leaders,
they point out something that I think bears repeating. Mass
surveillance, the bulk collection, harms our economy. Mass surveillance
will cost the digital economy up to $180 billion in lost revenue by
2016.
We are not getting any new bad guys with this, we are abrogating
privacy, and we are losing money.
The Internet companies in our country, the whole software world, the
whole hardware, all of this, have been some of America's greatest
triumphs, some of America's greatest ingenuity. Yet we are willing to
squash all that in a battle that really is going to damage our privacy,
isn't helping us in the war against terrorism, and is going to make it
such that nobody in the world is going to want to buy American
products. I think it is a disgrace and, once again, I don't think it is
purposeful. Nobody wants to harm our companies, but I think it is just
another unintended consequence--a bad policy not thought through.
The ACLU commentary on the USA FREEDOM Act has come up with some
ideas of things they think would make the bill stronger. One, they say
the bill could be amended to prevent surveillance of individuals with
no nexus to terrorism:
The 2015 USA FREEDOM Act would authorize the collection of
records and communications identified by a ``specific term''.
. . . This would stop the government from conducting
indiscriminate surveillance of virtually all citizens and
from engaging in narrower but still-egregious forms of abuse,
like the surveillance of everyone in an entire zip code or
all those who use a given communications provider, like
Gmail. However, the current SST definition is still not
strong enough to prevent ``bulky'' collection. . . .
This is the point I have been making, and this is something you need
to be very careful about in Washington, because the minute you think
you have
[[Page S3156]]
won a battle, secretly you have been beaten. You just don't know it
yet. We may still get a reform like this and then find out we are still
going to get bulky collection; that a corporation's name can be put in
the specific selector term, and--so we were worried about the
government giving us all of Verizon's records. Now we are just sending
a warrant to Verizon that has their name in it and we are getting all
of their records.
The example they put here is that you could still end up having the
surveillance of everyone in the entire ZIP Code or all of those who use
a given communications provider like Gmail. So Gmail is a specific
term. Are we not still back where we were and have we really fixed the
problem?
The ACLU goes on to say that the bill should be amended to narrow the
SST definition--the selector term--to prevent this kind of bulky
surveillance. The bill should also make crystal clear, consistent with
the Second Circuit--which has come out since this bill was written--
that section 215 cannot be used to amass Americans' records for open-
ended data-mining purposes unmoored from any specific investigation.
I think this is incredibly important. The USA FREEDOM Act wants to
take a step forward, but we need to make sure the ruling from the
Second Circuit that has already passed, that we don't do something that
either moots the case or we don't do something that actually expands
the power of 215 when the court has already restricted the power of
215.
The ACLU's second recommendation is that we should include procedures
to ensure that the government purges irrelevant information. Right now
the bill would allow the collection of irrelevant information under 215
and other authorities without minimization procedures.
This kind of reminds me--if you want to know how much information we
are grabbing up and how worried to be about it, there was an article in
the Washington Post a couple of months ago, and it said the President
had been minimized 1,227 times. We are collecting the President's data,
all right. You can say, well, we are being fair, we are getting
everybody's. For goodness' sake, we should not be collecting the
President's information. In fact, you might inadvertently have somebody
reading that who really shouldn't be reading the President's
information. We should not be collecting the President's information.
That is ridiculous. But we are minimizing the President, which means we
are finding it and sort of whitening it out and hoping nobody has read
it in the process.
There were earlier versions of the USA FREEDOM Act that included some
of these basic protections on getting rid of or minimizing irrelevant
information from bulky surveillance. This is sort of the problem. This
bill started out pretty good in the House, got out of committee, got
sort of eaten up on the floor, and wound up losing a lot of the better
stuff that was in it.
The third recommendation is what we mentioned a few minutes ago,
which is to make sure there is a strong advocacy, a special advocate;
that it is a strong advocate that goes before the FISA Court. As the
Second Circuit Court decision observes, adversarial judicial process is
vital, especially on matters as critically important as the
government's authority to spy on its citizens. This is a really
important point, the adversarial judicial process.
There are some--Judge Napolitano has written on this--and I think he
has made the point that without an adversarial process, you really
can't even have a judicial process. If you don't have people on both
sides arguing or advocating for a position, there really isn't a court.
It really is not a judicial proceeding that we can recognize as finding
justice. But the FISA Court only hears from one side, the government.
But the ACLU points out that these advocates participate solely at
the discretion of the court and can make arguments that do not advance
privacy and civil liberties.
Yet, if you are hired by the government, are you really going to be
the best advocate for privacy?
The fourth suggestion that the ACLU has to make the USA FREEDOM Act
better is that we should limit additional authorities that have been
used to collect America's records in bulk. We now know that the
government has conducted bulk surveillance not only under 215 but also
under a host of other statutes, including existing administrative
subpoena authorities.
For example, for two decades, up until 2013, the Drug Enforcement
Agency operated a program that collected the international call records
of Americans in bulk, reporting under existing administrative subpoena
laws. So here is a real question: What other authorities are we
operating under that are collecting bulk records? They are doing it
under administrative subpoena laws. They are doing it for the DEA. I
still think the more I learn about this, the more questions I have as
to how many other authorities are still collecting things. I would
still like to know, are they collecting all the credit card information
in the country? Are they doing that under Executive authority?
Are we really living in a country now where nobody in the government
questions someone when they say that under article II authority the
President can do whatever he wants and that this can't even be
corrected or challenged at all by Congress?
The fifth recommendation from the ACLU is to stop the government from
using section 702 of FISA as a backdoor to conduct surveillance on
Americans. This was one of our amendments that we also have. In fact,
most of these are amendments that I would present, if we are allowed to
present them, which is sort of the purpose for being here, for wearing
my feet out and my voice today, is that we would like to find out, Will
the leadership allow us to have amendments?
We would like to know and have an agreement that we will specifically
be allowed to offer these amendments we have worked on for 6 months to
a year now. We have waited for 3 years for the opportunity. We would
like to know, Will leadership let us have these amendments? Will
leadership allow a free and open debate over how to fix this bulk
collection program?
The backdoor thing with 702 is a pretty important thing. It is
collecting enormous amounts of data. Earlier today we talked about how
this data, that 9 out of 10 pieces of data are not about the target,
they are just incidental. I think there was one estimate that we have
had 90,000 targets, but it means that we have really had 900,000 bits
of information on other individuals collected, but it all just gets
stuck in a database. So the database keeps growing and growing and
sometimes it is intentionally so, that we want to investigate a guy
here, but we don't want to ask for a warrant, so we investigate a guy
overseas that we know already talks to the guy over here, and now we
are really investigating Americans without a warrant. So they
recommended we stop this backdoor access. This is something Senator
Wyden and I have also been in favor of as well.
Another recommendation the ACLU has is that our current laws punish
individuals for providing material support to terrorists. I have no
problem with that, but they have been used apparently to prosecute
people seeking to provide humanitarian assistance. The USA FREEDOM Act
should add an explicit intent requirement to the material support law.
There is another comment from the Sunlight Foundation by Sean Vitka,
and the title is the ``USA FREEDOM Act is about to pass through the
House--is it a step backwards?''
Sunlight and others have had major concerns about the USA
FREEDOM Act for some time. Broadly speaking, it isn't a
satisfactory level of reform given what we've learned in the
past two years about government surveillance and the immense
secrecy that surrounds it. Until last week, it's fair to say
some considered the bill a net positive, some a net negative
and that no one thought it was enough for reform.
As time has progressed, we've seen what began in 2013 as a
decent, if tunnel-visioned, compromise chipped away at,
including the transparency and accountability provisions . .
.
I think this is an important point, because the USA FREEDOM Act
started out pretty good. It got a little bit less good over time. But
think about where we are right now. It passed overwhelmingly in the
House. The majority in the Senate does not want it because they think
it lessens the bulk collection too much. So they are going to chip away
at it again. So imagine where we are going to be in the end if
[[Page S3157]]
that is what we are going to pass. I think it would be better to be
done with bulk collection. Let's be done with bulk collection. Let's
start over.
But let's not replace it with something that may end up being just as
bad. The sacrifices made in the bill in order to secure these modest
reforms grew more dramatic. For instance, the USA FREEDOM Act was
always a threat to court challenges and may have mooted the ACLU'S
tremendous court win last week, if it had passed last year. This is the
point I have been making. The luckiest thing we ever got is that we did
not pass the USA FREEDOM Act last year because the courts are probably
going to do right now a better job than legislation.
If fact, we might be better off not passing the USA FREEDOM Act and
seeing what the courts will do for us on this because there is a danger
it moots the case. But there is a danger also that it is seen as
actually giving justification for the program, which I guess is kind of
mooting the case as well. The ruling in the appellate court could
also--they are agreeing with what I just said--do more than USA FREEDOM
aspired to do, because it interprets the word ``relevance'', saying it
does not authorize bulk collection and that that word is not used in
section 215.
So I think that is a good point, that the court is saying that the
word ``relevance'' does not authorize bulk collection. So you have got
bulk collecting going on, but there is no authorization from 215 on it.
Here is the question: Is USA FREEDOM going to allow bulky--perhaps
bulk--collection, and do we wind up actually giving back more power to
the intelligence community when we are trying to limit their power? I
think we need to be very careful with what we do here.
Sunlight goes on to say--Sean Vitka:
It's unclear whether the primary goal of USA FREEDOM, the
rewriting of Section 215 to stop bulk collection, is already
accomplished and whether USA FREEDOM could open us all up to
more secret interpretations and new venues of surveillance.
I think that is an incredibly important question. Several groups that
initially supported USA FREEDOM have backed away from it. ACLU and EFF
agree that the USA FREEDOM Act as it stands now is not worthy of
support. I think some of these may be neutral on it, but they have
backed away from some of their support. Some of the concerns that Sean
Vitka talks about here are shortcomings in the USA Freedom Act. He says
that it accepts the premise that mass surveillance under these programs
is necessary, despite the findings of the congressional joint inquiry
and the 9/11 Commission to the contrary, and also despite that the
Privacy and Civil Liberties Oversight Board said it was not necessary.
Sean Vitka goes on to say that one of his other concerns is that the
USA FREEDOM Act effectively continues mass surveillance under section
215 of the PATRIOT Act through the use of multiple NSA-supplied
selector terms. So you could say that we are only going to do
individual terms, but then you do a bunch of them. By the time we do a
bunch, are we really individualizing or are we not growing it into bulk
collection?
They include the following among those selection terms--ones they are
worried about: the Internet protocol address or cloud source accounts
of entire organizations, in contravention of the Fourth Amendment's
particularized probable-cause-based warrant.
Additionally, Sunlight goes on to point out what I pointed out as
well, that the term ``person'' is not defined as an individual natural
person, and the bill does not alter the PATRIOT Act's original
definition of person, which includes any individual, officer or
employee of the Federal Government or any group, entity, association,
corporation.
You know, I really feel what we could be doing back here is--we think
we won. We get the USA FREEDOM Act, and then 2 years from now, we find
out they are plugging the name ``Verizon'' into their selection term
and they are still collecting all the records from Verizon. So I think
unless you can limit this to an individual, a natural person, I think
really this is one of the biggest problems we have with the USA FREEDOM
Act at this point.
Sean Vitka goes on to say that there is a concern that it expands the
corporate immunity. We have discussed that as well today--that by
removing that companies act in good faith, we also are going to pay the
companies now to do this as well.
Judge Napolitano wrote about this just the other day, May 14. He
writes:
A decision last week about NSA spying by a panel of judges
on the U.S. Court of Appeals in New York City sent shock
waves through the government. The court ruled that a section
of the PATRIOT Act that is due to expire at the end of this
month, on which the government has relied as a basis for its
bulk collection and acquisition of telephone data the past 14
years, does not authorize that acquisition. This may sound
like legal mumbo-jumbo but it goes to the heart of the
relationship between the people and their government and a
free society.
The PATRIOT Act is the centerpiece of the Federal
Government's false claim that by surrounding our personal
liberties to it, it can somehow keep us safe. The liberty-
for-safety offer has been around for millennia and was
poignant at the time of the founding of the American
Republic.
The Framers addressed it in the Constitution itself, where they
recognized the primacy of the rights to privacy and assured against its
violation by government, by intentionally forcing it to jump through
some difficult hoops before it can capture our thoughts, words, or
private behavior. These hoops are the requirement of a search warrant
issued by a judge based on evidence called probate cause, demonstrating
that it is more likely than not that the government will find what it
is looking for from the person or place it is targeting. Only then may
a judge issue a warrant which must specifically describe the place to
be searched, or specifically identify the person or thing to be seized.
Napolitano goes on:
None of this is new. It has been at the core of our system
of government since the 1790s. It is embodied in the Fourth
Amendment which is the heart of the Bill of Rights. It is
quintessentially American. The PATRIOT Act has purported to
do away with the search warrant requirement, by employing
language so intentionally vague that the government can
interpret it as it wishes. Add to this the secret venue for
this interpretation, the FISA court, to which the PATRIOT Act
directs that NSA applications for authority to spy on
Americans are to be made, and you have the totalitarian stew
that we have been force fed since 2001.
Because the FISA court meets in secret, Americans did not
know that the feds were spying on us all of the time and
relying on their own unnatural reading of the words in the
PATRIOT Act to justify it until Edward Snowden spilled the
beans on his former employer nearly 2 years ago.
Here is another reason I think to question whether USA FREEDOM may be
the best bill for us. There was an article in the Daily Beast by Shane
Harris the other day. The title of it is `` `Big Win' for Big Brother:
NSA Celebrates the Bill That's Designed to Cuff Them.''
It was supposed to be the declawing of America's biggest
spy service, but what no one wants to say out loud is that
this is a big win for the NSA, one former top spook says.
Civil libertarians and privacy advocates were applauding
yesterday after the House of Representatives overwhelmingly
passed legislation to stop the NSA from collecting Americans'
phone records in bulk. But they'd best not break out the
bubbly.
The real big winner here is the NSA. Over at its
headquarters in Fort Meade . . . intelligence officials are
high-fiving, because they know things could have turned out
much worse. ``What no one wants to say out loud is that this
is a big win for the NSA, and a huge nothing burger for the
privacy community,'' said a former senior intelligence
official, one of half a dozen who spoke to The Daily Beast
about the phone records program and efforts to change it.
Here's the dirty little secret that many spooks are loath
to utter publicly, but have been admitting in private for the
past two years: The program--
The bulk collection program--
which was exposed in documents leaked by Edward Snowden in
2013, is more trouble than it's worth.
``It's very expensive and very cumbersome,'' the former
official said. It requires the agency to maintain huge
databases of all Americans' landline phone calls. But it
doesn't contribute many leads on terrorists. It has helped
prevent few--if any--attacks. And it's nowhere near the
biggest contributor of information about terrorism that ends
up on the President's desk or other senior decision makers.
If, after the most significant public debate about
balancing surveillance and government in a generation, this
is the program that NSA has to give up, they're getting off
easy. The bill that the House passed yesterday, called the
USA FREEDOM Act, doesn't actually suspend the phone record
program. Rather, it requires that phone companies, not the
NSA, hold on to the records.
[[Page S3158]]
That bears repeating. At least from the author's perspective of this
article, the USA FREEDOM Act does not actually suspend the phone
records program. Rather, it requires the phone companies, not the NSA,
to hold onto the records.
``Good! Let them take them. I'm tired of holding onto
this,'' a current senior U.S. official told The Daily Beast.
It requires teams of lawyers and auditors to ensure that the
NSA is complying with Section 215 of the PATRIOT Act, which
authorizes the program, as well as the internal regulations
on how records can and cannot be used. The phone records
program has become a political lightning rod, the most
controversial of all of the classified operations that
Snowden exposed. If NSA can still get access to the records
but not have to hold on to them itself, all the better, the
senior official said.
``It's a big win for common sense and for the country,''
Joel Brenner, the NSA's former inspector general, told The
Daily Beast. ``NSA can get to do what it needs to do with a
higher level of scrutiny and a little more trouble, but it
can still do what it needs to do. At the same time, the
government is not going to hold the bulk metadata of the
American people.''
``The NSA is coming out of this unscathed,'' said the
former official. If the USA FREEDOM Act passes the Senate--
which is not a foregone conclusion--it will be signed by
President Obama and create a more efficient and comprehensive
tool for the NSA. That's because under the current regime,
only the logs of landline calls are kept. But in the future,
the NSA will be able to get the cell phone records from the
companies, too.
That bears repeating. This week, everybody was talking about and
saying: We are not getting enough. The people who want more
surveillance are saying: We are not getting enough. We are only getting
the landlines. We are only getting one-third of all of the records.
Here is the allegation: Under the USA FREEDOM Act, they are going to
get many more records. They are going to have access to all cell phone
records. The question is, Are we going to really have less bulk
collection or maybe the same?
There is another irony--this is still according to Shane Harris at
the Daily Beast:
And there's another irony. Before the Snowden leaks, the
NSA was already looking for alternatives to storing huge
amounts of phone records in the agency's computers. And one
of the ideas officials considered was asking Congress to
require phone companies to hang onto that information for
several years. The idea died, though, because NSA leaders
thought that Congress would never agree, [current and former
officials have said].
It is kind of ironic that the NSA already thought of this idea,
didn't think we would be silly enough to do it, and now it is being
promoted as the reform, that the reform is going to be what the NSA
actually wanted in the first place.
Suddenly, the NSA found itself under orders from the White House--
this is after the revelations from Snowden--to come up with some
alternative to the phone records program that preserved it, but also
put more checks on how the records are used. Continuing:
That's when General Keith Alexander, then the agency's
director, dusted the old idea off the shelf and promoted it
on Capitol Hill.
That is right.
``The USA Freedom Act''--the supposed reining in of the
NSA--``was literally born from Alexander,'' the former
official said.
So the NSA effectively got what it wanted. But that doesn't
mean privacy activists got nothing, or that they'd count the
law's passage as a loss.
There is a large coalition, 50 maybe 100 different groups, that have
all been in favor of trying to end the bulk coalition. We have been
working together on this. We have mentioned the Electronic Frontier
Foundation, the Electronic Privacy Information Center, the ACLU,
FreedomWorks, Bill of Rights Defense Committee, The Constitution
Project--across the spectrum, right and left.
The question is on encryption, whether the government will be able to
break through the encryption that businesses are trying to devise to
keep them out.
There is an article in the New York Times, though this is from 1\1/2\
years ago, saying:
The National Security Agency is winning its long-running
secret war on encryption, using supercomputers, technical
trickery, court orders and behind-the-scenes persuasion to
undermine the major tools protecting the privacy of everyday
communications in an Internet age. . . . The agency has
circumvented or cracked much of the encryption, or digital
scrambling, that guards global commerce and banking systems.
Continuing:
``For the past decade, N.S.A. has led an aggressive,
multipronged effort to break widely used Internet encryption
technologies,'' said a 2010 memo describing a briefing about
N.S.A. accomplishments for employees of its British
counterpart.
I think the encryption thing is a big deal and will continue to be
something that is a bone of contention between the tech industry and
the government.
With regard to what we do in order to protect ourselves from the
government, I think encryption will continue to take off.
Ms. CANTWELL. Will the Senator yield for a question without losing
the floor?
Mr. PAUL. Yes, without losing the floor.
Ms. CANTWELL. I am so pleased to hear my colleague talk about
encryption technology because it is clearly something very important in
this privacy debate. I hear with interest, as you cite that article,
that one of the key things about the encryption debate is several years
ago, those involved at the highest levels of government basically
decided that instead of being able to break the encryption code, that
maybe it would be a good idea to put an actual government chip in every
computer. That was called the clipper chip. And the notion was that
then the NSA and other people wouldn't have to worry about breaking the
code. They would just have a government backdoor to our technology.
In fact, there were many people--I kept saying you are going to say
instead of ``Intel inside'' you are going to say ``U.S. Government
inside'' of every computer. Is that what we were trying to do?
So the clipper chip battle in the 1990s was a very famous debate
about exactly how we were going to proceed on making sure that we were
guaranteeing privacy to U.S. citizens. So clearly we were successful in
defeating the clipper chip, but it took a lot of time and a lot of
energy.
So I thank my colleague for continuing to fight on these important
issues. You mentioned many of the organizations that were also involved
in that battle. Are you saying that now you believe there are new
government efforts to thwart our encryption capabilities?
Mr. PAUL. I thank the Senator for that question. I think there is a
new sort of political rhetoric attacking encryption, but I think there
will be more efforts. This article is from about a year ago, but I
think what is going to happen from this--and what I have been hearing
from people--is there is ultimately going to be encryption that is not
housed by any company. They are going to have encryption--the only way
to get to the encryption is through the individual. This is being done
because the government has overplayed their hand. Because the
government has been such a bully on this, companies are going to
continue to get further and further away. What they are going to do is
the encryption will only be in control of the user. When that happens,
the government is not getting any information at all.
So they are taking a tool that probably has been useful to a certain
degree--and I don't mind if we are doing it through warrants and
specific extradition--but I think they are pushing companies so hard
that I think encryption is going to be put in a place where even the
company cannot get to it.
Ms. CANTWELL. If I could ask another question of the Senator without
losing him the right to the floor, this is a debate, as you were just
saying. I think I understand your premises that there are three legs to
the stool. There is a Federal Government that wants access, but they
should go through the judiciary system, and there are separately the
entities that have the actual records, which are the telecom companies,
and that keeping those separate, not blending them, not actually giving
the telephone companies the right to keep all the data and information
of individuals is a critical distinction.
You were just describing, I think I understood, that in this case the
government was just saying: Oh, keep all of that data and information,
which is not exactly what the phone companies had acquired or kept for
any business purposes, but it just puts personal data and information
at risk.
Am I understanding that correctly?
[[Page S3159]]
Mr. PAUL. I think I understand that question. The phone companies
aren't excited about it, but they will do it if they are paid and told
to do it, basically. But the phone companies, I don't know. I don't how
much objection they have had to the current system and the new system.
They probably don't want to have to hold all this. There are rumors
that the people who want more will require them to.
I don't think, under the current USA FREEDOM Act, they are going to
be required to hold the records, but they are going to be encouraged to
and paid to hold the records.
So I think the real question is, Is the USA FREEDOM an improvement or
are we just going to have bulk collection done by another name, with
phone companies holding the records. That is what my fear is.
Ms. CANTWELL. I would say to the Senator or ask the Senator, in this
debate, I think you raised an important question, if I understand it
correctly, which is, How much will the U.S. Government spy on U.S.
citizens? And that, combined with the question you were asking to the
changes to the PATRIOT Act and the accumulation of business records, is
when that individual could be a U.S. citizen.
For example, you and I could be somewhere--you could be an individual
of interest to one of these Federal agencies, but just because I happen
to have a cup of coffee with you, now all of a sudden all of my
business records, all of my personal information could be under
investigation by the U.S. Government, and I wouldn't even know about
it; is that the Senator's understanding?
Mr. PAUL. Yes, I think that is a big concern. There are a couple of
things that I think are alarming. Even two domestic emails could be
routed through a server in another country, and they could use that to
actually get access to two Americans who are communicating from New
Jersey to South Carolina.
But also I think as Senator Wyden has pointed out, it often or
sometimes sounds like we are targeting a foreigner simply to get access
to an American.
Does the Senator have a question in that vein?
Mr. WYDEN. I think my colleague has asked very good questions, and it
is my intention to rejoin him here in a few minutes.
But I think it is important--and I would be interested in your
reaction--do people understand what is at stake here?
We are talking about section 702 of the FISA Act and that involves a
very important issue of making sure, when there is somebody dangerous
overseas, that we can, in effect, go up on that person to get that kind
of information that we have to have.
But what we are seeing increasingly--and we have actually put it on
our Web site--Americans are being swept up in those searches and their
emails are being read.
And what is especially troubling to me--and I would be interested in
my colleague's views with respect to this backdoor search loophole--
this is a problem today, but it is only going to be a growing problem
in the days ahead because increasingly communications systems around
the globe are merging. They are becoming integrated. It is not as if
the communications systems stop at a nation's border.
So I think this is a particularly important issue. As we have talked
about, the amendments we are interested in offering, I think this is a
particularly important bipartisan effort. I don't think people have
known a whole lot about how the backdoor search loophole takes place.
We have supported section 702, because when there are dangerous
threats overseas, we want our government to be able to ensure it is
taking steps to protect the American people. But having more and more
Americans swept up in these searches, particularly the changing nature
of a communications system being integrated, strikes me as a very big
problem.
I am going to be back to join my colleague very shortly, but I would
be very interested in my colleague's thoughts on the importance of
closing this backdoor search loophole.
We have tried in the past. I think that now, particularly, when we
have had a chance to walk this through in terms of what it really
means, my hope is we can finally close it.
What would my colleague's reaction be with respect to the importance
of this?
Mr. PAUL. I think it is a great question, and some are saying that
through the backdoor of abusing 702, that if there were 90,000 people
targeted last year through using this 702, that we collected the
information on 900,000 individuals who were incidental and were not the
target at all. So for every one byte of data we are collecting on
somebody, we are collecting nine bytes of data on somebody who is not
the target.
But that becomes part of this enormous data center that we are
building. And many of those people are Americans who were getting
through the backdoor.
But also why I am here today is I want the leadership to allow us to
have our amendments. That is one of our amendments. That is a joint
amendment we have worked on. We have been working on these things for
months. This only comes up every 3 years. Should they not give us a day
to have a vote on some of these amendments?
Mr. WYDEN. I thank my colleague. I will be back to rejoin him in a
few minutes. I do so appreciate my colleague's stamina and passion.
I went to school on a basketball scholarship, and I think I have been
able to stay in a little bit of shape, but my friend from Kentucky has
sure shown both his commitment and his stamina. I am going to have to
take a brief meeting on one of the issues pending, but I intend to join
my colleague here before too long.
I thank the Senator. I will have additional questions at that time.
I return the floor to Senator Paul.
Mr. PAUL. I thank the Senator for that question.
In the New York Times, in March of 2014, Clara Miller writes about
some of the costs on U.S. tech companies that are occurring from some
of this:
Microsoft has lost customers, including the government of
Brazil.
IBM is spending more than a billion dollars to build data
centers overseas to reassure foreign customers that their
information is safe from the prying eyes in the United States
government.
And tech companies abroad, from Europe to South America,
say they are gaining customers that are shunning U.S.
providers, suspicious because of the revelations by Edward J.
Snowden that tied these providers to the National Security
Agency's vast surveillance program.
The estimates are in the billions of dollars lost to American
companies.
Even as Washington grapples with the diplomatic and
political fallout of Mr. Snowden's leaks, the more urgent
issue, companies and analysts say, is economic. Tech
executives, including Mark Zuckerberg of Facebook, raised the
issue when they went to the White House...for a meting with
President Obama.
It is impossible to see now the full economic ramifications
of the spying disclosures--in part because most companies are
locked in multiyear contracts--but the pieces are beginning
to add up as businesses question the trustworthiness of
American technology products.
The confirmation hearing last week for the new NSA chief,
the video appearance of Mr. Snowden at a technology
conference in Texas and the drip of new details about
government spying have kept attention focused on an issue
that many tech executives hoped would go away.
Despite the tech companies' assertions that they provide
information on their customers only when required under law--
and not knowingly through a back door--the perception that
they enabled the spying program has lingered. ``It's clear to
every single tech company that this is affecting their bottom
line,'' said Daniel Castro, a senior analyst at the
Information Technology and Innovation Foundation, who
predicted that the United States cloud computing industry
would lose $35 billion by 2016.
Forester Research, a technology research firm, said the
losses could be as high as $180 billion, or 25 percent of
industry revenue, based on the size of the cloud computing,
web hosting and outsourcing markets and the worst case for
damages.
The business effect of the disclosures about the NSA is
felt most in the daily conversations between tech companies
with products to pitch and their wary customers. The topic of
the surveillance, which rarely came up before, is now ``the
new normal'' in these conversations, as one tech company
executive described it. ``We're hearing from customers,
especially global enterprise customers, that they care more
than ever about where their content is stored and how it is
used and secured,'' said John E. Frank, deputy general
counsel at Microsoft, which has been publicizing that it
allows customers to store their data in Microsoft data
centers in certain countries.
[[Page S3160]]
Isn't that sad? Isn't it sad that a great American company is having
to advertise that they are storing their information in other countries
because in America we are not protecting your privacy? Isn't that sad,
that a great American company, in order to stay in business, is having
to advertise to their customers that they are keeping their information
in another country?
At the same time, Mr. Castro said, companies say they
believe the Federal Government is only making a bad situation
worse. ``Most of the companies in this space are very
frustrated because there hasn't been any kind of response
that's made it so they can go back to their customers and
say, 'See, this is what's different now, you can trust us
again,''' he said.
In some cases, that has meant forgoing potential revenue.
Though it is hard to quantify missed opportunities,
American businesses are being left off some requests for
proposals from foreign customers that previously would have
included them, said James Staten, a cloud computing analyst
at Forester who has read clients' requests for proposals.
There are German companies, Mr. Staten said, ``explicitly not
inviting certain American companies to join.'' He added,
``It's like, `Well, the very best vendor to do this is IBM,
and you didn't invite them.'''
The result has been a boon for foreign countries.
Runbox, a Norwegian email service that markets itself as an
alternative to American services like Gmail and says it does
not comply with foreign court orders seeking personal
information, reported a 34 percent annual increase in
customers after news of the NSA surveillance.
Brazil and the European Union, which had used American
undersea cables for intercontinental communication, last
month decided to build their own cables between Brazil and
Portugal, and gave the contract to Brazilian and Spanish
companies. Brazil also announced plans to abandon Microsoft
Outlook for its own email system that uses Brazilian data
centers.
Anybody still think this bulk collection is a good idea for America?
Mark J. Barrenechea, chief executor of OpenText, Canada's
largest software company, said an anti-American attitude took
root after the passage of the PATRIOT Act, the
counterterrorism law passed after 9/11 that expanded the
government's surveillance powers.
This is all coming from a New York Times article by Claire Miller
from March of 2014.
But ``the volume of the discussion has risen significantly
post-Snowden,'' he said. For instance, after the NSA
surveillance was revealed, one of OpenText's clients, a
global steel manufacturer based in Britain, demanded that its
data not cross U.S. orders. ``Issues like privacy are more
important than finding the cheapest price,'' said Matthias
Kunisch, a German software executive who spurned U.S. cloud
computing providers for Deutsche Telekom. ``Because of
Snowden, our customers have the perception that American
companies have connections to the NSA.''
Security analysts say that ultimately the fallout from Mr.
Snowden's revelations could mimic what happened to Huawei,
the Chinese technology and telecommunications company, which
was forced to abandon major acquisitions and contracts when
American lawmakers claimed that the company's products
contained a backdoor for the People's Liberation Army of
China--even though this claim was never definitively
verified.
Silicon Valley companies have complained to government
officials that Federal actions are hurting American
technology businesses. But companies fall silent when it
comes to specifics about economic harm, whether to avoid
frightening shareholders or because it is too early to
produce concrete evidence.
``The companies need to keep the priority on the government
to do something about it, but they don't have the evidence to
go to the government and say billions of dollars are not
coming to this country,'' Mr. Staten said.
Some American companies say the business hit has been minor
at most. John T. Chambers, the chief executive of Cisco
Systems, said in an interview that the NSA disclosures had
not affected Cisco's sales ``in a major way.'' Although deals
in Europe and Asia have been slower to close, he said, they
are still being completed--an experience echoed by other . .
. companies.
Security analysts say tech companies have collectively
spent millions and possibly billions of dollars adding state-
of-the-art encryption features to consumer services, like
Google search and Microsoft Outlook, and to the cables that
link data centers at Google, Yahoo and other companies.
IBM said in January that it would spend $1.2 billion to
build 15 new data centers, including in London, Hong Kong,
and Sidney, Australia, to lure foreign customers that are
sensitive about the location of their data.
Isn't it sad that companies want to avoid being in America? They want
to avoid having their information cross our borders.
Salesforce.com announced similar plans this month.
Germany and Brazil, where it was revealed that the NSA
spied on government leaders, have been particularly
adversarial towards American companies and the government.
Lawmakers, including in Germany, are considering legislation
that would make it costly or even technically impossible for
American tech companies to operate inside their borders.
Yet some government officials say laws like this could have
a motive other than protecting privacy. Shutting out American
companies ``means more business for local companies,''
Richard A. Clarke, a former White House counterterrorism
adviser, said last month.
This is an article that was published on NPR's Web site. The headline
is ``As Congress Haggles over Patriot Act, We Answer 6 Basic
Questions.''
Quoting from the article:
A key section of the Patriot Act--a part of the law the
White House uses to conduct mass surveillance on the call
records of Americans--is set to expire June 1. That leaves
legislators with a big decision to make: Rewrite the statute
to outlaw or modify the practice or extend the statute and
let the National Security Agency continue with its work.
I think it will be interesting to see how the debate ultimately plays
out. You have what has been passed in the House--the USA FREEDOM Act--
and passed in the House overwhelmingly. The majority here probably
believes we are not collecting enough bulk data. They would prefer to
collect more bulk phone data and aren't too concerned that any privacy
interests are being trampled upon.
So you have two sort of contrary opinions in wondering which
direction we go. Some who want more collection of data and say we are
not collecting enough data say they might live with it if we add in and
force the phone companies to keep the data. Right now, the bill doesn't
have them keeping the data. But the concern for some of those of us who
believe in privacy is that we may just be trading one form of bulk
collection for another, that we may be trading a system where the
government collects the data and there is a bulk collection for a
system where the phone companies have the bulk collection but you are
still having the same sort of collection of data.
My concern with the USA FREEDOM Act is that it still, I believe, may
allow for a nonspecific warrant. It still may allow for bulk collection
in the sense that it says you have to select a specific person, but the
specific person can be a corporation. So if you still have a
corporation--the problem is that if we put the name ``Verizon'' in and
you are getting all of Verizon's customers and the only difference is
the phone company is holding the information and then divulging it
versus the government holding it, I am not so sure we have had so much
of an improvement.
Some will say we just need to be safe, we just need to do whatever it
takes, that it doesn't matter if we give up any kinds of basic freedoms
or privacy in the process. But I think we give up on who we are as a
people if we say that basically, at all cost, regardless of what it
takes, we are going to do this to keep ourselves safe.
The thing is that even the President's privacy commission and the
President's review commission--two independent, nonpartisan bodies--
ended up saying that they didn't think anybody was independently
captured, that there was no unique information that was actually gotten
from either of these programs, that the bulk collection of data hadn't
made us safer but it has infringed upon our privacy.
I think if we don't have a significant debate on this, if we continue
to say ``Well, we are up against a deadline, and because there is a
deadline, we don't have time for amendments,'' I think we run a real
risk with the American people. Congress has about a 10-percent approval
rating right now, and some argue that might be a little bit high
considering how great a job we are doing--a 10-percent approval rating.
The vast majority of the American people think we have gone too far
in the bulk collection of records. In the ACLU survey we looked at a
little bit earlier, in the age group between 19 to 39, over 80 percent
of people think we have gone too far and we are not protecting privacy.
(Mr. SCOTT assumed the Chair.)
We just read an article from the New York Times in which they talk
about what kind of business is potentially being lost because people
don't want
[[Page S3161]]
American products. I think it is kind of sad. Not only do they not want
their data held in a center in our country, they don't want their data
crossing into our country.
I don't think we have to be that fearful of terrorism that we have to
give up who we are in the process.
I have met some of our young soldiers who have come back with missing
limbs. I have met the parents of some who have died. And to a person,
they say they were fighting for our Bill of Rights and they were
fighting for our Constitution. It is difficult for me to understand how
we can take into account the sacrifice they made in war and at the same
time, while we are here safe at home, we can't even protect the
documents they are fighting for.
I see no reason why we can't rely on the Constitution. I see no
reason why we can't rely on traditional warrants. Warrants are not hard
to get. Warrants are actually quite easy to get. Warrants are, if
anything, very easy to get. On the FISA Court, turning down a warrant
is almost nonexistent. So I see no reason why we can't try using the
Constitution for a while.
I am concerned that the problem is bigger than just what we are
talking about today. We are talking about the bulk collection of
records supposedly under section 215 of the PATRIOT Act. If we stop
that, how much have we stopped? How much is still in existence? How
much are we still doing through other venues?
I think probably the most alarming thing we have come across as I
have been talking today is the idea that some people believe the
President has inherent powers that are not subject to Congress. That,
to me, is very alarming.
It also means that I think that because this opinion persists within
the executive branch, there are in all likelihood many programs like
the bulk collection of data--many programs that we don't know about,
some that we have heard about. It is still not clear to me whether the
Stellar Wind Program is completely gone, which involves more than just
telephone data, email conversations, computer addresses, and credit
cards. What is the government collecting? How much is being collected
and under what authority?
It does concern me that there are people--some of them elected
officials--who believe in the inherent powers of the Presidency that
cannot be challenged even by Congress. We have a lot of work if that is
really what we are up against.
I think it would be a big step forward if we do something about the
bulk collection of data. But I think, given the court case, it is
concerning to me that we might actually make the court case or the
future of it moot and that we actually could make things worse. It
wouldn't be the first time we have made things worse, thinking we were
fixing things and made it worse.
From the opinion of the Second Circuit Court, here are some quotes.
The court writes:
That telephone metadata do not directly reveal the content
of telephone calls does not vitiate the privacy concerns
arising out of the government's bulk collection of such data.
. . . the startling amount of detailed information metadata
can reveal, information that could traditionally only be
obtained by examining the contents. . . .
I think this is a good point because many people want to downplay
what metadata is or what you can determine from it. But here is the
court acknowledging that you may actually get more detailed information
from metadata than what you once got from obtaining the content.
When we think about how true this is, think about if someone were
just going to come into your house and take your papers. What could
they find? How many people even have personal letters anymore? People
don't have anything on paper that is personal at all. A lot of people
pay their bills online. But it is amazing, if you put the compilation
of all the metadata together, what you can determine.
Remember that a high-ranking intelligence official said that we kill
people based on metadata. I presume he is talking about foreigners. But
if we are killing people based on metadata, the assumption is that they
can get an enormous amount of information from metadata, and we should
be very careful about releasing this.
They give an example of the sort of metadata and what it can
determine:
For example, a call to a single-purpose telephone number
such as a ``hotline'' might reveal that an individual is: a
victim of domestic violence or rape; a veteran; suffering
from an addiction of one type or another; contemplating
suicide; or reporting a crime.
Metadata can reveal civil, political, or religious
affiliations; they can also reveal an individual's social
status, or whether and when he or she is involved in intimate
relationships.
The more metadata the government collects and analyzes,
furthermore, the greater the capacity for such metadata to
reveal ever more private and previously unascertainable
information about individuals.
That is sort of interesting also about metadata. We have so much
online and so much information on our phones that you could probably be
in someone's house for a month and never find that in paper because so
much of our lives revolve through the phone, through things we order
and phone calls and all of that, that in the old days what could have
been gotten through someone's castle, through someone's actual papers
in their house, I think pales in comparison to what you can get simply
through metadata even without content.
They make another point, too:
Finally, as appellants . . . point out, in today's
technologically based world, it is virtually impossible for
an ordinary citizen to avoid creating metadata about himself
[or herself] on a regular basis simply by conducting his
ordinary affairs.
The order thus requires Verizon to produce call detail
records every day on all telephone calls made through its
systems or using its service where one or both ends of the
phone call are located in the United States.
It is hard for me to believe that there are people who don't
understand that what we are talking about here is a general warrant.
This is what we fought the Revolution over. This is, as John Adams
said, the spark that led to the Revolution. The spark that led to the
Revolution was the whole worry and concern, one, that soldiers were
writing the warrants, and the other concern was that in writing the
warrants, they weren't specific to anyone, they were being written in a
general fashion, and that by writing them generally so, there could be
an injustice in having an entire group who ends up being subject to a
warrant that is not specific.
From the appellate court, we also hear that the metadata has a reach
far beyond almost imagination.
In the article ``As Congress Haggles over Patriot Act, We Answer 6
Basic Questions,'' which was published on npr.org, there are several
questions they ask about the PATRIOT Act debate.
Most of the talk has been about telephone surveillance, but the
question is this:
What about the NSA's surveillance of email and other
Internet activities?
This congressional debate has nothing to do with any of
NSA's surveillance Internet activity.
That's mostly because of the fact that those programs are
authorized by different laws.
The PRISM program, for example, which collects a vast
amount of Internet data . . . is covered under section 702 of
the FISA Amendments Act.
Some have said that the PRISM Program probably is collecting more
information in many ways, maybe even dwarfing the bulk collection of
the phone records. So if we don't address section 702 in this debate,
this is also what we were talking about earlier, is the backdoor, the
ability to say: Well, we are investigating someone in a foreign
country, but really they are trying to get access to someone in our
country through the backdoor. If we don't address this, we may well not
be addressing a significant part of the problem.
This is one of the other questions:
Is there anything else in the House bill we should know
about?
The bill [the USA FREEDOM Act] lifts the secrecy
surrounding key decisions made by the secret Foreign
Intelligence Surveillance Court. Going forward, some will be
made public.
I think this is a step in the right direction. There are a lot of
legal decisions, and I think we can discuss the pros and cons of the
legal decision without having to know the specific details. I think
Senator Wyden made a good point on this earlier when he said that it is
not the operational details we need to know, but when we are
questioning and debating the law, there is
[[Page S3162]]
no reason why that shouldn't be public knowledge.
One of the reasons we would like to see the court rulings, too, is
that the FISA Court found bulk data collection constitutional. I still
find that somewhat inconceivable, that a court that is anything less
than a rubberstamp could find it somehow reasonable to say that
collecting all of our records in advance really is relevant to an
investigation. I think it is a pretty significant point that they are
not going to query the data until after they get it. So there is no
investigation until they have already collected the data.
The other point is that when they say it is relevant, is anybody
really determining that arguing one way or the other or do we just
accept what the NSA says, that the data is relevant?
Nobody knows what will come of this debate. My hope in going on all
day with this debate and trying to force the issue is to try to allow
for some votes on some amendments to this. We shouldn't have just an
up-or-down vote on whether to extend the PATRIOT Act. I think that when
we have 80 percent of the population in some cases but at least two-
thirds of the entire population saying that the bulk collection of all
of our phone records all of the time without a warrant is something
that has gone too far and needs to stop, it is an insult to the
American people to think that we are not going to have any vote at all,
that we would just have a vote up or down on extending this.
I think we really do need to have a vote, and the vote needs to be on
many different alternatives. It shouldn't just be on one alternative.
It needs to be on section 702 and the FISA amendments. It should be on
a variety of things that could make this better--whether FBI agents
should be able to write their own warrants or whether they should be
signed by judges. There are a variety of things we need to be talking
about. The Senate could simply take up the House bill and pass the
House bill, but I think that is unlikely.
This is an interesting article from The Boston Globe, a while back.
It says: ``What your metadata says about you: From MIT's Cesar Hidalgo,
a new window on what your email habits reveal.''
The article is written by Abraham Rieseman.
As recently as a few weeks ago, ``metadata'' was an obscure
term known mainly to techies and academics. Broadly defined,
metadata is data about other data. For the phone company, it
might be the time and length of your calls, but not the
conversation itself; in the context of email, it means
information such as the sender and recipients of a message--
basically, everything except what the message actually says.
We spoke earlier about the suspicious activity reports. These are
reports that the government requires that banks send in. It adds a cost
to your banking, and it is a pretty significant intrusion into the
banking affairs and also into an individual's affairs.
This is an article that was written by the ACLU about suspicious
activity reports.
Law enforcement agencies have long collected information
about their routine interactions with members of the public.
Sometimes called ``field interrogation reports'' or ``stop
and frisk records,'' this documentation, on the one hand,
provides a measure of accountability over police activity.
But it also creates an opportunity for police to collect the
personal data of innocent people and put it into criminal
intelligence files with little or no evidence of wrongdoing.
As police records increasingly become automated, law
enforcement and intelligence agencies are increasingly
seeking to mine this data.
The Supreme Court established ``reasonable suspicion'' as
the standard for police stops in Terry v. Ohio in 1968. This
standard required suspicions supported by articulable facts
suggesting criminal activity was afoot . . .
In the suspicious activity reports, though, these kinds of programs
threaten this reasonable time-tested law enforcement standard by
encouraging the police and the public to report behaviors that do not
rise to reasonable suspicion. So it is one thing to say that someone
has done something that rises to reasonable suspicion, but it is
another to say that activity that could be perfectly normal, like
withdrawing $1,000 from the bank or putting $1,000 in the bank, somehow
is suspicion of a crime that we should be investigating.
A lot of this stuff has gotten really, really out of control. It is
one of the things where actually the newspapers have done a pretty good
job of reporting some of the stuff--not necessarily the suspicious
activity reports but on some of the other confiscations of people's
assets without really evidence of a crime but maybe evidence that they
have cash.
You can be driving down the road in DC and make an unsafe lane change
and the government asks you if you have money. You then find that the
government takes it or the government says: Well, you have $2,000. We
will let you keep $1,000 if you sign a statement saying that you will
not sue us to get the $1,000 back.
Believe it or not, that is stuff that is still happening in our
country. It is called civil asset forfeiture. To make it worse, we
actually give a perverse incentive. We say to the local officials that
if you capture money from people, we will give you a percentage of it--
so the more you take, the more you get.
Some people have shown that people actually go after things that are
paid off. There was a motel in New Jersey, the Motel Caswell. Local
officials decided they would go after it because, they said, there had
been some drug dealings at the motel. It turned out there were 6 people
in the motel selling drugs out of 180,000 visits or something
ridiculous.
It turned out there were other hotels that had a higher percentage of
drug busts done at the hotel, but they owed money and the Motel Caswell
was completely paid off. It may have been part of the decisionmaking
process, because when the government came and seized the hotel for
illegal activity, they took the hotel and went sell it, but it has a
lien against it. The bank owns it, and you do not get to sell it very
easily. It was paid off. They were going to sell it. It is a $1.5
million hotel. And then, I guess, the local police forces would benefit
by that.
It is not just with our records that there is a problem. It is also
with the concern for how we adjudicate justice in our country. As we
see this moving forward, I think we need to be worried about not only
the way our records are collected, but we need to be concerned about
justice in general.
As I have traveled around the country, one of the things I have seen
is what I call an undercurrent of unease in our country. I traveled to
Ferguson. I have traveled to Detroit. I have been to Chicago. I have
been to most of our major cities, and I have also been to some of the
places where there has been this anger.
I think people are angry because they do not feel that government is
treating them justly. People do not like to be treated arbitrarily. In
fact, there are some who have given the definition of what is
acceptable, what is good government and what is bad government, what is
good law and what is bad law, what is just and what is unjust. But
whether it is arbitrary or not, Hyack in ``The Road to Serfdom'' talks
about that arbitrariness, not having the predictability of knowing what
the law will do. That the law does not do the same thing to all
individuals is a definition of the injustice that causes people to be
unhappy about the way their government treats them.
My fear is that this arbitrary nature of collecting bulk records, of
collecting all of our records without a significant warrant--the
problem here is going to be something that adds on to a sense of unease
that is in our cities and in our country at-large. What happens is that
everybody is not treated exactly equal. People do not have the same
resources to try to escape the clutches of Big Brother when either data
or information is used against them.
One of the little-noticed sections in the USA FREEDOM Act deals with
the safety of maritime navigation and nuclear terrorists and
conventions implementation. Interestingly, there is a provision somehow
in this for civil forfeiture. But I think the biggest problem with
civil forfeiture is that we allow it to occur without a conviction. I
think no one should have their possessions taken from them. I think you
should be innocent until proven guilty.
I see that the Senator from Connecticut has a question. I would be
happy to entertain a question without losing the floor.
The PRESIDING OFFICER. The Senator from Connecticut.
Mr. BLUMENTHAL. Mr. President, I thank my colleague from Kentucky for
giving me the opportunity to ask a
[[Page S3163]]
question. In the preface to that question, I would like to make a
couple of remarks if he will yield to me for that purpose.
My colleague from Kentucky has taken the floor tonight in the highest
traditions of the Senate to make a point that should be meaningful to
all of us who care about our democracy. My colleagues, including the
Senator from Kentucky, have made a number of important points about the
dangers of mass surveillance and the harms caused by the bulk
collection of Americans' data.
I agree with those who have pointed out that the USA FREEDOM Act is a
strong compromise solution for protecting Americans' freedom and
security at the same time as striking a balance between preserving our
security and protecting our precious rights.
I want to highlight for the Senator from Kentucky, in his very
insightful remarks, as well as for my colleagues and others who are
interested in this topic, a particular part of that legislation--the
provisions that deal with the adversarial process in the FISA Court.
The bulk collection program is a powerful example of why we need a
stronger adversarial process. We know that bulk metadata collection is
unnecessary. The President's own review group has made that clear. We
also know that bulk metadata collection is un-American. This country
was founded by people who rightly abhorred the general warrant, and no
general warrant in our history has swept up as much information about
innocent Americans as the orders permitting and enabling bulk
collection.
Last week, the Second Circuit Court of Appeals held that bulk
collection is also unauthorized by the law. More than 9 years after the
government began bulk collection, we are finally told by the highest
court to consider the question that the bulk collection program was
never authorized by Congress.
How do we get here? How do we arrive at a place where one of the most
respected courts of appeals in the United States says that the
executive branch of our government has been collecting data on innocent
Americans without legal authority to do so--in fact, breaking the law
by invading Americans' privacy?
We got here because the FISA Court failed its most crucial test. In
May of 2006, the FISA Court was asked whether the Federal Government
could collect phone records of potentially every single American. The
argument hinged on the word ``relevance'' in the statute. Under the
statute, the Federal Government can collect relevant information. The
court had to decide whether ``relevant information'' means all
information.
That does not strike me as a difficult question. Does ``relevant
information'' mean all information? It did not strike the Second
Circuit Court of Appeals as a difficult question either.
The Second Circuit held that the Federal Government's interpretation
is ``unprecedented and unwarranted.'' Those are strong words for a
court normally extraordinarily reserved and understated in its
characterization of illegality by the executive branch. But the court
said unequivocally and emphatically that the Government was breaking
the law.
Never before in the history of the Nation had such a bizarre
interpretation been entertained. At the very least, you would have
thought the FISA Court would recognize that its May 2006 decision was
important.
If this question had gone to a regular article III court, it would
have been immediately recognized as a momentous decision, permitting
bulk collection of data on every American. Litigants on both sides
would have, in effect, pulled out all the stops in their arguments. Yet
not only did the FISA Court get the question wrong in May of 2006, it
appears not even to have spotted the issue, not even to have raised it
and addressed it in its opinion. Of course, nobody knew it at the time
because the opinion itself was kept secret, as were all of the
proceedings on this issue.
The FISA Court upheld the government's bulk collection program, and
it did so without even writing an opinion explaining its legal
reasoning. Not until the program was made public roughly 8 years later
was an opinion written, and every opinion released so far has omitted
key issues or ignored key precedent.
If the court had written an opinion, at least Congress would have
quickly known what the court had done, not to mention the American
people would have known what the court had done, but the court wrote
nothing. It chose to be silent and secret, and apparently it believed
this issue merited no notice to the Congress. A court that could get
such an important question so disastrously and desperately wrong is
fundamentally broken.
Let me be clear. I do not mean to denigrate the judges of the FISA
Court. Any judge, no matter how wise and well attuned to legal issues,
needs to hear both sides of an argument in order to avoid mistakes.
Courts make better decisions when they hear both sides.
In fact, during a hearing on this issue in the Senate Judiciary
Committee, I had the opportunity to ask one of the Nation's foremost
jurists whether she could do her job without hearing from both sides of
an argument, and she was quite clear that she could not. Adversarial
briefing, she explained, is essential to good decisionmaking.
We know as much from our own everyday lives that we make better
decisions when we know the argument against what we are going to do,
what we are going to think, and what we are going to say. It is the
genius of the American system of jurisprudence that judges listen to
both sides in open court before they make a decision. Their rulings are
public, and they themselves are evaluated and judged.
Nine years after the FISA Court's ruling in May of 2006, we continue
to wrestle with the impact of the court's grievous, egregious error,
but we cannot simply fix the mistake without fixing the court. We
cannot fix the system without remedying the process because that
process is so broken, it will make more mistakes--not only predictable
mistakes but inevitable mistakes.
As technology evolves, we cannot say with certainty what the next big
privacy issue will be. In 2006, the FISA Court decided whether the
government can collect all of our phone records. In 2020, the
government will have some new means of surveillance, and they will want
to try it. In 2030, we will have another.
We need a FISA Court that we can trust to get the question right.
Trust, confidence, and the integrity of the judicial system that
authorizes the surveillance of Americans' private lives is at issue
here.
We need a FISA Court that operates transparently, openly, and has
accountability. A court that operates in secret and hears only the
views of the government and faces only minimal appellate reviews cannot
be trusted to pass the next big test.
The USA FREEDOM Act would fix this systemic problem. It would demand,
under certain circumstances, that the FISA Court hear from both sides
of the issue and explain why it is making a decision and also explain
why it has decided not to hear both sides if it chooses to do so. That
would bring transparency to the FISA Court decision, requiring them to
be released unless there is good reason not to release them. It
preserves the confidentiality of the court where necessary, but it also
protects the fundamental, deeply rooted sense of American justice that
an adversarial, open process is important--indeed, essential--to
democracy. And it would provide some appellate review, some form of
review by an appellate court so that if mistakes are made, they are
more likely to be caught and stopped before they result in fundamental
invasion of private rights.
In short, the USA FREEDOM Act will make the FISA Court look more like
the courts Americans deal with in other walks of life, more like the
courts they know when they are litigants, when they are spectators, and
more like the courts our Founders anticipated.
What would they have thought about a court that hears cases in
secret, makes secret decisions, operates in secret, and issues secret
rulings? They would get it wrong. They would have thought that that
sounds a lot like the Star Chamber, that sounds a lot like the so-
called courts that caused our rebellion.
This change will help ensure that we are not back in this Chamber 9
years from now debating the next mass surveillance program that started
without
[[Page S3164]]
Congress actually authorizing it, as did metadata collection. It will
help ensure that strictures of our Constitution are obeyed in spirit
and letter. It will help ensure that programs designed to keep
Americans safe can command the respect and trust they need to be
effective. We need those programs. National security must be preserved
and protected, but we need not sacrifice fundamental rights in the
process.
Unless and until this essential reform is enacted, along with the
other essential reforms contained in the USA FREEDOM Act, I will oppose
any reauthorization of section 215.
The question that I ask my colleague from Kentucky and the point that
I think he has made so powerfully and eloquently relates to this
essential feature of our American jurisprudence system. Are not open
adversarial courts essential to the trust and confidence of the
American people, and do we not need that kind of fundamental reform in
order to preserve our basic liberties?
I ask this question of my colleague and friend from Kentucky because
I think his debate on the floor of this Senate tonight raises
fundamental issues that need to be discussed and addressed.
I thank the Senator from Kentucky for the opportunity to ask this
question and address this body.
I thank the Presiding Officer.
Mr. PAUL. I thank the Senator from Connecticut for that question.
I think one of the points my friend was making through the question
had to do with the whole idea of relevance, which is sort of an amazing
thing.
I think the quote from the privacy and civil liberties commission
really hits the nail on the head--that they cannot be regarded as
relevant to any FBI investigations required by the statute without
redefining the word ``relevant'' in a manner that is circular,
unlimited in scope, and out of step with the case law.
The interesting thing is that we want a body that works a little more
like a court, and I know the Senator from Connecticut has been in favor
of having a special advocate and trying to make it more like a
courtroom. I think you can only get the truth if you have people on
both sides. If you have people on one side, it is an inevitability that
the truth is going to be lost and you are going to list in one
direction.
I think that will be a huge step forward, but it does boggle the mind
that we can have them arguing that this is relevant to an investigation
that has not yet occurred because we are collecting data and then we
are going to mine it at some other time for some investigation. So it
couldn't be relevant to an investigation because there is not yet an
investigation when they are collecting the data. And no FISA Court
seemed to question that, so it concerns me as to whether it is a very
good kind of undertaking at finding the truth.
So I think the Senator is exactly right, and I believe there are
things we can definitely do to make it better. I think the bottom line
is that we should not collect bulk data on people who are not suspected
of a crime.
One of the sections of the PATRIOT Act that doesn't get quite as much
discussion is section 213. That is the sneak-and-peek section and it is
not up for renewal, but it is something that also shows how we have
really gone awry on that.
Radley Balko has written about this in the Washington Post, and it is
how something starts out just a little bit at a time and grows bigger
and bigger.
From 2001 to 2003, law enforcement only did 47 sneak-and-peek
searches. The 2010 report said it was up to 3,970, and 3 years later,
in 2013, there were 11,129 sneak-and-peek searches. That is an increase
of over 7,000 requests. That is exactly what privacy advocates argued
in 2001 would happen.
The interesting thing is that when you look to see who exactly we are
arresting through these sneak-and-peek warrants that were intended to
be a lower standard so we could catch terrorists, well, we are going
after drug dealers. So, in essence, we have changed from a
constitutional standard to catch drug dealers down to a terrorist
standard, which is a lower standard.
To make matters worse, there are accusations and implications from
data that maybe the war on drugs has a disproportionate racial outcome.
I think it is concerning that we are actually not using a
constitutional standard but a lower standard.
I have an article that was written by Radley Balko in 2014 that
appeared in the Washington Post. He says:
Washington establishment types are often dismissive and
derisive of the idea that members of Congress should actually
be required to read legislation before voting on it--or at
the very least be given the time to read it. There's also a
lot of Beltway scorn for demands that bills be concise,
limited in scope and open for public comment in their final
form for days or weeks before they're voted on. If you're
looking for evidence showing why the smug consensus is wrong,
here is Exhibit A.
He is talking about the sneak-and-peek and how if we had known what
was in it, we would have known in advance that it was not really going
to end up being used for terrorists and instead end up being used for
domestic crime.
He says:
This is also an argument against rashly legislating in a
time of crisis. On Sept. 11, 2001, the federal government
failed in most important and basic responsibility--to protect
us from an attack. We responded by quickly giving the federal
government a host of new powers.
Assume that any power you grant to the Federal Government to fight
terrorism will inevitably be used in other context.
The article goes on:
Assume that the primary ``other context'' will be to fight
the war on drugs. (Here's another example just from this
month.) I happen to believe that the drug war is
illegitimate. I think fighting terrorism is an entirely
legitimate function of government. I also think that, in
theory, there are some powers the federal government should
have for terrorism investigations that I'm not comfortable
granting it in more traditional criminal investigations. But
I have zero confidence that there's any way to grant those
powers in a way that will limit their use to terrorism.
Law-and-order politicians and many (but not all) law
enforcement and national security officials see the Bill of
Rights not as the foundation of a free society but as an
obstacle that prevents them from doing their jobs. Keep this
in mind when they use a national emergency to argue for
exceptions to those rights.
When critics point out the ways a new law might be abused,
supporters of the law often accuse those critics of being
cynical--they say we should have more faith in the judgment
and propriety of public officials. Always assume that when a
law grants new powers to the government, that law will be
interpreted in the vaguest, most expansive, most pro-
government manner imaginable. If that doesn't happen, good.
But why take the risk? Why leave open the possibility? Better
to write laws narrowly, restrictively and with explicit
safeguards against abuse.
Of the 11,000 sneak-and-peek warrants that were issued, 51 were used
for terrorism. We lowered the constitutional standard, but we ended up
using it for domestic crime, not for terrorism.
This is happening in other forums. There is something that folks are
calling parallel construction. This is an article from the Electronic
Frontier Foundation by Hanni Fakhoury entitled ``DEA and NSA Team Up to
Share Intelligence, Leading to Secret Use of Surveillance in Ordinary
Domestic Crime.''
Add the IRS to the list of Federal agencies obtaining
information from NSA surveillance. Reuters reports that the
IRS got intelligence tips from DEA's secret SOD unit and were
also told to cover up the source of that information by
coming up with their own independent leads to recreate the
information obtained from SOD.
So let me explain what happens. We once again use a lower standard, a
nonconstitutional standard, the standard we are supposed to be using
for terrorists. We get information on people who are not terrorists,
who may or may not be committing an IRS violation. We tell the IRS.
They know it is illegally obtained information, so then they look for
another way to prove that this information--other information that they
can find--to prove the point that they only knew about it from legally
obtained information.
A startling new Reuters story shows one of the biggest
dangers of the surveillance state: The unquenchable thirst
for access to the NSA's trove of information by other law
enforcement agencies.
As the NSA scoops up phone records and other forms of
electronic evidence while investigating national security and
terrorism leads, they turn over ``tips'' to a division of the
Drug Enforcement Agency known as the Special Operations
Division. FISA surveillance was originally supposed to be
used only in specific authorized national security
investigations, but information sharing rules
[[Page S3165]]
implemented after 9/11 allows the NSA to hand over
information to traditional domestic law-enforcement agencies,
without any connection to terrorism or national security
investigations.
But instead of being truthful with criminal defendants,
judges, and even prosecutors about where the information came
from, DEA agents are reportedly obscuring the source of these
tips.
For example, a law enforcement agent could receive a tip
from foreign surveillance, and he could look for a specific
car in a certain place.
But instead of relying solely on the tip, the agent would
be instructed to find his or her own reason to stop and
search the car.
Agents are directed to keep SOD under wraps and not to mention in
their reports where they got their information.
If we are going to use standards that are less than the Constitution
for IRS investigations, for drug investigations, we ought to just be
honest with people that we are no longer using the Constitution. If we
are going to use the Constitution, then we shouldn't allow evidence
obtained through foreign surveillance and through a lower standard to
be used in domestic crime.
(Mr. CRUZ assumed the Chair.)
Parallel construction, which is basically getting surveillance tips
and then using them and reconstructing and trying to come up with a
different reason for why law enforcement stopped someone, is something
that really--if we are not going to be honest about it, someone has to
do something to fix this.
After an arrest was made, agents then pretended that their
investigation began with the traffic stop, not with the tip they got
from our foreign surveillance agencies.
The training document reviewed by Reuters refers to this process as
parallel construction.
Senior DEA agents who spoke on behalf of the Agency but only on the
condition of anonymity said the process is kept secret to protect
sources and investigative methods. Realize they are also keeping it
secret from a judge, the defense lawyers, and the prosecution.
Some have questioned the constitutionality, obviously, of this
program.
``That's outrageous,'' said Tampa attorney James Felman, a
vice chairman of the criminal justice section of the American
Bar Association. ``It strikes me as indefensible.''
Lawrence Lustberg, a New York defense lawyer, said any
systematic government effort to conceal the circumstances
under which cases begin ``would not only be alarming, but
pretty blatantly unconstitutional.''
Former Federal prosecutor Henry Hockmeier wrote: ``You shouldn't be
allowed to game the system. You shouldn't be allowed to create this
subterfuge. These are drugs crimes, not national security cases. If you
don't draw the line here, where do you draw it?''
This is an article from the Washington Post by Brian Fung entitled
``The NSA is Giving Your Phone Records to the DEA. And the DEA is
Covering It Up.''
A day after we learned of a draining turf battle between
the NSA and other law enforcement agencies over bulk
surveillance data, it now appears that these same agencies
are working together to cover up when those data get shared.
The Drug Enforcement Agency has been the recipient of
multiple tips from the NSA.
Realize also that the NSA is supposed to be investigating foreign
threats. The NSA was not supposed to be doing anything domestically. We
now have them involved in bulk collection, but we also now have them
involved in drug enforcement.
The article continues:
DEA officials in a highly secret office called the Special
Operations Division are assigned to handle these incoming
tips, according to Reuters. Tips from the NSA are added to a
DEA database that includes intelligence intercepts, wiretaps,
informants, and a massive database of telephone records. This
is problematic because it appears to break down the barrier
between foreign counterterrorism investigations and ordinary
domestic criminal investigations.
Because the SOD's work is classified, DEA cases that began as NSA
leads can't be seen to have originated from an NSA source.
So what does the DEA do? It makes up a story of how the
agency really came to the case in a process known as parallel
construction, Reuters explains. Some defense attorneys and
former prosecutors said that parallel construction may be
legal to establish probable cause for an arrest, but they
said employing the practice as a means of disguising how an
investigation began may violate pretrial discovery rules by
burying evidence that could prove useful to criminal
defendants.
The report makes no explicit connection between the DEA and the
earlier NSA bulk phone surveillance uncovered by Snowden.
In other words, we don't know for sure if the DEA's Special
Operations Division is getting tips from the same database that has
been the subject of multiple congressional hearings. We just know that
a special outfit within the DEA sometimes gets tips from the NSA.
There is another reason the DEA would rather not admit the
involvement of NSA data in their investigations. It might
lead to a constitutional challenge to the very law that gave
rise to the evidence.
Earlier this year, federal courts said that if law
enforcement agencies wanted to use NSA data in court, they
had to say so beforehand and give the defendant a chance to
contest the legality of the surveillance. Lawyers for Adele
Daoud, who was arrested in a federal sting operation and
charged, suspect that he was identified using NSA information
but were never told.
Surveys show most people support the NSA's bulk
surveillance program strongly when the words ``terrorism'' or
``courts'' are included in the question. When pollsters draw
no connection to terrorism, the support tends to wane. What
will happen when the question makes clear that the
intelligence not only isn't being used for terrorism
investigations against foreign agents, but it is actively
being applied to criminal investigations against Americans?
Some of the companies have begun to push back on the backdoor
mandates that are coming from government to get into our information.
In one of the most public confrontations of a top U.S.
intelligence official by Silicon Valley in recent years, a
senior Yahoo Inc. official peppered [NSA] director, Adm. Mike
Rogers, at a conference on Monday over digital spying.
The exchange came during a question and answer session at a
daylong summit on cybersecurity. . . . Mr. Rogers spent an
hour at the conference answering a range of questions. . . .
The tense exchange began when Alex Stamos, Yahoo's chief
information security officer, asked Mr. Rogers if Yahoo
should acquiesce to requests from Saudi Arabia, China,
Russia, France and other countries to build a ``backdoor'' in
some of their systems that would allow the countries to spy
on certain users.
``It sounds like you agree with [FBI Director] Comey that
we should be building defects into the encryption in our
products so that the US government can decrypt,'' Mr. Stamos
said. . . .
``That would be your characterization,'' Mr. Rogers said,
cutting the Yahoo executive off.
Mr. Stamos was trying to argue that if Yahoo gave the NSA
access to this information, other countries could try and
compel the company [to do the same].
Mr. Rogers said he believed that it ``is achievable'' to
create a legal framework that allows the NSA to access
encrypted information without upending corporate security
programs. He declined to [be more specific].
``Well, do you believe we should build backdoors for other
countries?'' Mr. Stamos continued.
``My position is--hey, look''--
This is from Mr. Rogers, Admiral Rogers--
``I think that we're lying that this isn't technically
feasible''. . . .
He said the framework would have to be worked out ahead of
time by policymakers--not the NSA. . . .
The back and forth came less than two weeks after Apple,
Inc. chief executive Tim Cook leveled his own criticism of
Washington, saying at a White House cybersecurity conference
in California that people in ``positions of responsibility''
should do everything they can to protect privacy, not steal
information.
Mr. Rogers attempted to parry the questions but also
signaled he welcomed the debate. . . .
Still, Mr. Rogers did little to deflect recent accusations
about the NSA activities. For example, he refused to comment
on recent reports that the NSA and its U.K. counterpart stole
information from Gemalto NV, a large Dutch firm that is the
world's largest manufacturer of cellphone SIM cards.
I think the accusations continue to mount. Everywhere we look, we see
the anger beginning in our tech industry. We see them wondering about
having backdoor mandates built into their product.
I think the Senator from Oregon has been great at pointing this out
and has written several op-eds talking about what the harm is of
leaving basically a portal or an opening for our government but one
that may well be exploited by hackers and may well be exploited by
foreign governments.
Does the Senator from Oregon have a question?
Mr. WYDEN. I think my colleague has made the point with respect to
our government--particularly the FBI Director--actually arguing that
companies should build weaknesses into their systems.
[[Page S3166]]
I note my colleague has been on his feet now for somewhere in the
vicinity of 9 hours, so I think we are heading into the home stretch.
For people who are listening, I think they really are first and
foremost interested in how this Senate, on a bipartisan basis, can come
up with policies that ensure that we both protect our privacy and our
security. As my colleague said, they are not mutually exclusive.
So I think what I would like to do is wrap up my questioning tonight
by talking about how this bulk phone record collection and related
practices is an actual intrusion on liberty, and to start the
conversation, you have to first and foremost get through this whole
concept of metadata. We heard people say: What is the big deal about
metadata? And for quite some time we had Senators saying: What is
everybody upset about? This is just ``innocent metadata.''
Well, metadata, of course, is data about data, but it is not quite so
innocent. If you know who someone calls, when that person calls, and
for how long they talk, that reveals a lot of private information.
Personal relationships, medical concerns, religious or political
affiliations are just several of the possibilities. Most people that I
talk to don't exactly like the government vacuuming up private
information if those persons have done nothing wrong. Now, this is
especially true if the phone records include information about the
location and movements of everyone with a cell phone. And we have not
gotten into this in the course of this evening, but I want to take just
a minute because I think, again, it highlights what the implications
are.
I have repeatedly pushed the intelligence agencies to publicly
explain what they think the rules are for secretly turning American
cell phones into tracking devices. They have now said that the NSA is
not collecting that information today, but they also say the NSA may
need to do so in the future. And General Alexander, in particular,
failed in a public hearing to give straight answers about what plans
the NSA has made in the past.
Now, to be clear, I don't think the government should be
electronically tracking Americans' movements without a warrant. What is
particularly troubling to me is there is nothing in the PATRIOT Act in
addition that limits this sweeping bulk collection authority to phone
records. Government officials can use the PATRIOT Act to collect,
collate, and retain medical records, financial records, library
records, gun purchase records--you name it. Collecting that information
in bulk, in my view, would have a very substantial impact on the
privacy of ordinary Americans.
I want to be clear, I am not saying this is what is happening today,
but I want to make equally clear this is what the government could do
in the future. So my question, as my colleague, who has been on his
feet for a long time, moves to begin to wrap up his comments this
evening, I would like my colleague's thoughts on the impact of NSA
collection of bulk records on innocent Americans. I also would be
interested in his views with respect to why we have not been able to
get the government to give straight answers about the tracking of the
location and movements of Americans with cell phones that took place in
the past. I would be interested in my colleague's thoughts on those two
points.
Mr. PAUL. Well, I want to thank the Senator from Oregon for the great
questions and also for being supportive and really being the lead
figure from the Intelligence Committee trying to make this better.
I think so often our Intelligence Committees don't have enough people
who are really concerned with the Bill of Rights as well as national
defense, so we get a one-sided view of things. I think over the years
you have been able to continue this battle in a healthy way,
understanding both sides of it, both with national security but also
understanding that who we are as a people is important and that we not
give that up--that we not give up our most basic of freedoms in doing
this.
I think that power tends to be something people don't give up on
easily. So when you have power that you give to people, you have to
have oversight. It is incredibly important that we do have oversight on
what we are giving up, but it is also important that we see what has
gone wrong. The FISA Court model hasn't worked to oversee and regulate
the NSA, because when finally a real court looked at this, when finally
the appellate court looked at this, what we find is that the appellate
court was aghast that basically they were maintaining that this was
relevant to an investigation.
Apparently, the way the process worked was the NSA said it was
relevant, but there was no debate or dispute. It was just accepted at
face value. I thought the privacy commission put it pretty well when
they said: Well, how can it be relevant to an investigation that hasn't
yet occurred? We are collecting all the bulk data and we are going to
query it when we have an investigation. You can't argue that it is
relevant to an investigation when there is no such investigation
occurring while they are collecting the data. The privacy commission
said that basically we are turning words on its head if we are saying
something like this is relevant.
So I think the American people are ready for it to end. The American
people think the bulk collection of our records with a generalized
warrant is a mistake and ought to end. I think we are working very
hard, and at this point our hope is that between your actions and my
actions, that hopefully leaders of your party and my party will agree
to allow amendments to the PATRIOT Act.
The goal of being here today has been to say not only to the American
people but to say to the leadership on both sides and to all the
Members that we want an open amendment process, that the discussion of
the Fourth Amendment is an important discussion and that we shouldn't
run roughshod over this by saying there is a limit and a deadline and
we don't have time for debate and we are going to put it off yet again.
I thank the Senator from Oregon for helping to make it happen, but my
hope is that we can get an answer from the leadership of both parties
that they are going to allow the amendments that your office and my
office have been working on for 6 or 7 months now.
Mr. WYDEN. My understanding of my colleague's request--and that was
my point of once again coming back to bulk collection of phone records,
past practices with respect to tracking people on cell phones, and any
policies that may be examined for the future--I think my colleague is
saying it is time to ask some tough questions. Many of these amendments
we have been working on are basically designed to address these issues
where we haven't been able to get answers in the past.
After 9/11, it was clear the people of our country were worried and
there was just a sense that if you were told it was about security, you
were supposed to say, OK. That is it. But that is not the kind of
oversight the Congress--particularly after we had a time stamp on the
PATRIOT Act, we all thought it was going to end, and then it was time
to start asking the tough questions. And not enough tough questions
have been asked. And my colleague in the amendments we are talking
about really seeks to get answers and use that information to change
practices on a lot of these areas that have really gotten short shrift
in the past. I appreciate my colleague talking about the FISA Court in
connection with this. This is, for listeners, the Foreign Intelligence
Surveillance Act Court--certainly one of the most bizarre judicial
bodies in our country's history, created to apply commonly understood
legal concepts, such as probable cause, to the government's request for
warrants to track terrorists and spies. But over the last decade, the
FISA Court has been tasked with interpreting broad new surveillance
laws and has been setting sweeping precedents about the government's
surveillance storing, all of it being done in secret.
And I will say--and I would be interested in my colleague's thoughts
on this--that it is time that the court's significant legal
interpretations be made public--be made public so there are no more
secret laws; that the people of this country have the chance to engage
in debate about laws that govern them. I also think there ought to be
somebody there who can say on these questions where there are major
constitutional implications, there ought to be somebody there who can
say: Look, there may be other considerations than the government's
point
[[Page S3167]]
of view. But transparency here is critical so that Congress and the
courts can hold the intelligence community accountable. I want to
mention, once again, we are talking about policies. We are not talking
about matters that are going to reveal secret operations or sources and
methods. We are talking about policy.
So I think it would be helpful, again, as we move to wrap up, if my
colleague from Kentucky could outline some of the reforms in the
foreign intelligence court area that he thinks would be most helpful in
terms of promoting transparency and accountability, that do not
compromise sources and methods--because I think my colleague has some
good ideas in this area--and what, in my colleague's view, would be
most important with respect to getting reforms in this secret court in
a way that would ensure more transparency for the public and still
protect our valiant intelligence officials who are in the field.
Mr. PAUL. I think that is a good question, and the Senator's office
and my office have worked for a while to try to come up with FISA
reforms. One of them is sort of in the USA FREEDOM Act but maybe could
be better, saying that there ought to be a special advocate so there is
an adversarial proceeding.
One of the problems in the USA FREEDOM Act, as it is written, is that
the advocate is only appointed by the FISA Court and doesn't have to be
appointed by the FISA Court. It may well be that a FISA Court that has
given a rubberstamp to bulk collection may not be as inclined to give a
special advocate.
I also think it is important, as the Senator mentioned many times,
that we should get outside of a secret court to a real court, where you
really have an advocate that is actually on your side, I think allowing
for an escape hatch for people to appeal.
For example, if you are being told by a FISA Court that bulk
collection of all the phone data in our country is legal, you should
have a route to an appellate court, an automatic route out of FISA to
an appellate court. I think the appellate courts are fully capable of
redacting, going into closed session if they have to, but then you have
a real trial, with a real advocate on both sides. I think that is
important as well.
I do have one question or a question that you may be able to reframe
into a question; that is, can you give the public a general idea of
what percentage of the overall problem of collecting Americans' data is
in the form of bulk data and what percentage do you think is coming
from Executive order and what do you think is coming from the 702
backdoor collection of data.
Mr. WYDEN. I would say that all of the matters we have talked about
this afternoon, this evening, would be significant concerns with
respect to ensuring the liberties of the American people are protected
without compromising our safety. Let's check them off: bulk phone
collection, millions and millions of phone records of law-abiding
Americans; the Executive order No. 12333 that we talked about today,
another very important area; and then section 702, the Foreign
Intelligence Surveillance Act area, where a foreigner is the target and
the records of Americans are swept up. So I think we are addressing
exactly one of the concerns that has come out in the last few days with
respect to what Americans are concerned about.
I know there has just been a brand-new major survey that has been
done. My colleagues may have touched on it sometime in the course of
the day. Americans particularly want to know what information about
them is being collected and who is doing the collecting. In each of
these three areas that I mentioned, there are substantial questions
with respect to the privacy rights of Americans.
Mr. PAUL. Well, one of the comments that we went through tonight was
an opinion by one of the attorneys in the Bush administration. They
said, basically, that there were authorities that they were given that
were inherent authorities under article II that gave them the right to
collect data on Americans. But they also then concluded by saying that
Congress had no business at all reviewing this data; that there was no
authority--that they were basically powers given to the President and
that Congress has no ability--I guess I would be interested, in the
form of a question, if the Senator can answer whether he believes there
are article II powers of surveillance of American citizens that
Congress has no business questioning?
Mr. WYDEN. My colleague is--and I remember those days well--basically
summing up the argument of the Bush administration. I and others pushed
back and pushed back very hard, because it would essentially, if taken
to this kind of logical analysis, basically strip the legislative
branch of its ability to do vigorous oversight.
So my colleague has summed up what was the position of the Bush
Administration. But like so many other positions that were taken during
that period of time, once there was an opportunity to make sure people
understood how sweeping it was--what my colleague has described is an
extraordinary sweep of executive branch power basically relegating any
role for congressional oversight to that much--and not on the central
question. So my colleague has summed up what the Bush administration
said in those early days.
I had joined the Intelligence Committee shortly before 9/11. I was
struck, because this really was the first example I saw of just how
some in the executive branch would try to lay out a theory of executive
branch power that really just takes your breath away.
Mr. PAUL. I guess a followup to that would be this: Are those
arguments still being floated from this administration that there are
article II powers? There is a debate going on over this Executive Order
12333. The question is whether people are still trying to maintain that
Congress has no ability to oversee or review it?
But I have seen, at least in the lay press--I think they say in the
lay press that there is some special investigation. Without going into
detail, is there some kind of investigation or evaluation of the
Executive order being done by us or one of the congressional bodies?
That was in the lay press.
Mr. WYDEN. Yes, what I can tell you is that I think there have been
some changes, some improvements. But it continues to be a challenge.
The reality is you kind of look back from that period. In those early
days, for example, John Poindexter made a proposal for something called
Operation Total Information Awareness. It would have been the most
sweeping invasion of privacy, in my view, in the country's history. We
decided, much like when my colleagues talked about those early
interpretations in the Bush administration, that this was an
unacceptable expansion of executive branch power.
But it was not until a young intern who was in our office late one
night found some of the true excesses of this project--in fact, this
young intern found that the program would actually encourage, as part
of an experiment, debate about assassinating foreign leaders. People
just found that so out of the mainstream that when we brought it to
light, Operation Total Information Awareness was gone within about 48
hours.
So we have seen--my colleague highlighted the Bush administration
proposal to basically have unchecked executive branch power in
Operation Total Information Awareness. My colleague asked about 12333,
which we have been reviewing.
So, yes, it is going to remain an ongoing concern, an ongoing
challenge, because I think there is a sense that the executive branch
is the only one that can really deal with this kind of information in a
timely kind of fashion. Well, what we have seen, with respect to bulk
phone record collection, is that this has been a program that has not
been about timely access to relevant information.
Experts with national security clearances--we talked about those
individuals this afternoon--said this program does not make us safer,
and we could get rid of it and obtain the information by conventional
sources. So I think we have begun to reign in this unchecked executive
branch power. I think a big part of it has been the very valuable work
my colleague has done in terms of trying to highlight these kinds of
practices and why I have appreciated the chance to work closely with my
colleague since I came to the Senate.
Mr. PAUL. I think one of the most exciting things probably is the
court case--the Second Circuit Court of Appeals--and their ruling. My
hope,
[[Page S3168]]
though, had been that it would go to the Supreme Court. My
understanding is it has been remanded to a lower court. I think one of
the things that we really need is that we need a ruling that updates
Maryland v. Smith. We need a ruling that talks about the fact that most
people's records are being held in a virtual fashion. I think there
needs to be a ruling that comes from the Court that acknowledges that
you still retain a privacy interest in your records, even when they are
being held outside of your house.
The idea of old fashioned papers in your house--the concept is good,
that we should protect that privacy. But I think also the concept
technologically is that you know you will not have papers in your
house, but you will have private matters that will be held virtually
outside the house--and whether or not the Fourth Amendment protects
those. You often have advocates from the government who say that the
fourth amendment does not apply to any records once they are outside
your house or in other hands. I really think that you do not give up
your privacy interest when you let someone else hold your records, that
you still maintain an interest in privacy even though someone else
holds these records.
Mr. WYDEN. I think my colleague has made an important point with
respect to the Smith case. The Smith case was not made for the digital
age. That is a big part of what we have sought to do throughout this
debate, is to try to make sure that people really understand the
implications in the digital age of what these policies, you know, mean
for their privacy.
I see my colleagues are on the floor and I want to give them some
time. But since you mentioned this question of the court cases, I think
there was really striking language recently by Judge Leon of the U.S.
District Court for the District of Columbia, talking about what the
scooping up of all of these records really means. Judge Leon said, ``a
few scattered tiles of information'' when collected in mass, can
``reveal an entire mosaic'' about a person including their religion,
their sexual orientation, medical issues, and political affiliations.
So you combine what the judge has described, I think correctly, as
bulk collection, outdated court cases such as the Smith case, which
really was not updated in terms of what we would be facing in the
digital age, and I think this really combines to create policies that
have a chilling effect on liberty and liberty for innocent law-abiding
Americans.
So I want to say it again to my colleague who is now approaching 10
hours on his feet. I very much appreciate his focusing on these issues.
We have a lot of work to do because we know that there has been a
pattern in the past where when we really get down to the final days--
the last couple of days--there is always a lot of pressure to go along
with some kind of short-term extension. That has been the pattern year
after year, every time there has been an expiration of the act.
I think what has been shown today is that kind of business as usual
is just not going to be acceptable any longer. You have made that
point. I want it understood that we are going to be pursuing the effort
to make sure that this time we are not just going to re-up a bad law,
re-up a flawed policy and say that it is OK to continue a program.
This was reauthorized, in effect, by the President a few months ago.
This is going to be the last extension. This has got to be the last
extension. I am committed to working closely with the Senator and our
colleagues to make sure that that is the case and to take the steps
necessary to ensure this is finally the last extension of a badly
flawed law. I thank my colleague for his good work.
Mr. PAUL. Thank you. I think the American public is ready to end bulk
collection. I think there is a bipartisan, across-the-aisle approach
that people want to end bulk collection. The time is now. We cannot
keep extending this.
I think probably the biggest deal is that the PATRIOT Act does not
even justify this. This is a program that needs to end because even
those who read the PATRIOT Act, even those who love the PATRIOT ACT,
acknowledge that the PATRIOT Act does not even give permission for
this. This is something we are doing that there is no permission for.
It has to end. I think the American people will be very disappointed in
us as a body if it does not end.
This is the time to do it. I agree with the Senator. We are going to
do everything we can to stop it. I see the Senator from Utah. Does the
Senator from Utah have a question?
Mr. LEE. I do. At the outset of my question, I would like to point
out that while I disagree with you, Senator Paul, with regard to the
specific question of whether we should allow section 215 of the PATRIOT
Act to expire in its entirety, I don't believe we need to do that. I
would prefer that we pass the USA FREEDOM Act as passed by the House of
Representatives by an overwhelming margin of 338 to 88 last week.
While we disagree on that issue, I absolutely stand with you, Senator
Paul, and I believe with the American people, on the need for an open,
transparent process and debate regarding this issue. I also stand with
the Senator with regard to the belief that bulk metadata collection is
wrong. It is not something that we can support. It is not something
that the American people feel comfortable with and that it is
incompatible with the spirt if not the letter of the Fourth Amendment
to the Constitution of the United States that we have all sworn an oath
to uphold and protect and defend.
Let's remember the text of the Fourth Amendment. The text of this
amendment, penned in 1789, ratified in 1791, says: ``The right of the
people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated, and
no Warrants shall issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be searched, and
the persons or things to be seized.
These are not idle words. They are not surplusage. They are not there
just for ornamental purposes. They are there to put important
limitations on the power of government, to make sure that when
government goes after things--things that are important to our personal
lives, things that are part of our houses, things that are part of our
papers, our personal effects--those things cannot just be grabbed
randomly by government.
Government has to have a reason for going after them, and government
has to be constrained in some meaningful way in the way it goes after
them.
When the government relies on a warrant, the warrant needs to
describe the things or the places to be searched with particularity.
The people subject to them need to be identified with some
particularity.
And, you know, these words were meant to be flexible. They were meant
to be molded from time to time in different circumstances. They are not
absolute in their terminology, and that is one of the reasons they have
endured for well over two centuries and why they have been able to
adapt to changes in technology. But there is not any reasonable
construction of this language that I think can countenance what the NSA
is doing and what we are talking about here, which is the bulk
collection of telephone metadata.
Now, what is happening is that the NSA is getting these orders, these
orders from the Foreign Intelligence Surveillance Court, and these
orders basically tell the telephone service providers: Give us all your
data. Give us all your records, all of them. We don't really care
whether they are relevant to an ongoing investigation of a particular
person or of a particular terrorism ring or a particular foreign
intelligence group of activities. We want all of them. Send all of them
to us. We are going to put them all in a database and we are going to
search them when we feel like it.
Now, I don't dispute the claim made by the NSA that there are a
limited number of people who have access to this database, nor do I
dispute, at least for purposes of this discussion I am not going to
dispute--and I have no basis for refuting--the assertion that the
people who work at the NSA are well intentioned, that they have our
national security interests at heart, that they are there to protect
us.
But even if we don't dispute any of those things, even if we accept
all of those things as a given, we have to acknowledge the very real
risk that the same people who work there now might not be--in fact, we
are certain they
[[Page S3169]]
will not be--the same people who work there 1 year from now or 2 years
from now or 5 years or 10 years or 15 years from now.
And we know something about human nature, which is that humans, when
given power, will sometimes abuse that power. Sometimes they will abuse
that power to the detriment of others. Sometimes they will do it for
personal financial gain. Sometimes they will do it for political gain.
Sometimes they will do it in order to further certain agendas.
That is exactly why it is so important to put boundaries around the
authority of government. That, of course, is what the Constitution is.
This is our set of boundaries. This is our fence around government
authority. It is there for a reason. It is there to make sure the
American people are protected against government.
So, first, the Founding Fathers put in place this structure that
explained how government would work. It established the government, and
then it carefully positioned this series of fences around the
government to make sure power wasn't abused against the people.
It is interesting, when the PATRIOT Act was enacted and when it was
subsequently reauthorized several years later, Congress put in place a
relevance requirement. Congress put in place--in section 215 of the
PATRIOT Act--a requirement that the business records that were obtained
by the NSA, pursuant to section 215 of the PATRIOT Act, had to be
relevant to an investigation, relevant to some things they were doing.
Here again, as with the language of the Fourth Amendment of the
Constitution, there is some play in the joints of the term
``relevance.'' Some things might be relevant in one situation and not
another. Whether it is relevant is going to depend on a lot of facts
and circumstances pertinent to the investigation in question, but it
stretches the term ``relevant'' or the concept of relevance beyond its
breaking point, beyond any reasonable definition.
If you deem something to be relevant, so long as it might in some
future investigation--one that has not yet arisen--become relevant,
such that you had to gather every record of every phone call made in
America, such that NSA wants to go after every record of every phone
call made by every American going back 5 years, storing that series of
records in a single database that can be queried for up to 5 years in
advance.
Let's just go through this exercise for a minute. Think to yourself,
how many phone calls have I made in the last 5 years? How many distinct
phone numbers have I called in the last 5 years?
Well, if somebody has called 1,000 phone numbers--or, let's say, made
phone calls to 500 phone numbers and received phone calls from another
group of 500 phone numbers, for a total of 1,000 phone numbers over the
last 5 years, then that is 1,000 numbers. Then the NSA goes out one hop
beyond that and connects each person, each phone number with whom the
original person had contact. Let's assume that each of those phone
numbers had, in turn, contact with 1,000 phone numbers. You get to 1
million phone numbers pretty quickly.
But each time the NSA collects these data points, each data point
taken in isolation might not say much about that person. But as our
friend and our colleague from Oregon noted a few minutes ago, it is by
using that combination of data points, by aggregating all of those data
points together, someone can tell an awful lot about a person.
In fact, there are researchers who, having used similar metadata and
similar sets of metadata in their own databases, have concluded that
they can tell what religion a person belongs to, what political party
someone belongs to, their degree of religiosity, and their degree of
political activity.
They can tell what someone's hobbies are. They can tell whether they
have children, whether they are married. They can tell how healthy they
are, what physical ailments they might suffer from. In many instances,
they can tell what medications they are on. And all of these things are
made more efficient by virtue of the automation in this system.
So while it is true people point out that under section 215 of the
PATRIOT Act, under this particular program, the NSA is not listening to
telephone conversations. They are not listening to them.
Interestingly enough, this is very often a straw man argument that is
thrown out by those who want to make sure that section 215 of the
PATRIOT Act is reauthorized without any reforms. They claim that those
who are opposed to this type of action are out there falsely claiming
that the NSA is listening to phone calls over this program.
Well, that accusation of falsehood is, itself, false. That accusation
of falsehood is, itself, a straw man effort. It is a red herring. It is
a lie. It is a lie intended to malign and mischaracterize those of us
who have genuine, legitimate concerns with this very program, because
the fact is we don't make that argument. The argument we are making is
that the NSA doesn't even need to do that. The NSA can tell all kinds
of things about people just by looking at that data.
Because it is automated and because it is within a system that
operates with a series of computers, they can tell very quickly it is a
lot less human resource-intensive than it would be if they were having
to listen to countless hours of phone conversations. It is a lot more
efficient.
Again, I want to be clear. I have no proof that the NSA is currently
abusing this particular program. I am not aware of any evidence that
such abuse is occurring. And I am willing to assume, for purposes of
this discussion, that is not occurring, that the men and women who work
at the NSA have nothing but the best interests of the American people
and American national security at heart.
But how long will this remain the case? And how safe, how fair is it
of us to assume that will always be the case? We can scarcely afford--
for the sake of our children, our grandchildren, and those who will
come after them--we cannot afford to simply assume this will always be
the case.
We have to remember what happened a few decades ago when Senator
Frank Church and his committee looked into wiretap abuses that had
happened within the government. We have to remember the Church report
that was released at the end of that investigation.
That report concluded that every Presidential administration from FDR
through Richard Nixon had utilized law enforcement and intelligence-
gathering agencies within the Federal Government to go engage in
political espionage. So that technology, which was then only a few
decades old, had been abused. It had been abused for a long time. The
abuse of this technology had gone, of course, unreported for many
decades, but it had nonetheless been occurring.
Again, I don't know, I can't prove it. I have no evidence that such
abuse is going on right now. But I think all of us, in order to be
honest with ourselves, would have to acknowledge that there is at least
some risk that if it is not occurring now, at some point it will occur
in the future. This temptation is simply too strong for most mortals to
resist, particularly in an area such as this where there is, with good
reason, very little ability for the outside world to observe what is
going on inside that particular government agency.
Now, that is exactly why I happen to support what was passed by the
House of Representatives last week. What was passed by the House of
Representatives last week in the form of the USA FREEDOM Act was
something that would require the NSA to, instead of going out to all
the telephone companies and saying, send us all of your records, we
want your calling records, just give us your records, we don't care
whether it is relevant to a particular phone call, particular to a
specific number that was itself involved in terrorist activity or
foreign surveillance activity, we don't care about that, just send it
to us--far from doing that, what the USA FREEDOM Act would require is
for the government to show that they needed records related to a
telephone number that was itself involved in some kind of activity.
They wouldn't have the ability to go to all the phone companies and
just say send us everything.
They would instead have the power to get a court order, to get those
[[Page S3170]]
records of those phone calls that might well be connected to terrorism
based on their contact with a phone number that was related to such
activities or their contact with somebody else, with some other phone
number that was, in turn, having some kind of communication with
someone involved in those activities.
Not all of us agree on this and, Senator Paul, you and I don't agree
on this particular bill, but we do agree on the underlying issue. And
we also agree that the Senate works best, that the Senate serves the
American people well when it lives up to its self-described reputation
as being the world's greatest deliberative legislative body. We would
all be better off if we were able to put this bill on the floor right
now--if this bill were able to come to the floor and it were subjected
to open, honest debate and discussion so the American people could see
we were debating this and so that you, Senator Paul, and some of our
other colleagues who have ideas as to how we could make this
legislation better would have the opportunity to introduce, in the form
of an amendment, improvements to this legislation.
I heard you outline quite articulately just a few hours ago some very
thoughtful reforms, some very well-thought-through improvements,
amendments that you would make to this legislation. I think we would
all be better off if we took that kind of approach.
Now, we have seen in the last few months what can happen. When we
came back in January, we saw that the desks in the Senate Chamber had
been rearranged. Many of us were pleased. We didn't shed a tear at the
realignment of the desks, and we have noticed that this realignment of
the desks reflected a change in the political attitude among Americans.
But, more importantly for us, it was the precursor to some very
positive developments in the Senate.
We saw that within just a few weeks after this shift in power had
occurred, we had cast more votes on the floor of the Senate than we had
in the entire previous year. Within a few months, we had cast more
votes on the floor of the Senate than we had cast in the 2 years
previous to that. This was a good sign.
This is a good sign. It is not just because we are here and we cast
votes; it is because those votes represent something--they represent
the fact that we are actually debating and discussing and we are
allowing each Senator to have his or her views heard. We are putting
ourselves on record as to what we believe represents good policy and
what does not.
I think we would be in a much better position to address the national
security needs of our great country if we had such an opportunity with
respect to this legislation. That is one of the reasons I came to the
floor yesterday, along with one of our colleagues, the senior Senator
from Vermont, and asked unanimous consent to bring this bill--the
House-passed USA FREEDOM Act, H.R. 2048--to the floor and to have open
debate and discussion and an open amendment process, with the
understanding we would turn back to the trade promotion authority bill
as soon as we had properly disposed of this legislation, as soon as we
had finished debating and discussing it, voting on amendments and
voting on the legislation.
I am a big believer in free trade. I like free trade. I think free
trade is good. I would like to see us get to both of these pieces of
legislation. But importantly, H.R. 2048 is a piece of legislation that
has kind of a fuse attached to it. Section 215 of the PATRIOT Act is
set to expire at the end of this month, and many of us believe we ought
to at least have a debate and discussion before that happens, a debate
and discussion about what, if anything, would take its place, about
whether we need something to put in its place and if so, what that
might look like. So that is why we made this request. This request we
regarded as a very reasonable one was, unfortunately, one that drew an
objection, so we were not able to bring it to the floor.
The U.S. Court of Appeals for the Second Circuit, based in New York,
recently addressed this issue of whether section 215 of the PATRIOT Act
can appropriately be read to authorize the NSA to engage in this bulk
metadata collection program. The U.S. Court of Appeals for the Second
Circuit answered that question in the negative and concluded there is
no statutory authority for the NSA to collect this type of metadata. It
doesn't have the authority. It cannot collect bulk metadata on this
basis.
As the Second Circuit concluded, the business records sought under
that provision have to be relevant. There has to be some relevance to
something they are investigating. And of course their only relevance
here, under this program, is that they exist; it is that they represent
phone calls made by someone in the United States, that they were made
under a telephone network in the United States. That can't be the
answer. That cannot reflect a proper understanding of this concept of
relevance that is in section 215 of the PATRIOT Act. It can't, and it
doesn't.
This court ruling is one of the many reasons why we need to be having
this debate and why we shouldn't be willing to simply reauthorize
section 215 of the PATRIOT Act with the understanding that the NSA will
continue operating this program as is if we reauthorize it.
It is one of the reasons why I have been so insistent on having this
discussion and so unwilling to support even a shorter term
reauthorization of the PATRIOT Act--because they are interpreting
section 215 in the PATRIOT Act beyond its logical breaking point.
We have to remember that the Constitution is worth protecting. It is
worth protecting even when we can't point to anything bad that is
happening right now, even when we can't point to any specific abuse
that is occurring.
Bulk data collection is itself a type of abuse. There is a type of
constitutional injury even though we can't point to anything secondary
from that. We can't point to any horrible secondary effect from it; it
is in and of itself wrong.
The wrongness of this program can be illustrated when we take to its
logical conclusion the very arguments presented by the NSA for this
type of activity. Let me explain. The metadata that is collected by the
NSA right now relates exclusively to telephone calls. The records they
collect involve records of who you call, when you called them, who
calls you, when they called you, and how long the phone call at issue
lasted. That is it.
But if the NSA is correct in its interpretation of section 215, which
it is not, but if it were correct, there is absolutely no reason why
the NSA could not also collect a number of other types of metadata--
metadata records, for example, involving the use of your credit card,
involving hotel reservations, involving airplane reservations, metadata
regarding emails you have either sent or received, who you sent them to
and who you received them from, your Internet traffic, where you have
purchased online, who has purchased something from you online, and all
kinds of things. From that metadata, they could clearly paint a much
more vivid picture of you, a profile built as a mosaic from a billion
data points. They can tell everything about you from that type of
metadata.
Sure, the NSA is not collecting that type of metadata right now. They
are not doing it right now. But if we reauthorize this without
limitation, if we reauthorize section 215 of the PATRIOT Act and we
don't include any kind of restriction on it, there is absolutely no
reason why the NSA couldn't conclude tomorrow or next week or a year
from now or later that it wants to collect this kind of data as well.
I would suspect nearly all Americans would be shocked and horrified
to think the NSA could and would and might at some point in the future
collect that kind of information on where you shop online, your credit
card bills, your hotel reservations, things like that, things that
could easily be connected back to an individual and easily give rise to
abuse either for partisan political purposes or for some other
nefarious purpose.
I also want to point out that those who are in favor of this program
and those who vigorously defend its constitutionality routinely rely on
a decision rendered by the Supreme Court in the late 1970s in a case
called Smith v. Maryland. They point out that in Smith v. Maryland the
Supreme Court upheld the constitutionality of some police activity that
involved the collection of calling data. The Supreme
[[Page S3171]]
Court concluded in that case that there was not a sufficiently
significant expectation of privacy in records of calls that somebody
had made and received such that the collection of that data would
require a search warrant.
I am not altogether certain that Smith v. Maryland was decided
correctly, but let's assume for a minute it was decided correctly and
just address the fact that it is a decision that remains on the
books. It is precedent that is followed throughout the courts of the
United States. That is fine. Let's just accept the fact that it is on
the books. But it is very, very different--not just quantitatively
different but also qualitatively different--when you are dealing not
with one target of one single criminal investigation and not just with
maybe a few weeks of calling records but when you are dealing with 5
years of calling records not on one person, of one target in one
criminal investigation by one group of law enforcement officers, but
300 million people stretched out over 5 years.
That calling data becomes more significant, moreover, when Americans
become more attached to their telephones, when their telephone isn't
something that is just plugged into the wall but something that is
carried with them every moment of every day. This, by the way, adds to
the potential list of metadata that could be collected because of
course many people now have telephones that track their location. I
don't see any reason why, based on the interpretation of section 215 of
the PATRIOT Act and the interpretation of the Fourth Amendment that the
NSA has put forward, they couldn't start collecting the location data
as well, which would further undermine privacy issues.
So Smith v. Maryland, whether you like it or not, is precedent. It is
precedent that is followed by the courts in America, but it is not the
end of the story. It certainly doesn't get you over the hump when it
comes to this type of collection. Saying that what was covered by Smith
v. Maryland is the same thing as what the NSA is trying to do here is a
little bit like comparing a pony ride to a ride to the Moon and back.
They both involve some form of transportation, but they are worlds
apart, drastically different, and so much so that they can't really
even be compared.
Our technology has changed dramatically over the years--so much so
that if we don't stop and think about it, we might not even recognize
it.
A few years ago when my son James was about 10 years old, he came up
with a really good idea that he announced to us. He said: You know, I
have been thinking about it, and I am going to invent something.
We said: What is that?
He said: Well, I am going to invent a telephone that is attached to
the wall. It will be attached to the wall so it can't be removed. It
will have a wire that runs into the wall, and that is how the telephone
will work.
We looked at him and wondered what gave him this idea and what gave
him the idea that that was somehow unique.
We said: Well, first of all, what makes you think that hasn't already
been invented? And secondly, why would you want to do that?
He said: Well, I think it is a great idea because it is the only way
you wouldn't lose your phone.
Only then did we realize what he was saying. Only then did we realize
that what he was telling us was that during his lifetime, he had never
seen in our home a phone that was attached to the wall. He had seen
cell phones and he had seen cordless landline phones, and he had seen
telephones get lost from time to time.
So our technology does change, and as our technology changes, we have
to take that into account. Well, our technology has changed now to the
point where our government can learn all kinds of personal facts about
us through metadata, through the type of metadata involved here, and it
is only getting more and more this way every single day as we transact
more and more of our day-to-day business over our telephones and as our
telephones become more sophisticated, more portable, and more capable
of processing more and more data.
The text of the Fourth Amendment I quoted just a few minutes ago is
still very relevant today. The fact that the Fourth Amendment refers
specifically to the right of the people to be secure in their persons,
their houses, and their papers and effects is still relevant today and
should remind us of the fact that our persons, our houses, and our
papers and effects more and more really become a part of this--they
really become a part of our telephones.
Our papers are not always physical papers. More and more, they are
not. Increasingly, we are even asked to sign documents that previously
would have been physically signed on a hard copy, a stack of papers--
increasingly you can do business transactions without ever handling a
physical paper. Increasingly, you can do those things electronically.
People often prefer to do it that way. It saves time. It saves money.
But as more and more of our lives are played out on these portable
digital devices, it becomes more and more important for us to be
remember there are Fourth Amendment ramifications when the government
wants to get involved in what we do on those same devices.
That is why it is not really fair any more to simply rely reflexively
on Smith v. Maryland to say this is all constitutional, nor is it fair
to say that your phone company already has this record, so there is no
reason why the government shouldn't have it. I actually don't even see
that comparison.
Some people think this is somehow persuasive. I don't find it
persuasive at all. There is a world of difference between allowing a
private business with which you have voluntarily chosen to interact to
have your business records, particularly when it is a private business
that you want to have that information so that private business can
keep track of how much you owe them or how much they owe you--there is
a world of difference between a private business entity having those
records and the government having those records.
The worst thing that a private business can do is perhaps send you
too many emails that you don't want asking you for more business or
maybe it can give some of your personal data to somebody else who will
in turn make phone calls you don't want to receive or send you emails
you don't want to receive.
That private business has no ability to put you in prison. That
private business has no ability to levy taxes on you. That private
business has no ability to make your life a living hell in the same way
that your government has the ability to do those things--not just the
ability but, lately, with increasing frequency, with strong and
seemingly irresistible inclination.
This is not a victimless offense against the spirit and, arguably,
the letter of the Constitution. These kinds of things have real-world
ramifications. They ought to be troubling to all of us, and we ought to
want to do something about them.
So for these reasons, Senator Paul, I would ask you, don't you think
it would be much better to put this bill on the floor now and allow for
an open amendment process, one in which you and each of our other
colleagues could have an opportunity to provide input, to try to
improve the legislation, and to try to do something meaningful with
this legislation, rather than just simply ignore it, pretend it didn't
exist, sweep it under the rug or wait until we are up against a cliff--
this critical cliff between when the Senate, much to my chagrin and the
chagrin of many of our colleagues, is set to adjourn and leading up to
the moments when this program is set to expire? Wouldn't we be better
off to take this up and debate this under the light of day, under the
view of the American people?
Mr. PAUL. I think the Senator from Utah asked a great question, and I
think he framed the debate over the Fourth Amendment very well.
I think if we asked to put the bill on the floor at this hour, we may
not be able to find anybody awake to ask permission to have the bill
this evening. We haven't been able to locate anyone to get the bill
this evening, so I am afraid we will have to say no.
But we have been asking for a full and open debate. Your solution, as
well as mine, as well as Wyden's, as well as other's, is to have a full
debate on the floor for this.
There were a couple of things you said that I thought were
particularly worth commenting on.
[[Page S3172]]
People say that because there is no evidence that the program is
being abused, there is no evidence that we are searching the records of
certain people of certain race or religion or abusing people for some
reason, that is proof somehow that no abuse is occurring.
But I agree with you that the collection alone is an abuse in and of
itself. To me, the basic point and the biggest part of the point is
that what we are dealing with is something that is a generalized
warrant.
There is nothing specific about collecting all of the records from
all Americans all of the time. There is nothing specific about the name
``Verizon.'' I tell people that I don't know anybody named Mr. Verizon.
So that can't be a specific individualized warrant. That is a general
warrant. That is what we fought the Revolution over--to individualize
warrants, to individualize what we were requesting, and, above all,
probable cause.
We accepted a lower standard to go after foreigners, to go after
terrorists. And part of me says that maybe we could do that just for
terrorists. But now we are using it for domestic crime.
One of the biggest things I would like to change is that nothing
within the PATRIOT Act or any of this could be used to convict somebody
in a domestic court.
Section 213--sneak-and-peak--99.5 percent of the time is used for
domestic drug crime now. We have the NSA sharing data that is supposed
to be collected on foreigners with the domestic DEA and then making up
another scenario where they might have heard about this. But they
didn't really hear about this from the NSA.
I think the public at large thinks we have gone way too far--way too
far with the bulk collection records. It is not only what we have done,
but it is just that there is absolutely--even in the PATRIOT Act, which
I object to--no justification for collecting the records. The idea that
records could be relevant to an investigation that has not yet occurred
puts logic on its head, puts it topsy-turvy to where words don't mean
anything.
I am very concerned that there is a lot of surveillance that we don't
know about, not only through the PATRIOT Act justification but through
Executive order justification. It concerns me that there are still
people who are arguing that article II gives unlimited authority to the
President, that there is no congressional check and balance to the
President with regard to surveillance. There are people making that
argument--that there is no limitation to Presidential power.
I think one of the best things our Founding Fathers gave us was this
check and balance so we had coequal branches. I think it is a great
thing with the Fourth Amendment that a warrant had to be signed by
somebody who wasn't a policeman, who wasn't a soldier.
This is one of the additional things I would like to do because we
don't get to talk about this very much. We have the ability, and we are
talking about the bulk collection of records, but we should also talk
about whether we should have hundreds of thousands of warrants written
by policemen, by FBI agents. I think warrants should have a check and
balance where you have a judge.
There is something that is so civilizing and something that levels
the playing field and keeps abuse from happening when a policeman
tonight in DC, in front of a house, who wants to go in, is calling
someone who is not in hot pursuit and who hasn't just had a physical
altercation with the people they are chasing--someone who is
dispassionate and unconnected to the heat of the crime--who is going to
give permission for this policeman to go into a house.
We say that a man's house is his castle, and he can defend it. That
was the whole idea--that things within the castle were the man's or
woman's, we would say now. But it is not only that your records are in
the castle anymore. They are in the cloud. And records are virtual. We
have whole households that have no paper records.
The amazing thing about records is they are now saying that with
metadata records, they can discover more than we could have discovered
in a lifetime of looking at your personal letters in your house,
because so much information is there, so much can be connected between
the dots between all of these things.
I am still not convinced that we aren't collecting data on credit
cards, on emails. I think some of this is done through the Executive
order that most of us are not privy to. The only people that know
anything about Executive Order 12333 and what they are doing on it are
people on the Intelligence Committee. I am not convinced we aren't
collecting email data.
They currently say that your email--this is the bill you promoted--
after 6 months, your email has no protection. Before 6 months, I think
the only protection is to the content, not to the header, not to the
addressee.
We currently have the opinion. We desperately need the Supreme Court
to rule on this. We have the Smith v. Maryland decision, which was in
the premodern age, as far as data goes and as far as your papers being
held. We desperately need a decision.
My hope was that the appellate court decision would go to the Supreme
Court. But my understanding--being just a doctor--is it went the other
way. It has been remanded lower and may never make it to the Supreme
Court. I don't know that. But I think we do need something at the
Supreme Court level.
There have been many who are now arguing that the appellate court--
this again from a physician, not a lawyer--is really binding and that
there could eventually be some legal injunction against what the
government is doing.
But for goodness sake, it perplexes me that the President says: Oh,
yes, we need a balanced approach, and I am listening to my privacy
commission. I am listening to the review board. Yet I created this out
of whole cloth as an Executive order, and I am unwilling to stop it
even though the appellate court has told me it is illegal.
He is unwilling to stop it. I think that sort of defines
disingenuous--that he is going to stop it as soon as Congress stops it.
It is so hard to get anything done here. We have had vast
majorities--not only for the USA Freedom Act but for Thomas Massey's
act. We had a vast majority over there to defund it--for Justin Amash,
for defunding things that we were doing--big majorities. It is another
evidence that the Senate is further distanced from the people, that the
House is closer. They are hearing the message stronger.
I think the message is a strong one, and the message is that nobody--
I mean, really, the vast majority of Americans are very unhappy with
having all of their records collected. That really to me gets back to
the whole idea of whether we should accept or validate general
warrants. It is still part of my concern, a little bit, with the
reform. I want the reform--it could go a long way if we no longer have
the ability to put the word ``corporate'' in there and if it were
specifically individuals. And I think we have a chance to go maybe even
a little further than we have gone in the reform that is being offered
to say that we shouldn't be able to request all of the records from a
corporation, because there is some retained privacy and there is some
retained property interest even in your records. And I think there
always has been.
They talk about an expectation of privacy. I would think that if you
have a contract, when you sign the agreement, you are agreeing to a
privacy contract with an Internet provider or a search provider or a
telephone company. I think that is indicating, as they talk about in
the cases, an expectation of privacy. Well, I have signed an agreement
with the company, and they promised me and I promised them. I would
think that for certain is an expectation of privacy in the eyes of the
court.
(Mr. RUBIO assumed the Chair.)
So I don't understand how they can argue we have completely given up
our records, and that we have no ability at all to retain an interest
in our records.
I am very much convinced this is an important debate--that the Bill
of Rights is something that we shouldn't look at lightly; that we
should, as we move forward, make sure we do protect the things that are
important. We shouldn't hurry up and have deadlines, and then say we
are not going to have time to debate it.
[[Page S3173]]
I see the Senator from Texas, who is also a defender of the Fourth
Amendment, is here, and I would be happy to take a question without
losing the floor.
Mr. CRUZ. I thank the Senator from Kentucky. I would note that he and
I agree on a great many issues, although we don't agree entirely on
this issue. But I want to take the opportunity to thank the Senator
from Kentucky for his passionate defense of liberties. His is a voice
this body needs to listen to.
I would note that the Senator from Kentucky's father spent decades in
the House of Representatives as a passionate advocate for liberty. Both
his father's voice and the Senator from Kentucky's voice have altered
the debate in this Chamber and have helped refocus the Congress and the
American people on the critical importance of defending our liberty.
I think protecting the Bill of Rights is a fundamental responsibility
of the Federal Government. And it is heartbreaking that over the last 6
years we have seen a Federal Government that not only fails to protect
the Bill of Rights but that routinely violates the constitutional
liberties of American citizens and routinely violates the Bill of
Rights.
I listened to the learned remarks and questions from the Senator from
Utah, where he noted that under the justifications for the current bulk
collection of metadata, it is the position of the Federal Government
that they have the full constitutional authority not only to collect
metadata but to collect the positional location of every American. If
any of us carry our cell phone, wherever we go, it is the position of
the Obama administration that the Federal Government has the full
constitutional authority to track the location of every American
citizen no matter where we are. That is a breathtaking assertion of
power.
I would note that we do not merely need to speculate that that is the
Obama administration's position. Indeed, in a recent case before the
U.S. Supreme Court, the Obama administration argues that law
enforcement could place a GPS locator on the automobile of any and
every law-abiding citizen in this country and track the location of
your automobile and my automobile with no probable cause, no
articulable suspicion, no nothing.
The Obama administration argued that the Fourth Amendment and the
Bill of Rights say nothing about the Federal Government placing a GPS
locator on the automobile of private law-abiding citizens.
Thankfully, the U.S. Supreme Court rejected that position. It did not
reject that position 5 to 4 or 6 to 3 or 7 to 2; the U.S. Supreme Court
rejected that radical antiprivacy position of the Obama administration
unanimously, 9 to 0.
I am entirely in agreement with my friend the Senator from Utah that
the right resolution of the issue before this body is for the U.S.
Senate to pass the USA FREEDOM Act. I am an original sponsor of that
bipartisan legislation.
The USA FREEDOM Act does two things: No. 1, it ends the Federal
Government's bulk collection of phone metadata for law-abiding
citizens. I am entirely in agreement with my friend, the Senator from
Kentucky, that the Federal Government should not be collecting the data
of millions of law-abiding citizens with no evidentiary basis to do so.
It is long past time to end this program, and the USA FREEDOM Act does
that.
At the same time, the USA FREEDOM Act maintains the tools to target
terrorists. We are living in a dangerous world with the rise of ISIS
and Al Shabaab and Boko Haram, not to mention Al Qaeda and radical
Islamic terrorism across the globe. The threat to the American homeland
has never been greater.
It is critical that law enforcement and national security maintain
the tools so that if there is a credible basis to believe that a
particular individual is planning a terrorist attack, we can intercept
their communications and we can prevent that terrorist attack before,
God forbid, they murder innocent Americans in the homeland. Those
critical words there are ``particular individual.''
What the Fourth Amendment envisions is not that law enforcement's
hands are tied; law enforcement has tools to stop crimes. But as my
friend the Senator from Kentucky has so powerfully observed, the Fourth
Amendment was designed to prevent general warrants. It was designed to
prevent the government from assuming that everyone in the country is
automatically guilty and we will seize your information. Rather, the
tools of law enforcement and national security should be particularized
based on the facts of the evidence.
That is why I support the USA FREEDOM Act because it accomplishes
both goals. It protects our privacy rights and the Bill of Rights of
law-abiding citizens, but it ensures we have the tools to prevent acts
of terrorists.
I would note two points that are important. There are a number of
Members of this body, including a number of Members of my party and the
party of this Senator from Kentucky, who argue that the PATRIOT Act
should be reauthorized with no changes, and they argue to do anything
else would jeopardize our national security.
There are two facts that are critical to assess to responding to that
argument. No. 1, the Members of this body have received confidential
classified briefings from the national security officers of this
administration. We are not at liberty to convey the specific details of
those briefings. But the Members of this body have been told, No. 1,
the USA FREEDOM Act would provide effective tools so that we can
prevent acts of terrorists.
Indeed, they have gone further to say that it is entirely possible
that under the USA FREEDOM Act, the national security team would have
more effective tools to stop actual terrorists than they do today under
the bulk metadata collection of law-abiding citizens. That is worth
underscoring. The national security professionals advising this body
have said the USA FREEDOM Act could well be more effective in providing
the tools to stop terrorists than the current status quo. That argument
needs to sit in for everyone arguing that we have to maintain the
status quo to stop terrorism. If it is the case, as we have been told,
that the USA FREEDOM Act could be more effective, that argument
suddenly falls to the ground.
Secondly, I address my friends in the Republican Party who have
preferred to reauthorize the PATRIOT Act. Even if that is their
preference, it is abundantly, abundantly clear that a clean
reauthorization to the PATRIOT Act ``ain't'' passing this body and it
certainly ``ain't'' passing the House of Representatives. I would note
that the USA FREEDOM Act passed the House of Representatives 338 to 88.
It was not a narrow victory. It was overwhelming. So even if Members of
this body would prefer to reauthorize the PATRIOT Act in its entirety,
the votes ``ain't'' there. So the choice they face is letting it expire
altogether, losing the tools we have to prevent real terrorists from
carrying out acts of terrorism or accepting a commonsense middle ground
that vigorously protects the Bill of Rights while maintaining the tools
to target the bad guys.
I will say this: With my friend the Senator from Kentucky, I entirely
agree that he is fully entitled to introduce his amendments to that
bill. This body should engage in a full and open debate considering
amendments, and the Senator from Kentucky should be able to propose
reasonable commonsense improvements to the USA FREEDOM Act.
We ought to debate them on the merits in a full and open process.
There was a time not too long ago when this body was called the world's
greatest deliberative body. Debate is what we are supposed to do on the
merits.
If the defenders of the PATRIOT Act right now are so confident of
their position, they should be prepared to debate the Senator from
Kentucky on the merits, to debate each of the Members of this body on
the merits, and to arrive at the right policy that both protects our
constitutional rights and ensures we have all the tools we need to
protect the safety of American citizens against acts of terrorism.
I will note standing here with the Senator from Kentucky and with the
Senator from Utah at 11:40 p.m., I am reminded of the movie ``The Blues
Brothers'' saying: Jake, we have got to get the band back together
again. I am reminded of previous evenings standing here with this same
band of brothers in the wee hours of the morning. I will make a couple
of final observations in
[[Page S3174]]
this question. The first is, the very first time I ever spoke on the
Senate floor, when I was a brand-new freshman Senator, was during the
last time the Senator from Kentucky was filibustering. Senator Rand
Paul was filibustering against the Obama administration's policy of
uncontrolled drone strikes and the refusal of the Obama administration
to acknowledge that the Constitution prohibits the Federal Government
from using a drone to target a U.S. citizen with lethal force if that
citizen does not pose an imminent threat on U.S. soil.
When the Senator from Kentucky began that filibuster that morning, he
had asked if I might come out and support him. I told him at the time,
as a newbie in this body, that I wanted to respect the institutions of
the Senate, which included the tradition that the freshman Senator
should stay quiet for a number of months before speaking. So initially
I said: No, I am not going to come down; it is not yet time for me to
speak on the Senate floor. Yet he stood there and 1 hour and 2 hours
passed. I could not stand back without joining him in the support in
that epic fight. That time I am reminded it was an anniversary of the
Battle of the Alamo. So I had the opportunity to read to my friend
William Barret Travis's letter from the Alamo and to give him the
encouragement of Texans who gave their lives in defense of liberty and,
indeed, at the time to read tweets that were sent in support of the
Senator from Kentucky. I said many times I will go to my grave in debt
to Senator Rand Paul for the first opportunity I had to speak on the
Senate floor which was his epic filibuster.
I would also note that following that filibuster, Senator Paul gave
me two pieces of advice, both of which proved very helpful for a
filibuster I was to do of my own several months later. Advice No. 1, he
said, was wear comfortable shoes. I would note that I observed the last
time Senator Paul did that, he did not follow this advice. He had not
planned to speak as long as he had. He told me his feet hurt for 2
weeks. I will confess, it was to my great shame that I am wearing today
my argument boots, which I wear every day on the Senate floor. But when
I filibustered on ObamaCare, I shamefully left my boots in the closet
and went and purchased black tennis shoes. As the hours wore on, I was
very grateful I had abided by Senator Paul's good advice and wore the
tennis shoes.
I would note, as I am sitting here today, that the good Senator is
wearing tennis shoes today. So I am glad to see he follows his own
advice, and I have no doubt that his calves and thighs will thank him
tonight and in the morning.
The second bit of advice Senator Paul gave me was to drink very, very
little water. That was advice he acknowledged likewise he had not
followed in his own filibuster. I will note that not too long ago I was
sitting in the President's chair presiding, and the entire hour I was
there, there was a glass of water on Senator Paul's desk, and he did
not drink a sip of it.
I will note that was advice I endeavored to follow. It was good
advice, and I am glad to see my friend is following it as well.
This is an exceptionally important issue that this body should be
focused on, the responsibility to protect the Bill of Rights and the
constitutional rights of every American.
The question I would ask my friend the Senator from Kentucky is, is
there any excuse for this body not taking seriously our obligation to
protect the Bill of Rights and the constitutional rights of privacy of
every American?
Mr. PAUL. I want to thank the Senator from Texas for joining in the
battle to defend the Bill of Rights and the Fourth Amendment. I know he
is sincere in that approach. There is absolutely no excuse, no excuse
not to debate this and no excuse not to vote on a sufficient amount of
amendments, to try to make this better, to try to make the bulk
collection of records go away. That is what the American people want.
It is what the Constitution demands. My voice is rapidly leaving. My
bedtime has long since passed. I think it is time we summarize why we
are here today and what my hope is for the future with this issue.
We have had a dozen Senators come down from both parties, from right,
left, conservative, liberal, progressive, and Libertarian. We have had
several friends come over from the House as well. There is a hunger in
America for somebody to stand up, for all of us to stand up, for
somebody to do the right thing, to say that the Bill of Rights needs to
be defended, that the Bill of Rights is important.
When I think of the Bill of Rights, I think it is not so much for the
popular person, it is not so much for the high school quarterback or
the prom queen; the Bill of Rights is for the least among us and the
Bill of Rights is to try to prevent any kind of systemic bias from
entering into the law for the way we treat people. People say: Well, we
collect all this data, but we are not abusing anyone. We are doing it
perfectly in order.
I agree with Senator Lee that just the collection of the data is the
infringement in itself. The whole idea that we could put one name on a
warrant and collect 100 million records goes against everything we
believe in. It goes against everything we fought for in the Revolution
when we fought to be left alone. I think Justice Brandeis put it best
when he said that the right to be left alone is the most cherished of
rights, the most prized among civilized men, to be left alone in our
castle, or in today's world, to be left alone in our cloud--the time
has long since passed where we are going to have paper records--and
that is going to be our exact home or exact castle that we are
protecting.
The time is now in the digital age that we need to protect our
privacy when we loan out our records, and it is different to loan out
your records and allow them to be held by a telephone company or by an
Internet provider or in the cloud. It doesn't mean you give up your
right to privacy. I think you have an expectation of privacy with or
without a contract, but often we have an explicit privacy agreement, an
explicit privacy contract that we actually have with the phone company
and Internet provider. They are supposed to protect our interests. It
sends exactly the wrong signal to give liability protection to these
companies and say to them that they can run roughshod with us and that
they can give their information out.
The bulk collection must end, and I think we have the votes to do it
now. We need to end the bulk collection of records, but that is not
where this battle ends. There is still a question as to whether the
Executive is gathering a great deal of information through Executive
order. I think that has to be reviewed, and it has to be reviewed in
public.
I agree with my friend Senator Wyden that the specifics of
intelligence--who the agents are, how we break code, how we
technologically gather information--by all means does not need to be
discussed in public, but whether we should collect all Americans' phone
records all the time should be discussed in public. It should have been
revealed in an honest way.
The fact that the Director of our National Intelligence lied to us
and said the program didn't even exist I think is unforgivable and
makes him unsuitable to lead our intelligence agency. We have to have
trust. Because of this great and enormous power we allow our
intelligence agencies to have, we have to have trust, and you cannot
have trust when Congress is lied to.
I think, as we move forward today, we have made great strides in
presenting arguments in the debate for how we would make things better,
how we would better circumscribe this great and ominous power, and how
we would better make this power conducive to the Constitution.
The ultimate success will be that we can actually change things, but
part of the success will be that we have debated them today, and my
hope is that the debate today will let the American public, as well as
our leadership in the Senate, know that we are serious about this and
that we want to vote on reforms and that we want to vote on several
different ways we can fix this issue. If this issue comes up every 3
years, for goodness' sake, can't we spend a couple of days trying to
amend this and make it better?
I thank the Senate staff for coming in and staying. I don't think
they had much choice in the matter, but I thank them for staying and
not throwing things. We will try not to do this but every couple of
years or so.
[[Page S3175]]
I thank my staff for their help in a long day, and I thank the
American people for considering the arguments and for helping us to
hopefully push this toward the reform where we all respect the Fourth
Amendment and the Bill of Rights once again.
I thank the Presiding Officer, and I relinquish the floor.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The senior assistant legislative clerk proceeded to call the roll.
Mr. CASSIDY. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
____________________
