[Congressional Record Volume 161, Number 86 (Monday, June 1, 2015)]
[Senate]
[Page S3373]
USA FREEDOM ACT
Mr. McCONNELL. Mr. President, last night the Senate voted to advance
the House-passed FISA bill. We will have a vote on that legislation as
soon as we can. On our way there, we should take some commonsense steps
to ensure the new system envisioned by that legislation--a system we
would soon have to rely upon to keep our country safe--will, in fact,
actually work. The amendments filed last night would help do just that.
For example, one amendment would ensure that there is adequate time
to build and test a system that doesn't yet exist. One amendment would
ensure that there is adequate time to build and test a system that
doesn't even exist yet. Another would require that once the new system
is actually built, the Director of National Intelligence reviews it and
certifies that it actually works. I will say that again. The second
amendment would require that once the new system is actually built, the
Director of National Intelligence reviews the new system and certifies
that it will actually work. Amendment No. 3 would require simple
notification if the providers decide to change their data-retention
policies. It will just require them to notify us if the providers
decide to change their data-retention policies. Three amendments to
improve the bill.
These fixes are common sense, and whatever one thinks of the proposed
new system, there needs to be basic assurance that it will function as
its proponents say it will. The Senate should adopt these basic
safeguards.
I had hoped to see committees working hard to advance bipartisan,
compromise FISA legislation this week, which is why I had offered
several temporary extensions of the existing program to allow the space
for that to occur. But these proposed short-term extensions were either
voted down or objected to, including a very narrow extension of some of
the least controversial tools contained within the program that we are
considering.
So this is where we are. It now falls on all of us to work diligently
and responsibly to get the American people the best outcome that can be
reasonably expected in this reality with which we are confronted. That
is my commitment, and I know many of my colleagues share it as well.
Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mr. BURR. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER (Mr. Gardner). Without objection, it is so
ordered.
____________________
[Congressional Record Volume 161, Number 86 (Monday, June 1, 2015)]
[Senate]
[Page S3374]
NATIONAL SECURITY LEGISLATION
Mr. NELSON. Mr. President, we are here because the Senate is not
functioning. We were here last night because the Senate is not
functioning. Oh, it is functioning according to the rules, which say
that you have to go through this arcane procedure of cloture on the
motion to proceed and get 60 votes before you can ever get to the bill.
Once you get to the bill, then you file another motion for cloture. The
Senate rules say that there are 30 hours that have to run unless, as
has been typical of Senate business, there is comity, there is
understanding, and there is bipartisanship. But one Senator can
withhold unanimous consent, and that has been done--so the 30 hours.
Now, normally that may be standard procedure for the Senate, but it
is getting in the way of our national security. At midnight last night
the law that allows our intelligence community to track the emails and
the phone calls of the terrorists evaporated. It won't be reenacted
until sometime later this week because of the lack of unanimous
consent.
But this Senator from Florida is not putting it at the feet of just
the one Senator who is withholding the unanimous consent. This Senator
from Florida is saying that this should have been planned on over a
week ago. This Senator is saying that we should have gone through the
laborious procedures--not assuming that we were going to have the votes
last night, not assuming that there was going to have comity and
unanimous consent. This Senator thinks that we should have done this
because of the urgency of national security.
It is interesting that this Senator from Florida comes to the floor
with mixed feelings. I voted for the Leahy bill, which is identical to
the House bill, but I did that because we didn't have any other choice.
When I had another choice, I voted for Senator Burr's--the chairman of
the Senate Intelligence Committee--version, which was to continue
existing law. I did so because I clearly thought that was in the
interests of our national security.
But since that is not the prevailing vote of the Senate, we need to
get on with it and pass the House bill. Then I would urge the chairman
of the Intelligence Committee, who is on the floor, that--down the
line--the 6-month transitional period from the old law to the new law
be extended with a greater transition time to 12 or 18 months. I would
further urge the chairman of the Intelligence Committee that as to a
major flaw in the bill passed by the House, which we will eventually
pass this week, we add to it a requirement for a certain amount of time
that the telephone companies would have to keep those telephone
business records, so that if there is an urgency of national security
going through the FISA Court, those records would be available to the
intelligence community to trace the telephone calls of the terrorists.
That would be my recommendation, and I see the chairman nodding in
somewhat agreement.
I hope we will get on. I hope better hearts and minds will prevail
and that we can collapse this period of darkness where there is no law
governing emails, phone calls, cell phones, et cetera, as we try to
protect ourselves from the terrorists.
I would hope that this would be collapsed into a much shorter time
instead of having to wait until late Tuesday or Wednesday or Thursday
of this week.
I yield the floor.
The PRESIDING OFFICER. The Senator from North Carolina.
____________________
[Congressional Record Volume 161, Number 86 (Monday, June 1, 2015)]
[Senate]
[Pages S3374-S3381]
USA FREEDOM ACT OF 2015
The PRESIDING OFFICER. Under the previous order, the Senate will
resume consideration of H.R. 2048, which the clerk will report.
The senior assistant legislative clerk read as follows:
A bill (H.R. 2048) to reform the authorities of the Federal
Government to require the production of certain business
records, conduct electronic surveillance, use pen registers
and trap and trace devices, and use other forms of
information gathering for foreign intelligence,
counterterrorism, and criminal purposes, and for other
purposes.
Pending:
McConnell/Burr amendment No. 1449, in the nature of a
substitute.
McConnell amendment No. 1450 (to amendment No. 1449), of a
perfecting nature.
McConnell amendment No. 1451 (to amendment No. 1450),
relating to appointment of amicus curiae.
McConnell/Burr amendment No. 1452 (to the language proposed
to be stricken by amendment No. 1449), of a perfecting
nature.
McConnell amendment No. 1453 (to amendment No. 1452), to
change the enactment date.
The PRESIDING OFFICER. The Senator from North Carolina.
Mr. BURR. Mr. President, I rise while my good friend from Florida is
on the floor to say that I wish I could have a magic wand with which I
could collapse this time. But as he knows, under Senate rules, one
Member can demand for the full 30 hours, and we are in a process like
that. My hope is that there will be accommodation as we go through this
because I think most Members would like to resolve this.
Let me say specifically to his two points that there is a substitute
amendment that has the USA FREEDOM language with two additional pieces.
Those two pieces are a 6-month notification to NSA by any telecom
company that intends to change its retention program. As my good friend
from Florida knows, in part, trying to move a bill is making sure we
move a bill that can be passed and accepted by the House of
Representatives. Mandatory retention right now does not meet that
threshold. But I hope they will accept this requirement of notification
of any change in their retention program, as well as a DNI
certification at the end of whatever the transition period is.
Now, there will be a first-degree and a second-degree amendment, in
addition to that, made in order and germane. The first-degree amendment
will be to extend the transition period to 12 months. So we would go
from 6 months--not to 2 years, as my colleague from Florida and I would
prefer, and not to 18 but to 12. I think that is a happy spot for us to
agree upon.
Then there will be a second-degree amendment to that to address some
language that is in the bill that makes it mandatory on the part of the
Justice Department that they get a panel of amicus individuals. What we
have heard from the Justice Department and gotten a recommendation on
is that that be voluntary on the part of the courts. We will second-
degree that first-degree amendment with that language provided to us by
the courts.
I would like to tell my colleague that by tomorrow afternoon, I hope,
we can have this complete and send it to the House, and by the time we
go to bed tomorrow night this might all be back in place.
I remind my colleagues that any law enforcement case that was in
progress is not affected by the suspension of the roving or ``lone-
wolf'' provisions. They are grandfathered in so those investigations
can continue. But for the 48 hours we might be closed, it means they
are going to delay the start of an investigation, if in fact they need
those two tools.
From the standpoint of the bulk data program, it means that is
frozen. It can't be queried for the period of time, but it hasn't gone
away. Immediately, as we reinstitute the authorities in this program,
that additional data will be brought in and the process that NSA would
go through to query the data
[[Page S3375]]
would, in fact, be available to the National Security Agency only--as
is current law--once a FISA Court provides the authority for them to do
it.
I think there are a lot of misstatements that have been made on this
floor. Let me just state for my colleagues what is collected. What is
metadata? It is a telephone number, it is a date, it is the time the
call was made, and it is the duration of the phone call.
Now, I am not sure how we have invaded anybody's privacy by getting a
telephone number that is deidentified. We don't know who it belongs to,
and we would never know who it belongs to until it is turned over to
law enforcement to investigate because it has now been connected to a
known foreign terrorist's telephone number.
Stop and think about this. The CFPB--a government agency--collects
financial transactions on every American. There is nobody down here
trying to eliminate the CFPB. I would love to eliminate the CFPB
tomorrow. But there is no outrage over it, and they collect a ton more
information that is not deidentified. It is identified.
Every American has a discount card for their grocery store. You go in
and you get a discount every time you use it. Your grocery store
collects 20 times the amount of data the NSA does--all identified with
you. There is a big difference between the NSA and your grocery store:
We don't sell your data at the NSA; your grocery store does.
Now, I am for outrage, but let's make it equal. Let's understand we
are in a society where data is transferred automatically. The fact is,
No. 1, this is a program authorized by law, overseen by the Congress--
House and Senate--and the executive branch at the White House. It is a
program that has never had--never, never had--a privacy violation, not
one, in the time it has been in place.
Now, I am all for, if the American people say this is not a function
we believe government should be in--and I think that is what we have
heard--and we are transferring this data over to the telecom companies,
where no longer are there going to be a limited number of people who
can access that information. We are going to open it up to the telecom
companies to search it in some way, shape or form. Whether they are
trained or untrained or how exactly they are going to do it, it is
going to delay the amount of time it will take us to connect a dot to
another dot.
Mr. NELSON. Will the Senator yield for a question?
Mr. BURR. I will be happy to yield.
Mr. NELSON. Mr. President, this is a good example of the chairman of
the intel committee, a Republican, and this Senator from Florida, a
Democrat and a former member of the intel committee, agreeing and being
so frustrated--as was just exemplified by the Senator from North
Carolina--that there is so much misunderstanding of what this
legislation does.
The fact is, as the chairman has just said, ``metadata''--a fancy
term--is nothing more than business records of the telephone company. A
telephone number is made to another telephone number on such and such a
date, at such and such a time, for such and such duration. That is all.
We don't know whom the call was from or to. It is when there is the
suspicion, through other things that are authorized by court order,
that the analyst can get in and open up as to what the content is in
order to protect us.
Would the Senator from North Carolina agree there is so much
misunderstanding in the press, as has been reported, about how this is
an invasion of privacy, as if the conversations were the ones that were
being held by the National Security Agency? Would the Senator agree
with that statement?
Mr. BURR. I would agree exactly with that statement. The collection
has nothing to do with the content of a call. To do that would take an
investigation into an individual and an additional court process that
would probably be pursued by the FBI, not the NSA, to look at the
content.
I think when the American people see this thing dissected, in
reality, they will see that my telephone number without my name isn't
really an intrusion, the time the call was made really isn't an
intrusion, the duration of the call really isn't an intrusion, and now
I know they are not collecting anything that was said, that there is no
content in it and that this metadata base is only telephone numbers.
There is a legitimate question the American people ask: Why did we
create this program? Well, it was created in the Department of Defense.
It was transferred over to the intelligence community. The purpose of
it was in real time to be able to search or query a massive amount of
data.
A few weeks ago, we, the United States, went into Syria and we got a
bad guy. And we got hard drives and we got telephones and we got a lot
of SIM cards. Those telephone numbers now, hopefully--don't know but
hopefully--we are testing them in the metadata base to see if those
phones talked to anybody in the United States. Why? I think the
American people want us to know if terrorists are talking to somebody
in this country. I think they really do want us to know that.
What we have tried to do since 9/11 is to structure something that
lives within the law or a Presidential directive that gives us that
head start in identifying who that individual is. But we only do it
through telephone numbers, the date of the call, and the length of the
call. We don't do it through listening to content.
That is why I think it is healthy for us to have this debate. I think
my good friend from Florida shares my frustration. We are changing a
program that didn't have a problem and didn't need to be changed, and
we are accepting a lower threshold of our ability to intercept that
individual in the United States who might have the intention of
carrying out some type of an attack.
Now, I would only say this. I don't believe the threat level has
dropped to a point where we can remove some of the tools. If anything,
the threat level has gotten higher, and one would think we would be
talking about an expansion of tools. But I accept the fact that this
debate has gotten to a point where a bulk data storage capacity within
the government is not going to be continued long term.
I would say to my good friend, who I think agrees with me, that
although I believe 24 months is a safer transition period, hopefully
our friends in the House will see 12 months as a good agreement between
the two bodies. That 12-month agreement I think would give me
confidence knowing we have taken care of the technology needed for the
telecoms to search in real time their numbers.
Now, make no mistake, this will be a delay from where we currently
are. I can't get into the classified nature of how long it takes us to
query a database, given the way we do it, but there is no question this
will lengthen the amount of time it takes us to connect the dots.
Therefore, for something that might be in an operational mode, we may
or may not hit that. That is a concern. But this is certainly something
we can go back and look at as time goes on.
Mr. NELSON. Mr. President, if the Senator will further yield.
Mr. BURR. Absolutely.
Mr. NELSON. Has the Senator heard many times from the press: Well,
nobody has come forward and shown us one case in which the holding of
these telephone business bulk records has paid off. Has the Senator
heard that statement by the press?
Mr. BURR. The Senator has heard that statement by the press and has
heard it made by Members of this body.
Mr. NELSON. Has the Senator come to the conclusion that with regard
to the holding of that data and the many cases that are classified,
that that data has protected this country from terrorists by virtue of
just the example he gave of terrorist records apprehended in the raid
in Syria a couple of weeks ago and that those telephone numbers may
well be like mining gold in finding other terrorists who want to hit
us?
Mr. BURR. The Senator hits on a great point, and let me state it this
way. Would any Member of the Intelligence Committee be on the floor
battling to keep this program, if, in fact, in our oversight capacity,
we had looked at a program that was absolutely worthless? Would we
expend any capital to do that? The answer is, no, we wouldn't.
We are down here battling on the floor, those of us either on the
committee or who have been on the committee since 9/11, because we have
seen the impact of this program. We know what it has enabled us to do
and we
[[Page S3376]]
know what happens when we get a trove of technology in our hands that
gives us the ability to see whether it was tied to somebody--whether we
knew about them or we didn't.
The fact is, when you have groups such as ISIL today, that are saying
on social media: Don't come to Syria, stay in the United States, stay
in Europe, go buy a gun, here are 100 law enforcement officers, here
are 100 military folks, that is how you can carry out the jihad, it
makes the use of the tool we are talking about even more important
because no longer do we get to look at no-fly lists, no longer do we
get to look at individuals who have traveled or who intend to travel to
Syria. It is individuals who grew up in neighborhoods that we never
worried about. And the only way we will be able to find out about them
is if we connect the conversation they have had or just the fact that a
conversation took place, and then law enforcement can begin to peel the
onion back with the proper authorities--the proper court order--to
begin to look at whether this is a person we need to worry about.
The Senator from Florida is 100 percent correct that this is
invaluable to the overall defense of this country.
Mr. NELSON. Mr. President, if the Senator will further yield, and I
will conclude with this.
The American people need to understand there is so much agreement
behind the closed doors on the Intelligence Committee, as they are
invested with the oversight of what is going on in order to protect our
blessed country. My plea now is we would get to the point that as the
chairman has suggested, even by waiting until tomorrow, we can collapse
this time and get on to passing this by sending down some minor
modifications to the House that they can accept, then get it to the
President so this important program that tries to protect us from
terrorists can continue.
I thank the Senator for yielding.
Mr. BURR. I thank my good friend from Florida for his willingness to
come to the floor and talk facts.
I see my good friend from Arizona here. Before I yield, let me just
restate what the Senator from Florida asked me, which was, geez, we
need a longer transition period and we need something addressed on the
data that is held.
I say for my colleagues that there will be three votes at some point.
One will be on a substitute amendment. It has the exact same language
as the USA FREEDOM bill. It makes two changes to the USA FREEDOM bill.
It has a requirement that the telecoms notify the government 6 months
in advance of any change in the retention program for their data, which
I think is very reasonable. The second would be that it requires the
Director of National Intelligence to certify, on whatever the
transition date is, that the software that needs to be provided to the
telecoms has been provided so that search can go through.
In addition to that, there will be two other amendments. The first
will deal with expanding the transition period from the current 6
months in the USA FREEDOM bill to 12 months. Again, I would have
preferred 24 months. We have settled on 12 months. The last thing is
that it would change the current amicus language in the bill to reflect
something provided to us by the courts. It was the court's
recommendation that we change it. This would be easier to fit within a
program that has a time sensitivity to it.
So as we go through the debate today, as we go through tomorrow,
hopefully we will have three amendments that pass, and we can report
this bill out shortly after lunch tomorrow if everything works well.
With that, I yield the floor.
The PRESIDING OFFICER. The Senator from Arizona.
Mr. McCAIN. Mr. President, I ask unanimous consent to address the
Senate as in morning business.
The PRESIDING OFFICER. Without objection, it is so ordered.
[...]
The PRESIDING OFFICER (Mr. Cotton). The Senator from Maine.
Mr. KING. Mr. President, I rise to address the bill before us, the
USA FREEDOM Act, and its predecessor, the PATRIOT Act. Before talking
about the specifics of those bills, I will try to address the
historical context of what it is we are wrestling with and why it is so
hard.
What we are really trying to do in this body this week is to balance
two critical constitutional provisions. The first is in the preamble,
which is to provide for the common defense and ensure domestic
tranquility. That is a fundamental purpose of this government. It is a
fundamental purpose of any government--to provide for the common
defense and ensure domestic tranquility. That is national security, and
it is in the very core preamble to the Constitution of the United
States.
Of course, the other provisions are found in the Bill of Rights,
particularly in the Fourth Amendment, which talks about the rights of
the people to be secure in their persons and papers from unreasonable
searches and seizures. ``Unreasonable'' is a key word. The people who
drafted our Constitution were geniuses and every word counts. The word
was ``unreasonable.'' So there is no absolute right to privacy, just as
there is no absolute right to national security. We have to try to find
the right balance, and that is what we have to do year in and year out,
decade in and decade out, in relation to developments in technology and
developments in terms of the threats which we face. It is a calibration
that we have to continue to try to make.
Now, I have been concerned, as a member of the Intelligence
Committee, about the retention of large quantities of telephone data by
the government. I think the program under which that data has been
analyzed is important, and I will talk about that in a few minutes. I
share the concern of many in this body who feel that simply having and
retaining all of that information in government computers, even though
it was hedged about with various protections and even though there were
requirements for how it was to be accessed--and the level of attention
to the detail of that access was important--and there is no evidence
that it had ever been abused, was a danger to the liberty of our
country. I feel the same as many of the Members of this body who have
expressed that concern. Therefore, the USA FREEDOM Act, which we have
before us now, proposes to move to leave the data with the phone
companies. Instead of the government collecting and having it in the
government's hands, the data will be in the phone companies. If it is
necessary to access that information for national security purposes,
the government will have to go through the process of going through the
Justice Department and the court in order to get permission to access
that data.
Why shouldn't the government simply hold it? I am a subscriber to
Lord Acton's famous maxim that ``power tends to corrupt, and absolute
power corrupts absolutely.''
While the current administration or the prior administration may have
no inclination to misuse that data, we have no idea what may come in
the future, what pressures there may be, what political pressures there
may be. Therefore, it struck me as sensible to get it out of
government's hands.
The trouble I have had with the USA FREEDOM Act is that I felt it
went too far in the other direction because there was no requirement in
the bill, as it passed the House, that the phone companies retain and
hold the data for any particular period of time. They now hold it, as a
matter of business practice, for 18 months to 2 years, which is all
that is necessary in order to have the data available for a national
security search if necessary. The problem is that there is no
requirement that they maintain that level of retention.
In fact, in an open hearing, one of the vice presidents of one of the
carriers said categorically: We will not accept a limitation on how
long we have to hold the data. I think that is a glaring weakness in
the USA FREEDOM Act, and, in fact, it led me to vote against the
consideration of the motion to proceed when it came up last week.
Today or tomorrow--whenever the timing works out--there will be a
series of amendments proposed by the Senator from North Carolina, the
chair of the Intelligence Committee, designed to deal with several of
these technical but very important aspects of this program. One of
those amendments would require the carriers--if they decide to hold the
data for a shorter period of time--to notify the government, notify the
Congress, and we could then make a decision as to whether we thought
that some additional required period of retention would be necessary in
order to adequately protect our national security. Another amendment
that I understand is going to be proposed is that the transition period
from the current program to the private carriers holding the data will
be extended from 6 months to 1 year, simply because this is a major,
Herculean technical task to develop the software to be sure that this
information will be available for national security purposes on a
timely basis.
Now, the final question, and the one we have been debating and
discussing here is this: Is it an important program? Is it worth
maintaining? There has been a lot of argument that if you can't point
to a specific plot that was specifically foiled by this narrow
provision, then we don't need it at all. I don't buy that. It is part
of our national security toolkit.
It is interesting to talk about the history of this provision. It
came into being shortly after September 11, because a gap in our
security analysis ability was identified at that time, and that was
that we could not track phone connections--not content, and I will talk
about that in a minute--between the people who were preparing for the
September 11 attack. For that reason, the section 215 program was
invented.
I want to stop for just a moment and make clear to the American
people that this program does not collect or listen to or otherwise
have anything to do with the content of phone calls.
As I talked to people in Maine and they approached me about this,
they said: We don't want the government listening to all of our phone
calls. The answer is: They don't. This program does not convey and has
not conveyed any such authority. We are talking about a much more
narrow ability to determine whether a particular phone number called
another phone number, the duration and date of that phone call, and
that is it.
An example of its usefulness was at the Boston Marathon bombing. The
two brothers perpetrated that horrendous attack in Boston in April of
2013. This program allowed the authorities to check their phone numbers
to see if they were in touch with other people in the country so they
could determine
[[Page S3380]]
whether this was a nationwide plot or whether it was simply these two
guys in Boston. That, I will submit, is an important and--some would
say--critical piece of information. It turned out that they were acting
on their own, but had there been connections with other similarly
inclined people in the country at that time, that would have been
important information for us to know, and that is the way this program
is used.
Is it absolutely critical and indispensable in solving these cases? I
don't think anybody can argue that that is the case. Is it important
and useful as a part of the national security toolkit? Yes,
particularly when the invasion of privacy, if you will, is so limited
and really so narrowly defined. I liken it to a notebook that a police
officer carries at the scene of a crime. A detective goes to the scene
of a crime, takes out his notebook, and writes some notes. If we said
that detectives can no longer carry notebooks, would it eliminate law
enforcement's ability to solve crimes? No, but would it limit a tool
that was helpful to them in solving that crime or another crime? The
answer, I think, would be yes.
We should not take a tool away that is useful and important unless
there is some compelling argument on the other side. Since we are not
talking about the content of the phone conversations--we are simply
talking about which number called which other number, and it can only
be accessed through a process that involves the Justice Department and
then permission from the court--I think it is a program that is worthy
of protection and useful to this country, and I think it is
particularly important now.
It is ironic that we are talking about, in effect, unilaterally
disarming to this extent at a time when the threat to this country has
never been greater and the nature of the threat is changing. September
11 is what I would call terrorism 1.0, a plot that was hatched abroad.
The people who perpetrated it were smuggled into the country in various
ways. They had a specific target and a specific plot that they were
working on. That is terrorism 1.0, September 11. Terrorism 2.0 is a
plot that is hatched abroad but communicated directly to people in the
United States who are part of the jihadist group. But now we are on to
terrorism 3.0, which is ISIS sending out what amounts to a terrorist
APB to no particular person but to anyone in this country who has been
radicalized by themselves or by the Internet. There is no direct
connection between them and ISIS. It might be a Facebook post. That
person then takes up arms and tries to kill Americans, and that is what
their intent is. That is the hardest situation for us to counteract,
and that is a situation where this ability to track numbers calling
numbers can be extremely useful. In fact, it might be the only useful
tool because we are not going to have the kind of specific plotting
that we have seen in the past.
This is the most dangerous threat that I think we face today. To
throw aside a protection or a safeguard that I believe passes
constitutional and legal muster and goes the extra mile to protect the
privacy rights of Americans by getting this data out of the hands of
the government and that is worthy of the support and the active work in
this Chamber to find that balance--the balance between the imperative,
the most solemn responsibility we have in this body, which is to
provide for the common defense and ensure domestic tranquility, and to
protect the safety and security of the people of this country in light
of the constitutional limitations in the Bill of Rights that protect
our individual liberties that make us who we are--we can do both
things. There is never going to be a final answer to this question. But
what we have to do is just what we are doing this week, and that is to
assess the threats, assess the technology developments, and try to find
the right calibration and the right balance that will allow us to meet
that most solemn of our responsibilities.
I look forward, hopefully, to the consideration of amendments later
either today or tomorrow and look forward to what I hope will be a
quick passage of this legislation in the next 24 to 48 hours so we can
look our constituents and the people of this country in the eyes and
say: We took the responsibility to protect your security seriously, and
we also took seriously your rights, your liberty, and your
understanding that the government is not going to impinge unreasonably
in any way in violation of the principles of this Constitution.
I yield the floor.
The PRESIDING OFFICER. The Senator from North Carolina.
Mr. BURR. Mr. President, I thank my good friend, the Senator from
Maine, a committed member of the Committee on Intelligence, and one who
has been vitally involved in the oversight of section 215.
I think what has been left out of the debate is that 15 Members of
the U.S. Senate have actively carried out oversight. This is probably
one of the most looked at programs that exists within the jurisdiction
of the Intelligence Committee. There are a couple more that probably
get more constant attention, but this is not a program that is used
that frequently. I think that is the key point.
I wish to reiterate some of the issues Senator King brought up. We
are not listening to people's phone calls. There is no content
collected.
This program expired last night at midnight. That means the database
cannot be queried, regardless of if we find a terrorist telephone
number. I think it is important to remind my colleagues and the
American people that this is all triggered by a nonterrorist number
outside of the United States.
Now, in the case of the Tsarnaev brothers, we had the telephone
number outside the country, and we wanted to see whether the connection
had been made, so there was direction in that case. But this is
triggered by not just going through the database and looking at who
Americans are calling and trying to figure something out, it is
triggered by a known foreign terrorist's telephone number, and we
searched to see whom they may have contacted in the United States.
Now, the FISA Court only allows this data to be queried when there is
a reasonable articulable suspicion--or RAS, as we call it--based on
specific facts; that the basis for the query is associated with a
foreign terrorist or terrorist organization. If the NSA can't make that
case to the courts, that RAS is never authorized to go forward. The NSA
is not searching through records to see whom ordinary Americans are
calling; they are only looking for the terrorist links based upon the
connection to a phone number known to be a terrorist phone number.
Now, my good friend, the Senator from Maine, spoke about the Boston
bombings. Let me go back to some comments the Director of the FBI,
Director Mueller, made earlier last year. He testified in the House
that had the program been in place before September 11, 2001, those
attacks might have been derailed. Why? Well, according to the Director
of the FBI, before 9/11, the intelligence community lost track of al-
Mihdhar. Al-Mihdhar was one of the two who lived in San Diego, and he
was tied to a terrorist group in Yemen. We lost track of al-Mihdhar,
but we knew the terrorist organization in Yemen. So if we would have
had this program in place, we could have targeted the telephone numbers
out of the cell in Yemen to see if they were contacting anybody in the
United States--and they were contacting al-Mihdhar--and we could have
put the connection together and found al-Mihdhar after we lost him in
flight to the United States.
I think Director Mueller said we saw on 9/11 what happens when the
right information is not put together. If this program had been in
place, then it could have provided the necessary link between the safe
house in Yemen and al-Mihdhar in San Diego.
For those who claim this program served no purpose prior to 9/11,
here is the Director of the FBI saying it would have. Then we have the
Boston Marathon bombing, and the program told us there was no terrorist
link.
Then we come to the 2009 New York City subway bombing plot. In early
September 2009, while monitoring the activities of an Al Qaeda
terrorist group in Pakistan, NSA noted contact from an individual in
the United States who the FBI subsequently identified as Colorado-based
Najibullah Zazi. Section 215 provided important lead information that
helped thwart this plot.
I wish to say this one more time to my colleagues: This program
works. It has worked. It has stopped attacks because we have been able
to identify an
[[Page S3381]]
individual before they carried out the attack.
Now, the threshold for my colleagues who say this program has not
served any useful purpose, meaning we have to have an attack to be able
to prove we thwarted an attack--that is not why we have this program in
place. We are trying to get ahead of the terrorist act. In the case of
the subway bombings in New York, we did that in 2009.
There was a Chicago terrorist investigation in 2009. David Coleman
Headley, a Chicago businessman and dual U.S. and Pakistan citizen, was
arrested by the FBI as he tried to depart Chicago O'Hare Airport to go
to Europe. At the time of his arrest, Headley and his colleagues, at
the behest of Al Qaeda, were plotting to attack the Danish newspaper
that published the unflattering cartoons of Prophet Mohammed. Section
215 metadata analysis was used along with other FBI authorities to
investigate Headley's overseas associates and their involvement in
Headley's activities.
I am not sure how it gets any clearer than this. We have an
individual who is radicalized, who intends to carry out an act, who has
overseas connections that we never would have understood without
section 215. I think that as my good friend from Maine knows, when we
connect one dot, typically it leads to another dot and that leads to
another dot. To say to law enforcement, to say to our intelligence
community that we are not going to give you the tools to connect these
dots is to basically stand up in front of the American people and say
that we are supposed to keep you safe, but we are not going to do that.
So I thank my good friend, the Senator from Maine, for his support.
I say to my colleagues, I hope we are going to be able to reinstitute
this program shortly after lunch tomorrow. Hopefully, we will be able
to do it with three amendment votes and a final passage vote. One will
be a substitute to the full bill. It has all the USA FREEDOM Act
language, with two changes. It would require the telecom companies to
provide 6 months' notification of any change in the retention program
of their company. That language was the suggestion of the Senator from
Maine, and it works extremely well.
The second piece of the substitute amendment will deal with the
certification of the Director of National Intelligence that we have
made the technological changes necessary for the telecom companies to
actually query that data they are holding.
There will be two additional amendments. The first one will be to
change the transition period from 6 months to 12 months, and I think
the Senator from Maine would agree with me that--I would like to see it
longer--anything longer than 6 months is beneficial as we talk about
the safety and security of the American people.
The last amendment is the change in the amicus language or the friend
of the court language. I will get into that in a little while. The
current bill says the courts shall--``shall'' means they will do it.
The administrator of the court has provided us with language that they
think will allow the court the flexibility, when they need a friend of
the court, to solicit a friend of the court in FISA Court but not
require them, with the word ``shall,'' to always have a friend of the
court.
Again, I think, as my good friend from Maine knows, the process we go
through in section 215 through the FISA Court in many cases is an
accelerated process. Any delay can defeat the purpose of what we are
doing; that is, trying to be in front of an attack versus in the back
of an attack. I say one last time for my colleagues, NSA, under the
metadata program, collects a few things: They collect the telephone
number, they collect a date, they collect the duration of time that the
call took place. They don't get content. They don't get the person's
name. They have no idea whose number it is. Were they to tie a domestic
number to a foreign terrorist number, that then goes directly to the
FBI because they say to the Bureau: We have a suspicious American
because they have communicated with a terrorist, at which time it is
out of the 215 program for the purposes of investigation of the
individual. If there was ever a need to find out whose telephone number
it was or if there was a need to see content, that would be sought by
the FBI under an investigation through the normal court processes that
are not part of the 215 program. Section 215 is limited to a telephone
number, with no identifier for whose number it is, the collection of
the date, and the duration of the call.
I think the Senator from Maine would agree with me. I would just as
soon see the program stay at NSA, but that decision is a fait accompli.
It is going to transition out. We would just like to make sure we have
enough time so this can seamlessly happen versus an artificial date of
6 months and not knowing whether it can happen.
I thank the Senator from Maine.
Mr. President, I yield the floor.
____________________
[Congressional Record Volume 161, Number 86 (Monday, June 1, 2015)]
[Senate]
[Pages S3385-S3399]
USA FREEDOM ACT OF 2015--Continued
The PRESIDING OFFICER. The majority whip.
Mr. CORNYN. Mr. President, I would ask the Senate's indulgence. I
actually have three topics that I need to discuss here today. One topic
involves the historic flooding that we have experienced in Texas and
the consequences of that, also the President's signing the Justice for
Victims of Trafficking Act, and lastly, the bill that is before us on
the floor today, which is another tool in the toolbox of the national
security apparatus in this country to help keep Americans safe.
[...]
Mr. President, I want to speak about the effort to reauthorize the
critical provisions of the PATRIOT Act that expired at midnight last
night.
As others have observed, there has been a lot of misleading rhetoric
and downright demagoguery about this topic. The issue is pretty
straightforward and simple. This is about how we use all of the tools
available to us to keep our Nation safe amidst pervasive and growing
threats, while at the same time preserving our essential liberties.
This is not about trading one for the other. This is about how we
achieve the correct balance.
Despite our efforts last night, this Chamber was unable to come up
with even a short-term solution to ensure that the key provisions--
including section 215--of the PATRIOT Act did not expire. We know that
any single Senator could object to this extension that would allow us
to continue our work without allowing this program to expire.
Unfortunately, three of our colleagues chose to object to the
commonsense unanimous consent request to allow those temporary
extensions while the Senate and the House continued their work.
It is important to remember that these provisions of the law were
created after September 11 and were designed to equip those
investigating terrorism with the basic tools used by ordinary law
enforcement. Why in the world would we want to deny law enforcement the
investigatory tools they need to keep America safe from terrorist
attacks? That is what section 215 did and does and will do again once
we resurrect it.
Before it expired at midnight, these provisions helped our
intelligence and law enforcement officials keep the country safe. As I
think about this, and in discussing it with Chairman Burr and others
who are very concerned about the safety and security of our country and
who are determined to protect the country by making sure that our
counterterrorism efforts maintain every available legal tool consistent
with our civil liberties, I think what has happened is we have fallen
victim again to the pre-9/11 mentality of considering counterterrorism
efforts to be a law enforcement matter alone. Of course, the Fourth
Amendment to the Constitution, which prohibits unreasonable searches
and seizures, was designed primarily in a criminal law enforcement
context to make sure that American citizens' privacy was protected. But
what many of those who object to using these provisions fail to
acknowledge is that our intelligence community has to be able to
investigate and detect threats to the American homeland before they
occur.
After 9/11, where almost 3,000 people lost their lives, there was
plenty of time to do a criminal investigation and law enforcement
action, but we had failed in our most essential obligation, which is to
detect these threats ahead of time and to prevent them from ever
occurring.
Importantly, as we discussed the week before last, section 215 in
particular included vigorous oversight measures. It is important for
people to understand that the executive branch--in other words, the
White House--and the legislative branch, which is both Houses of
Congress, and the courts are all very much engaged in the vigorous
oversight of these tools used to protect the American people. By taking
this tool away from those investigating the constant threat stream to
American citizens, we have unfortunately given terrorists an advantage
right here in our own backyard.
As we have reiterated over and over that these threats to our
homeland are real and they are growing. Why in the world would we take
time to gamble with our national security?
Secretary of Homeland Security Jeh Johnson said that our country has
entered ``a new phase in the global terrorism threat'' as the so-called
Islamic State or ISIL continues to encourage people right here at home
to take up the cause of global jihad. Perhaps, to me, the best and most
concrete examples are events such as what happened in Garland, TX, just
a few weeks ago, when two people who had been communicating overseas
with representatives of the Islamic State were incited to take up arms
against their fellow citizens here in the United States of America. Why
in the world would we want to deny our law enforcement and intelligence
authorities lawful tools available to them to be able to identify
people plotting threats against the homeland and to prevent those
threats from actually being carried out?
Thank goodness, due to the vigilance of local police and other law
enforcement authorities, what could have been a bloodbath in Garland,
TX, was averted. Why in the world would we want to take away a tool
available to our intelligence and law enforcement authorities and raise
the risk that an attack here in the homeland be successful rather than
thwarted?
This is not just something that happened in Garland. A few weeks ago,
FBI Director James Comey described the widespread nature of the
threats--so widespread, in fact, that he said all 56 field divisions of
the FBI have opened inquiries regarding suspected cases of homegrown
terrorism. So let me repeat. Every FBI field division in the country is
currently investigating at least one suspected case of homegrown
terrorism.
As my colleagues must know, we do not have to go very far to find
other examples like the one I mentioned that
[[Page S3387]]
manifested itself in Garland. We read about examples regularly. Just 2
weeks ago, also in my home State of Texas, the FBI arrested a man who
had reportedly pledged his allegiance to the leader of ISIL. According
to the FBI, he is but one of hundreds of ISIL sympathizers here in the
United States, which ought to alarm all of us, ought to be a call to
vigilance and to make sure we maintain every available legal tool
consistent with civil liberties to protect our citizens.
So I think it is obvious that section 215 and the two
noncontroversial national security provisions at issue should not have
been allowed to expire, but unfortunately they were, and now it is our
responsibility to fill that gap by passing this legislation and taking
up the important amendments, which will actually strengthen the House
bill.
We know our country and our people are the target of terrorists
again, and we need to do everything we can to stop them. Well, my
initial preference was to extend these portions of the PATRIOT Act for
a short period of time so we could begin the debate and discuss the
next best move to address these issues without giving the terrorist any
advantage by handicapping the men and women committed to protecting our
homeland.
At a time when the threats to our country are increasing, we should
be enabling our intelligence officials and law enforcement with the
tools they need and not stripping them of the authorities they require
in order to protect us. Clearly a full extension of section 215, which
was easily extended in 2011, is not possible at this time. But the last
thing any one of us should do is allow this program to continue to
remain dark.
I encourage our colleagues to join me in quickly working together to
reauthorize these critical provisions. Every day we allow these
authorities to remain expired, our intelligence officials are forced to
act with one hand tied behind their back.
We plan to make minor improvements to the House-passed bill, and I
think they make a lot of sense, things such as actually getting a
certification by the Director of National Intelligence and this plan to
let the telecoms continue to hold this information and then, after a
court order is provided, allow that search. But certainly we should
want to know whether this actually will work in a way that is
consistent with our national security.
So, essentially, the House provisions are the base bill here, but I
think Chairman Burr and others on the Intelligence Committee have
recommended some very positive, commonsense improvements which will
make this bill better. Working together, the Senate and the House, I
think we can make sure these necessary authorities are restored.
As elected representatives of the American people, it is our duty to
make sure the balance between physical safety and civil liberties is
struck. We will do that again. We can do that responsibly by extending
these authorities and coming together to find a long-term solution that
keeps these invaluable tools in place.
I yield the floor.
The PRESIDING OFFICER. The Senator from North Carolina.
Mr. BURR. Mr. President, I thank the majority whip for his comments
and for his support of the extension of 215 and for what I think are
some very reasonable changes to it. Some of what the Senator from Texas
said took me back to some of the hearings I know the Presiding Officer
was in where intelligence officials were asked about this transition.
They were asked very simply ``Will it work?'' and the answer they gave
was ``I think so.'' To an institution such as Congress, where our No. 1
responsibility is the defense of the country, ``I think so'' is not the
answer on which you base the change of a program. Therefore, that is
why there is a debate in Washington right now--now in the Senate, soon
to be with the House--as to whether 6 months is sufficient time to be
able to address it.
I know the Presiding Officer of the Senate heard individuals from the
Justice Department say: Well, if this does not work, we will get back
to you on changes.
One of the reasons this tool is in place is because we identified
shortcomings in our capability to identify terrorists post-9/11.
Let me revert back--and I hate to go to history, but on 9/11, as the
majority whip said, there was the loss of almost 3,000 lives, American
and international lives. Washington, New York--could have been this
building had some brave passengers not found out what they were up to
and stopped them.
I remember those days and weeks and months right after 9/11 as a
member of the House Intelligence Committee. There are not many of us
left who were here. I think only 40 percent of the Senate was here on
9/11. What were the questions that went through our minds? Who did
this? Why did they do it? How wide was the plan to attack us? We had to
start from a dead stop and try to figure out the answer to all of those
questions. It is amazing that in a very short period of time we were
able to construct tools that made sure that America would never be
faced with questions such as those again and that if we were, it would
be a very short period of time, not weeks and months and in some cases
years to connect the dots and try to figure out how to keep this from
happening again. Section 215 was one of the tools that was created as a
result of 9/11.
I revert back to the Director of the FBI, who said last year that had
section 215 been in place prior to September 11, the likelihood is that
we could have connected the dots between a known terrorist we lost
track of by the name of Al Mihdhar, who traveled from Kuala Lumpur to
San Diego before we had a no-fly list, who communicated via cell phone
with a terrorist cell operating out of Yemen--we had the numbers out of
Yemen; we just did not have the number of Al Mihdhar. Had 215 been in
place, we could have tested the terrorist cell phones against the
database we had. The FBI Director's own words: We probably would have
stopped that component of 9/11.
Al Mihdhar and his roommate, I believe, were the two who flew the
plane into the Pentagon. Would it have captured everybody? Possibly
not. Would identifying two individuals incorporated in a cell inside
the United States have allowed the FBI to work through traditional
means of investigation and find the rest of that cell, those planes
directed--two planes toward New York and that fourth plane directed to
the Capitol? Maybe. Maybe it would have.
Maybe when are you trying to stop something, it is good, but when you
are talking about eliminating something, ``I think we can do it'' does
not meet my test. That is why one of the amendments I will ask my
colleagues to vote on is an amendment to make the transition period not
6 months but 12 months. It is to make sure we have allowed the NSA a
sufficient amount of time to technologically prepare the telephone
companies to be able to search their data in a timeframe that we need
to get in front of an attack versus in back of an attack.
It is very simple: If it happens in front, it is intelligence. If it
happens in back, it is an investigation. It is a legal investigation.
It has already happened. We are trying to make sure we stay in front.
I would like to take a moment to go over some myths about the PATRIOT
Act.
Here is myth No. 9: 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.
Fact: President Obama's review panel never opined on the legality of
the metadata program. It said the question of the program's legality
under the Fourth Amendment ``is not before us,'' and it is not the
review panel's job to resolve these questions of whether the program
was statutorily authorized.
Myth. Fact.
Myth No. 8: The national security letter is similar to what we fought
the Revolution over.
I am not a lawyer, but given what we have been faced with since
September 11, I think it would have been easier to go to law school
than to try to figure out some of these things. The national security
letter, despite its ominous-sounding name, is nothing more than an
administrative subpoena. It has the authority equivalent to the
authority postal inspectors employ to investigate mail fraud or IRS
agents use to investigate tax fraud. Postal inspectors and
[[Page S3388]]
IRS agents do not need judicial authorization to issue an
administrative subpoena. Our Framers would likely be embarrassed if the
post office had more authority to investigate postal fraud than the
Federal Government had to protect us from terrorism.
Before 215, the FBI would issue a national security letter that gave
them expansive investigatory tools. Now, they could not do it in a
timely fashion, but eventually they could not only get to a search of
telephone numbers, they could search financial records, and they could
search anything about an individual.
Let me remind my colleagues that what we are talking about in section
215, the metadata program--we have never identified an American. All we
have is a pool of telephone numbers with no person's name attached to
them, and we collect the date the call was made, the duration of the
call, and the telephone number that it talked to. The only time that
information can be queried is when we have a foreign telephone number
that we know to be the telephone number of a terrorist. Where we were
before was much more expansive with a national security letter, but it
was not timely, and if you want to be in front of an act, you have to
be timely. That is how 215 was created.
Myth No. 7: NSA collects your address book, buddy lists, call
records, et cetera, and then they put them 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.
Myth.
Here is fact: SNAC is the National Security Agency Systems and
Network Attack Center, which, among other things, publishes a
configuration guide to assist entities in protecting their networks
from intrusion. Its work could not be further from the allegation made.
Myth No. 6: Executive Order 12333 has no congressional oversight.
Boy, that is a strange one to the Intelligence Committee, which
spends a lot of time on oversight of 12333. It is simply wrong. S. Res.
400 of the 94th Congress created the Select Committee on Intelligence.
CRS--the Congressional Research Service--points out that the President
has a statutory responsibility to ``ensure that the intelligence
committees are kept fully and currently informed of the intelligence
activities of the United States.'' The committee routinely receives
reports on such matters, including reports on NSA activities under
Executive Order 12333. It is a part of the committee's mandate that we
do successful oversight, and it is a requirement of any President that
they make sure their administration fully cooperates and reports to
both the Senate select committee and the House select committee.
Myth No. 5: The President started this program by himself. He did not
tell us about it. Maybe one or two people knew about it.
Again, that is factually incorrect. Every Senator was put on notice
of the program's existence in 2010 and again in 2011. My gosh, it has
been a national--international debate over the last several weeks.
Myth No. 4: The PATRIOT Act goes from probable cause, which is what
the Constitution had, to articulable suspicion, down to relevance.
This statement conflates issues. Articulable suspicion and relevance
are not two different standards for the same thing. They both must be
present--both must be present--in the metadata program.
FISA, as amended by section 215 of the PATRIOT Act, allows the
government to seek a court order requiring the production of ``tangible
things'' upon a statement--articulation--of facts showing ``there are
reasonable grounds to believe'' those things are ``relevant'' to an
authorized investigation. This allows the government to seek call
records from telecommunications companies. Then, when those records
have been compiled into a database, that database can only be queried
upon a reasonable articulable suspicion that the number to be queried
is associated with a particular foreign terrorist organization.
We keep getting back to this, and of all the conversations that are
had on this floor about intrusion into privacy--one, let me state the
obvious fact again. It is hard for me to believe we have invaded
anyone's privacy when we have done nothing but grab a telephone number
and we have no earthly idea to whom it belongs. And the only reason we
would be concerned with that telephone number is if we pull a foreign
terrorist telephone number and we search it and find somebody in
America they have talked to. That is it. That is the entirety of the
program, and it is all predicated on the fact that we don't search
any--we don't query any data unless we have a foreign terrorist
telephone number known, and that is what triggers the program to begin
to meet the threshold of the court for a query of the information.
Myth No. 3: The FISA Court has somewhat become a rubberstamp for the
government.
First, if that characterization is correct, then the Federal criminal
wiretap process is even more of a rubberstamp for the government. The
approval rate for title III criminal wiretaps is higher than the
approval rate for FISA applications.
Second, this claim does a disservice to the practice of the FISA
Court, where there is often a back-and-forth between the government as
applicant and the court. Again, this is not unlike the criminal wiretap
process. The government often proposes to make an application before
making its final application. The chief judge of the FISA Court has
said it returns or demands modifications on these proposed applications
25 percent of the time. In this respect, the high approval rate of FISA
applications does not ``reflect the fact that many applications are
altered prior to final submission or even withheld from final
submission entirely, often after an indication that a judge would not
approve them'' because it had not met the threshold.
Third, the government has every interest in self-selecting only
meritorious applications to bring to the court. The government is a
repeat player at the FISA Court. It has a well-earned reputation as a
broker of candor before the court, and there would be significant
reputational costs to bringing nonmeritorious applications to the
court.
Let me sort of put in layman's terms what that is. The current
wiretap standard--equivalent to going to a FISA Court--approves at a
25-percent higher rate than the FISA Court. And the FISA Court is the
court that expedites time-sensitive investigations and time-sensitive
intelligence requests.
Myth No. 2: The problem in the FISA Court is that when they take you
to this court, it is secret.
True, it is secret, but so are any other judicial hearings where
classified information is before to the court, and that court shuts
down and goes into a nonpublic setting, just the way this institution
does. We will do it as we get into the appropriations bills, and when
we get into classified, sensitive appropriations, these doors will
shut, the Gallery will be cleared, the TVs will be cut off, and we will
do our business on secret, classified information.
It is only realistic to believe that the court--especially the court
that hears the most sensitive cases--would only hear those cases in
secret because the cases cannot be presented in public.
The last, No. 1: The bulk collection of all Americans' phone records
all of the time is a direct violation of the Fourth Amendment.
The Fourth Amendment protects against unreasonable searches. A search
occurs when the government intrudes upon ``a reasonable expectation of
privacy.'' The Supreme Court has noted ``that a person has no
legitimate expectation of privacy in information he voluntarily turns
over to third parties.''
The Court has also squarely determined that a person does not have a
Fourth Amendment-protected privacy interest in the numbers he dialed on
his phone. Telephone companies keep call records for billing purposes.
When the government obtains those records from a third-party
telecommunications provider, a search has not taken place for
constitutional purposes, and therefore a warrant is not required.
This program has been approved over 40 times by the FISA Court to
exist. The program was instituted by the executive branch. The
executive branch could end the program today. Why don't they? They
don't because this program is effective. This program has thwarted
attacks here and abroad.
[[Page S3389]]
I know individuals have come on the floor and they have said: There
is absolutely nothing that shows that section 215 has contributed to
the safety of America.
I can only say that they are factually challenged in that. You would
not have the majority of the Intelligence Committee on floor lobbying
for this program to continue in its current form. Now we know that is
not going to happen, so we are trying to reach a modification of the
current language so, in fact, we have a greater comfort level that the
intelligence community can be in front of attacks and not behind them.
I remind my colleagues that hopefully tomorrow afternoon we will be
at a point where we are ready to vote on amendments. There will be
three amendments to the USA FREEDOM Act.
The first one will be a full substitute. It will take all the
identical language of USA FREEDOM with two changes:
One, it will require the telephone companies to notify the U.S.
Government 6 months in advance of any change they make in their
retention policy of the data, the telephone numbers. I think it is a
very reasonable request that they give us 6 months' notice if, in fact,
they are going to reduce the amount of time they keep that data.
The second piece is that we direct the Director of National
Intelligence to certify at the end of the transition period that we can
successfully make the transition and that the technology is in place at
the telephone companies, provided by the government, that they can
query those numbers--in other words, that they can search it and take a
foreign terrorist telephone number and figure out whether they talked
to an American.
In addition to that substitute amendment, there will be two
additional amendments.
The first one will take the transition period that is currently 6
months in the bill and will simply make it 12 months. If I had my
preference, it would be 24 months, but I think this is a fair
compromise. And my hope is that, matched with the certification of the
DNI, we will be prepared to transfer this data but to continue the
program in a seamless fashion, although it will add some time--yet to
be determined--to how quickly we can make the identification of any
connection of dots.
The second amendment very specifically will be addressing the amicus
provision in the USA FREEDOM Act. I am going to talk about amicus a
little later, but let me just say for my colleagues that in the USA
FREEDOM Act, in numerous places, it says that the courts shall provide
a friend of the court.
I am not a lawyer, but my understanding from those who are lawyers is
that ``shall'' is an indication of ``you must.'' The courts have told
us that will be cumbersome and difficult and delay the ability of this
process to move forward. So the courts have provided for us language
that changes it to where the FISA Court can access a friend of the
court when they feel it is necessary but not be required to have a
friend of the court regardless of what their determination is.
We will talk about that over the next just shy of a day, but it is my
hope to all the Members that all three of these amendments can be dealt
with before 24 hours is up and that passage of the USA FREEDOM Act as
amended by the Senate can be passed to the House for quick action by
the U.S. House and hopefully by the end of business tomorrow can be
signed by the President and these very important programs can be back
in place.
I would make one last note--that I am sure Americans find it
troubling that this program is going to be suspended for roughly 48
hours. In the case of investigations that are currently underway, they
are grandfathered and the ``lone wolf'' and roving wiretap can still be
used, but new investigations have to wait for the reauthorization of
this bill. From the standpoint of the metadata program, last night at 8
o'clock it could no longer be queried, and it won't be able to be
queried until this is reauthorized.
There is time sensitivity on us passing this, just as there is time
sensitivity in getting the language of this bill correct so that, in
fact, we can query it, we can connect the dots, and we can get in front
of an attack prior to the attack happening.
I urge my colleagues in the Senate to spend the next 24 hours
understanding what is in the USA FREEDOM Act. Look at the amendments.
They are reasonable. They don't blow up this piece of legislation. They
provide us the assurance that we can make this transition and that
after we make the transition, the program will still work.
I urge my colleagues to support all three amendments.
I yield the floor.
I suggest the absence of a quorum.
The PRESIDING OFFICER (Mrs. Ernst). The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. McCONNELL. Madam President, I ask unanimous consent that the
order for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. McCONNELL. Madam President, it is time to get the job done on
FISA. It is time to get the job done.
From the beginning of this debate, I had aimed to give Senators a
chance to advance bipartisan compromise legislation through the regular
order. That is why I offered extension proposals that sought to create
the space needed to do that. But as we all know, by now, every effort
to temporarily extend important counterterrorism tools--even
noncontroversial ones--was either voted down or objected to.
So here is where we are. We find ourselves in a circumstance where
important tools have already lapsed. We need to work quickly to remedy
this situation. Everyone has had ample opportunity to say their piece
at this point. Now is the time for action.
That is why, in just a moment, I will ask for unanimous consent to
allow the Senate to consider cloture on the House-passed FISA bill,
along with amendments to improve it, today--not tomorrow but today.
There is no point in letting another day lapse when the endgame is
clear to absolutely everyone--we know how this is going to end--when we
have seen such a robust debate already, a big debate, not only in the
Senate but across the country, and when the need to act expeditiously
could not be more apparent.
Madam President, I ask unanimous consent that at 6 p.m. today, the
Senate vote on the pending cloture motion on H.R. 2048, the U.S.
FREEDOM Act, and that if cloture is invoked, that all postcloture time
be yielded back and the Senate proceed to vote on the pending
amendments under the regular order; that upon disposition of the
amendments, the bill be read a third time, as amended, if amended, and
the Senate proceed to vote on passage of the bill, as amended, if
amended.
The PRESIDING OFFICER. Is there objection?
The Senator from Kentucky.
Mr. PAUL. Madam President, reserving the right to object, I would be
happy to agree to dispensing with the time and having a vote at the
soonest possibility, if we were allowed to accommodate amendments for
those of us who object to the bill. I think the bill would be made much
better with amendments. If we can come to an arrangement to allow
amendments to be voted on, I would be happy to allow my consent. But at
this point, I object.
The PRESIDING OFFICER. Objection is heard.
Mr. McCONNELL. Madam President, without consent to speed things up,
the cloture vote will occur an hour after the Senate convenes tomorrow,
on Tuesday. Therefore, Senators should expect the cloture vote at 11
a.m. tomorrow.
The PRESIDING OFFICER. The Senator from North Carolina.
Mr. BURR. Madam President, before the recess, there was an attempt to
try to bring finality before this bill expired. At that time, I reached
out to my friend and colleague from Kentucky, Senator Paul, and offered
him my assurance, as manager of the bill, that we would take up his
amendments. But as the President of the Senate knows, if any one
Senator objects to a vote, then a vote does not happen. I consented at
that time that I would initiate a tabling of his amendment so that
there could actually be a vote. There has been every attempt to try to
accommodate amendments. I think that given the short time that we are
[[Page S3390]]
dealing with, where we are trying to make sure that the expiration of
these needed tools is as limited as we can, the leader is exactly
right. You cannot go outside of the processes that were already
triggered prior to this.
I think we have made every attempt to try to accommodate the current
Senate rules, but unfortunately, there were objections to that as we
departed town over a week ago, and we are where we are.
For my colleagues' sake, let me restate where we are. We have had the
expiration as of midnight last night of section 215. Section 215 has
many pieces to it, but there are three that are highlighted. One is the
``lone wolf'' provision, an individual who has no direct tie to a
terrorist organization but could be radicalized in some type of
communication, and ``lone wolf'' provides us the ability to target them
without a direct association to a terrorist group. And roving wiretaps
are the ability to target an individual and not a specific phone.
These two are noncontentious, and there was a request by unanimous
consent yesterday before the expiration to extend those two pieces.
There was an objection. The Senate operates by rules. When one Senator
objects, everything stops. For that reason, those two provisions
expired last night.
Let me say for the benefit of my colleagues and for the American
people that any investigation that was currently under way as of 12
o'clock last night can continue to use those two tools. What is
affected while we are in this expiration period is that you cannot open
a new investigation and use those two tools to investigate that
individual. So we are limited on anything that might have opened since
12:01 this morning.
My hope is that the Senate will dispose of all of the 215 provisions
by 3 o'clock tomorrow. We can turn the faucet back on, and law
enforcement can use those two tools.
But the third piece has been the focus of contention in the Senate
and in the country, and it deals with a program called the metadata
program. It is a scary word. Let me explain what the metadata program
is.
The NSA receives from telephone companies a telephone number with no
identity whatsoever. We refer to it as a deidentified number. They put
all of that into one big database. The purpose of it is that when we
find a known terrorist outside of the country and we have his telephone
number, then we want the ability to query or search that big database
to see if that known terrorist talked to anybody in the United States.
We actually have to go to court--to the FISA Court--to get permission,
and we have to have articulate, reasonable suspicion that there is a
connection, that that known terrorist's telephone number can be tested
against this database. We collect the telephone number, we collect the
date the call was made, and we collect the duration of time of the
call. There is absolutely zero--zero--content. There is zero
identifier. There is not a person's name to it. People have questioned
whether the program is legal. It is legal because the Supreme Court has
said that when we turn over our data to a third party, we have no
reason to believe there is a privacy protection. Therefore, when we get
that telephone number from a telephone company, we throw it into a
pool, and the only person who should ever be worried is somebody who is
in that pool that actually carried on a conversation with a terrorist.
And if we connect those two dots--a person in America and a known
terrorist abroad--and they communicate, then it is immediately turned
over to the FBI for an investigation. It is a person of suspicion. We
turn it over to law enforcement. Law enforcement then goes through
whatever court procedures they need to do to investigate that
individual.
That is the metadata program. That is the contentious thing that has
bogged this institution down to where we have let it expire--in most
cases because people have suggested it is something other than what I
have just described.
I have read a lot of the myths. Let me just go back through some of
them again. I think it is important.
Myth No. 1: The NSA listens to Americans' phone calls and tracks
their movement.
The NSA does not and cannot indiscriminately listen to Americans'
phone calls, read their emails or track their movement. The NSA is not
targeting or conducting surveillance of Americans. Under the Foreign
Intelligence Surveillance Court--FISA Court--order, the only
information acquired by the government from telephone companies is the
time of call, the length of call, and the phone number involved in the
call. The government does not listen to the call. It does not acquire
the personal information of the caller or the person who is called,
which is obtained only through a separate legal process including, if
necessary, a warrant based on probable cause, which is the highest
standard that the judicial system has.
Frankly, there is more information available in a U.S. phonebook than
what the NSA puts in the metadata base. There is more privacy
information that Americans share with their grocery store when they use
their discount card to get groceries. There is more data that is
collected at the CFPB on the American people than the NSA ever dreamed
about, but there is nobody down here trying to eliminate the CFPB,
although I would love to do it tomorrow. But the fact is, if this is
about privacy, how can we intrude on anybody's privacy when we do not
know who the individuals are of the phone numbers that we have? And
there is the fact that the Supreme Court has said that when you
relinquish that information to your phone company, you have no right of
privacy.
Myth No. 2: The NSA program is illegal.
There have been some who have come to the floor and said that. The
Supreme Court held in Smith v. Maryland and in U.S. v. Miller that
there is no reasonable expectation of privacy in telephone call
records, such as those obtained under section 215. Those records are
not protected by the Fourth Amendment.
Under the current 215 program, the judges of the FISA Court must
approve any request by the FBI to obtain information from the telephone
companies. Congress has reauthorized the PATRIOT Act seven times. The
FISA Court reviews the act in an application every 90 days, and the
FISA Court has approved the reauthorization of those 90-day extensions
over 41 times.
This is not a car on cruise control. This is a program that every 90
days the court looks at and assesses whether for another 90 days we
have the right to run the program. Put on top of that, the
congressional oversight of the program is probably the second-most or
third-most looked at program by the Senate and House Intelligence
Committees of any program within our intelligence community.
Myth No. 3: The NSA dragnet repeatedly abuses government authority.
The government does not acquire content or personal information of
Americans under the section 215 program. The names linked to the
telephone numbers are not available unless the government obtains
authorization through a separate legal process, including, if
necessary, a warrant based on probable cause.
Careful oversight of the program reveals no pattern of government
abuse whatsoever. In fact, after more than a decade, critics cannot
cite a single case of intentional abuse associated with FISA
authorities. That is a far cry from the debate that we have listened to
and, I might say, that has been covered on some of the national media.
Myth No. 4: The government stopped only one plot using section 215.
For anybody that was listening earlier to me, I described four
specific things that I can talk about in public. There were four plots.
A plot is something that you get to before an act is done.
We even talked about the Tsarnaev brothers, who committed a violent
act that killed and maimed a number of people in the Boston Marathon.
We had the ability because we had a foreign telephone number that we
thought was tied to the Tsarnaevs, and even after the fact, we were
able to go back and use 215 to see if there was a foreign nexus to an
act that had already been committed. In this case, we could not find
that nexus, but we had the tools available so that law enforcement
could responsibly look at the American people and say we have done
everything to make sure that there are not additional participants in
this act who
[[Page S3391]]
might carry it out at the next marathon or the next race or the next
festival. That is what our ability is supposed to be if, in fact, our
oath of office as a Member of Congress is to defend the country, number
one.
Myth No. 5: The FISA Court is a rubberstamp.
Despite all the claims that the FISA Court approves 99 percent of the
government's applications, the FISA Court often returns or demands
modifications to about 25 percent of the applications before they are
even filed with the court. According to the FISA Court chief judge, the
99-percent figure does not reflect--does not reflect--the fact that
many applications are altered prior to the final submission or even
withheld from final submission entirely, often after an indication that
a judge would not approve them.
Let me put this in perspective. Twenty-five percent more of the
wiretap applications are approved than of FISA. I mean, that says
enough right there. In comparison to Federal court documents which
include wiretap applications as instructed, of the 13,593 wiretap
applications filed from 2008 to 2012, the Federal district court
approved 99.6.
The only reason that FISA is at 99 percent is because when the
government sees that they are not going to be approved, they withdraw
the application. That seldom happens in wiretap applications.
Myth No. 6: There is no oversight of the NSA.
The NSA conducts these programs under the strict oversight of three
branches of government, including a judicial process overseen by
Senate-confirmed judges appointed to the FISA Court and a chief judge
of the United States. Republicans and Democrats in Congress together
review, audit, and authorize all activities under FISA. There are few
issues that garner more oversight attention by congressional
Intelligence Committees than this program, as well as the
responsibilities imposed on the executive branch to make sure that the
Federal agencies in a timely fashion share all information with the
select committees in the Senate and the House for the purposes of
oversight of our intelligence community. Now, some have suggested that
because the Director of the NSA says we think we can do this, we should
just trust them. Please understand that the reason we are having this
debate is because some have suggested that the NSA cannot be trusted.
Once again, I will state for my colleagues that we are going to do
everything we can to wrap this up by 3 p.m. tomorrow. The debate about
whether the data is going to transfer from the metadata program at NSA
to the telephone companies has been decided. It will transfer. Over the
next 24 hours, we will attempt to take up the USA FREEDOM Act--the
exact language that was passed by the House--with a substitute
amendment that embraces all of the House language with the exception of
two issues. We will make two changes. One of the changes will require
the telephone companies to provide a 6-month notice of any change in
their data retention policy. In other words, if one telephone company
has an 18-month retention program currently in place and they decide
they are only going to hold the data for 12 months, they have to notify
the Federal Government 6 months in advance of that change.
The second change will require the Director of National Intelligence
to certify that on the transition date, that the government has
provided the technology for the telephone companies to be able to
search the data in a timely fashion for us to stay in front of attacks.
In addition to that substitute amendment, which I hope my colleagues
will support because there are minimal changes, there will be two
amendments to the bill.
The first amendment will change the transition period from 6 months
to 12 months. So when the Director of the NSA says ``I think we can do
it in 6 months,'' to the Intelligence Committee, ``I think we can do
it'' is not a good answer. So what we are asking is that we go from 6
months to 12 months so we can make sure the technology is in place for
this program to continue.
The last piece is a change in the amicus language of the bill or the
friend-of-the-court language in the bill. The bill itself uses the
words that the courts shall--which means must--have a friend of the
court, and that is not needed in all cases. If that is applied to all
cases, it will put in place a very cumbersome and untimely process.
When we are dealing with trying to get in front of an attack and
dealing with individuals who are linked to known terrorists abroad, we
want to have a way to query that data, to search that data as quickly
as we possibly can with the approval of the court. So what we have done
is taken language that has already passed out of the Intelligence
Committee and has been signed off by the courts that changes ``shall''
to ``must.'' It basically says that the court has the opportunity,
anytime they need a friend of the court's advice, to turn to it and to
get it, but it doesn't require that they have a panel set up that
automatically sits in on every consideration, because a judge doesn't
always need that.
As the Presiding Officer of the Senate knows, the FISA Court operates
in secret, which is another criticism of many people. Well, I don't
want to share any secrets, but sometimes the Senate operates in secret.
Most of the time, the Intelligence Committee operates in secret.
Believe it or not, some titans of the courts in our country operate in
secret. They have the authority to do it anytime there is secret or
classified information that can't be shared publicly.
Well, that is all the FISA Court does. That is the reason it is in
secret. It is not because we don't want the American people to know
that there is a FISA Court or that there is an application or a
decision made by the FISA Court, but everything the FISA Court takes up
is secret or classified, so it has to be done in secret, just like some
of the budgets and some of the authorizations we do in the Senate that
are classified. We shut these doors, we empty the Gallery, we cut off
the TV, we hash out our differences, we come together, and we have a
piece of legislation that only those people who are cleared can read.
That is part of functioning. And part of functioning from a standpoint
of getting in front of terrorism is to make sure the tools are in place
to allow not only intelligence but law enforcement to do their job.
I think when the American people understand how simple this program
is--we take the telephone numbers, we take the date the call was made,
we take the duration of the call, and if it connects to a known foreign
terrorist number, then we turn it over to the Federal Bureau of
Investigation and they go to court to figure out whether this is an
individual they need to look at. It is no longer a part of the
intelligence community. It is a valuable tool. It has helped us to
thwart attacks in the past. My hope is that after we get through with
business tomorrow at about 3 p.m., that this will continue to be a
useful tool.
I urge my colleagues to expeditiously consider not only the base
language but the substitute and both amendments.
I yield the floor.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Ms. MIKULSKI. Madam President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Remembering Beau Biden
Ms. MIKULSKI. Madam President, I rise to speak about where we are as
we debate the various aspects of the USA FREEDOM Act. However, before I
proceed with my statement on the current issue before the Senate, I
really wish to note the very sad passing of our Vice President's son,
Beau Biden, who passed away at age 46 of brain cancer.
Of course, the world knows this now because of the news announcement.
Standing on the Senate floor, where I served with the Vice President
when he was a U.S. Senator, I just personally want to express my
condolences to him on behalf of myself, his friend in the U.S. Senate
and his colleague on so many issues, as well as the people of Maryland.
Once the news broke over the weekend, many people asked me in my home
State: Did you know him? Had you ever met him? There is just a general
outpouring of sadness for his family, his wife, his two children, and,
of
[[Page S3392]]
course, the Vice President and his stepmother Jill. So, Mr. Vice
President, if you have the opportunity to listen, know that the U.S.
Senate is sending our thoughts and our prayers to you during this
difficult time.
Madam President, I wish to speak now about where we are in terms of
our parliamentary situation. Once again, here we are in the Senate
where, when all is said and done, more is getting said than is getting
done. I am a very strong proponent of the oath I took to defend the
Constitution of the United States against all enemies. By that I mean
we have to be able to protect this country. We need to have a sense of
urgency about it.
I am not only disappointed, I am deeply, deeply, deeply frustrated
that the key authorities of the PATRIOT Act expired last night, when we
had a path forward on legislation that would be constitutionally sound,
would be legal, and would be authorized. But what did we do? We got
ourselves into a parliamentary quagmire with the filibuster of one
individual, which now has left us exposed in the world's eyes.
Major authorities were given to our intelligence community to be able
to pursue the surveillance of potential terrorists, and they have
expired. Those authorities included ``lone wolf,'' the roving wiretap,
and some other aspects involving surveillance, and we have just let
them expire at midnight. Right now, I hope we do what we can to pass
the USA FREEDOM Act without delay. We need to get these authorities
restored. Do we need reform? Absolutely. But let's not delay. Let's get
it going.
Others are going to speak later on today on the merits of the USA
FREEDOM Act. I believe it is our best opportunity to protect the
Nation, while balancing privacy and constitutionally approved
surveillance. I do support reforming the PATRIOT Act, but I don't
support unilateral disarmament. I don't want to throw the PATRIOT Act
away. I don't want to throw away our ability to place potential
terrorists under surveillance. I don't want to give in under the guise
of some false pretense about privacy where we say, Well, gee, I worry
about my privacy, so the terrorists don't need to worry about us being
able to pursue them.
Our Nation needs to know that when bad guys with predatory intent are
plotting against the United States of America, we are going to know
about it and we are going to stop it. We are going to know about it
because we have the legal authority to track them, put them under
surveillance, and we are going to stop them before they do very bad
things to our country.
The purpose of my comments today is to stand up not only for the
ability to have a law but also for the men and women who are working
for the intel agencies--for the people who work at the National
Security Agency in my own State, the FBI, and other agencies within our
intel community who are essential to protecting our country against
terrorist attacks, whether it is a ``lone wolf'' or State-sponsored
terrorism.
These dedicated, patriotic, intelligence professionals want to
operate under a rule of law. They want to operate under a rule of law
that is constitutional, that is legal, and that is authorized by the
U.S. Congress. They are ready to do their job, but they are wondering
when we are going to do our job.
Congress needs to pass a bill, as promptly as it can, that is
constitutional, legal, and authorized.
We on the Intelligence Committee have worked long and hard on such a
legislative framework. We have cooperated with members of the Judiciary
Committee, including Senators Grassley of Iowa and Leahy of Vermont,
who have also worked on this. We worked together putting our best ideas
forward, doing the targeted reform that was essential, not pursuing
unilateral disarmament, and we now have legislation called the USA
FREEDOM Act. Is it a perfect bill? No, it is not perfect, but it is
constitutional. If we pass it, it will be legal, and it will be
authorized.
I know the Presiding Officer is a military veteran and I support her
for her service. The Presiding Officer knows what it is like when
people try to trash America.
Ever since Eric Snowden made his allegations, the wrong people have
been vilified. The men and women of our intelligence agencies have been
vilified as if they were the enemy or the bad guys.
I have the great honor to be able to represent the men and women who
work at the National Security Agency and some other key intelligence
agencies located in my State. They work a 36-hour day. Many times they
have worked a 10-day week. When others have been eating turkey or
acting like turkeys, they were on their job, doing their job, trying to
protect America.
Let me tell my colleagues, these people who work for the National
Security Agency, for the FBI, and other intelligence agencies are
patriots. They are deserving of our respect, and one way to respect
them is to pass the law under which they can then operate in a way that
is again appropriate. At times, these men and women, ever since Eric
Snowden, have been wrongly vilified by those who don't bother to inform
themselves about national security structures and the vital functions
they perform. Good one-liners and snarky comments have been the order
of the day.
Now, the National Security Agency is located in my State, but I am
not here because it is in my State. I am here because it is located in
the United States of America. Thousands of men and women serve in
silence without public accolades, protecting us from cyber attacks,
against terrorist attacks, as well as supporting our war fighters. I
wish the Presiding Officer would have the opportunity to come with me
to meet them sometime. They are linguists. They are Ph.D.s. the
National Security Agency is the largest employer of mathematicians in
America. They are the cyber geeks. Many of them are whiz kids. They are
the treasured human capital of this Nation. If they had chosen to go to
work in dot-com agencies, they would have stock options and time off
and financial rewards far beyond what government service can offer. We
need to be able to support them, again, by providing them with the
legal authority necessary.
Remember, that section 215 is such a small aspect of what these
intelligence agencies do as they stand sentry in cyber space protecting
us. People act as though that is all NSA does. They haven't even
bothered to educate themselves as to the legality and constitutionality
of where we are.
Now, let's say where we are and let's say where we have been. Much
has been said about the PATRIOT Act. It has been sharply criticized.
There has been no doubt that it does require reform. That is why the
Congress, in its wisdom, when it passed the bill right after 9/11, put
in the safeguard of periodic sunsets so we could take a breather and
reexamine the law to make sure what we did was appropriate and
necessary.
Congress did pass the PATRIOT Act so the men and women at the
intelligence agencies worked under what they thought was the rule of
law that Congress supported. President George Bush also told us and his
legal advisors told us that it was constitutional, so people believed
it. Those men and women at the intelligence agencies thought they were
working under legislation that was constitutional, legal, and
authorized because we passed it. Well, now others say it wasn't. Others
even want to filibuster about it. They want to quote the Founding
Fathers. Well, I don't know about the Founding Fathers, but I know what
the ``founding mothers'' would have said. The ``founding mothers''
would have said get off the dime and let's pass this legislation.
We do need good intelligence in a world of ISIL, al-Nusra Front, and
Al Qaeda. NSA is one of our key agencies on the frontline of defense,
and the people of the National Security Agency make up the frontline.
As they looked at audits, checks and balances, and oversight, there was
no evidence ever of any abuse of inappropriate surveillance on American
citizens. We need to know that and we need to recognize that. Those
employees thought they were implementing a law, but some in the media--
and even some in this body--have made them feel as though they were the
wrongdoers. I find this insulting and demeaning.
The morale at the National Security Agency was devastated for a long
time. People were vilified, families were harassed for even working at
the NSA,
[[Page S3393]]
and, in some instances, I heard even their children were bullied in
school. This isn't the way it should be. They thought they were
patriots working for America. When the actions of our own government
have placed these workers where they feel under attack--they were
attacked by sequester and they felt under attack by a government
shutdown because many of them were civilian employees at DOD--they were
not paid--and now Congress's failure to reform national security has
further then said: We can take our time. What you are doing is
important, but we have to talk some more.
Gee, we have to talk some more. What do you mean we have to talk some
more? The only person in the Chamber is my very distinguished
colleague, the distinguished colleague from Indiana, whom I work with
in such a wonderfully cooperative way on the Intelligence Committee.
You know we are not bipartisan, we are nonpartisan for the good of the
country.
Where is everybody who wanted to speak? Do we see 10, 20, 30, 40, 50
Senators lined up waiting to speak? No. We have to kill time. I don't
want to kill time. I am afraid Americans will be killed. We have to get
on this legislation and we have to get our act together and we have to
pass it. I want the people to know we cannot let them down by our
failure to act and to act promptly.
I come to the floor to say let's pass the USA FREEDOM Act and let's
do it as soon as we can. I know a vote has been set for 11 o'clock
tomorrow. That means that it will be almost 35 or 36 hours since the
authorities expired, and then it has to go over to the House. So let's
move it and let's keep our country safe and let's get our self-respect
back.
For those who looked at our country, there were three attitudes
toward America: One was great respect for who we are, our rule of law;
the other was our fear, because we were once the arsenal of democracy;
and, third, the yearning to be in a country that worked under a
Constitution, a Congress that worked to solve the problems of our
Nation. Can we get back to that? I know the Presiding Officer wants to
get back to that. I know my colleague here wants to be part of that.
Let's get back together, where shoulder to shoulder we shoulder our
responsibilities, pass the legislation we need to, protect our country,
respect the men and women who work there, and say to any foe in the
world that the United States of America stands united and is willing to
protect us, and to the men and women who work for us in national
security, we will support you by passing legislation promptly that is
constitutional, legal, and authorized.
Madam President, I yield the floor.
The PRESIDING OFFICER. The Senator from Indiana.
Mr. COATS. Madam President, I want to thank my colleague from
Maryland, a member of the Senate Intelligence Committee. It is obvious
this is a bipartisan effort in dealing with the security of the
American people. The Senator from Maryland is not from my party.
Together, we serve on the Intelligence Committee. We have served
hundreds of hours on that committee together doing everything we can to
provide our country with the opportunity to protect Americans from
harm.
The threat to Americans today has never been greater. We are dealing
with fires raging in the Middle East and terrorist groups forming as we
speak, targeting the United States and Americans, and inspiring
Americans to take up arms against their fellow citizens for whatever
jihadist cause they are using as the basis for the brutality that is
spreading throughout the Middle East and that can happen here if they
respond to these inspirational social media requests from organizations
such as ISIS, Al Qaeda, and many others.
I understand Americans' frustrations and concerns about their civil
liberties and privacy. Those concerns have been bolstered by acts of
government that can hardly be explained. Look at what has taken place
with the IRS. Talk about targeting people, invading their privacy and
civil rights and using the organization of government for political
purposes is outrageous. Of course, people are up in arms about all of
this, the debacle of Benghazi and Fast and Furious and on and on over
the years. One can go into what has happened to instill distrust in the
minds of the American people.
When a program such as this comes along and, unfortunately, the
American people are told by Members of this Congress falsehoods as to
what this program is and what it isn't, it just feeds the narrative
that Washington is in their bedroom, Washington is in their home, it is
in their phone, it is listening to their calls--Washington is
monitoring everything they do--their locations.
This simply is not true. We have an organization and tools put in
place with that organization, the National Security Agency, following
the tragic events of 9/11 that the American people insisted on putting
in place. Let's use the tools that we can to try to prevent another 9/
11 from happening, to try to identify terrorist attacks before they
happen, not to clean up after they happen.
The frustration for those of us on the Intelligence Committee is we
are not able to come down and refute statements that are false that are
made here without breaching our oath not to release classified
information. We have had briefings with all of our Members. Some don't
choose to attend, and therefore their narrative continues without any
ability to publicly challenge what is being said. It has been said on
this floor that Big Government is listening to everyone's phone calls.
That is patently false.
First of all, it is impossible. There are trillions of phone calls
made every day throughout the world. The calculation is that it would
take 330 million employees sitting there monitoring Americans' phone
calls to be able to listen to everyone's phone calls. It is an
impossibility, No. 1.
No. 2, it is guaranteed that this is not happening because the
authorities given to the National Security Agency prevent that from
happening. There are layers and layers of attorneys and others who
oversee this process, including those of us in the Intelligence
Committees in the Senate and the House, the Justice Department, and the
executive branch. All three branches of government are so concerned
that this program could potentially be abused that the oversight is
such that it would take a monumental conspiracy, involving hundreds and
hundreds of people, to all agree that, yes, let's do this and breach
the law.
If what has been said on this floor about the nature of this program
was correct, I would be the first to line up and say I am here to
defend the liberties that are being abused by the government. I
guarantee to my constituents that this is a high priority for me, that
I do not support anything that would violate their civil rights or
violate their privacy. That is true of those of us on the Intelligence
Committee, whether we are a Democrat or Republican.
We have heard today from Senator King, who is on the committee. We
have heard from Senator Mikulski of Maryland, who spoke. We heard from
Senator Nelson, who was formerly on the committee on the Democratic
side. On the Republican side, our leader of the committee, Senator
Burr, has laid out in great detail how this works.
The tragedy is that in being forced to describe what the program is
and what it isn't, we have had to declassify information. Guess who is
listening.
I hope a lot of the American people are listening because they need
to understand that much of what they have heard is simply a falsity. It
is factually incorrect.
I am not going to go into why this has happened, why some Members
choose to say things like--and I am stating what has been said on this
floor--``Big Government is looking at every American's records, all
Americans' phone records all the time. They have said the NSA collects
Americans' contacts from address books, buddy lists, calling records,
phone records, emails, and do we want to live in a world where the
government has us under constant surveillance?''
None of us want to live in that kind of world. That is why we live in
America. That is why America is what it is. This is not Stasi Germany.
This is not a Communist regime. This is not a totalitarian society. We
would not allow that here. Our Constitution guarantees privacy and we
cherish that privacy and we protect that privacy. But to
[[Page S3394]]
come down to this floor and make statements such as those is
irresponsible, and it is a narrative that is just not the case.
Poor Ben Franklin has been dragged into this because the quote that
has been attributed to Franklin that should drive our decision on this
point was: ``Those who would give up essential Liberty to purchase a
little temporary Safety deserve neither Liberty nor Safety.''
I agree with that, but the key word here is ``essential.'' This
matter has come before the Supreme Court, and the Supreme Court has
said that what the NSA is doing in storing phone numbers only--not
names, not collecting information--is not essential to liberty. They
have declared it as a necessary, effective tool that is open. The only
information that is in your phone record is the date of the call, the
number called, the duration, and the time of the call--nothing more
than that.
Why is this done? It is done so that when we determine the phone
number of a known terrorist in a foreign country, we can go into that
haystack of phone numbers and say, Was that phone number connected to a
phone number held by someone in America?
In fact, the former Director of the CIA said that we likely would
have prevented 9/11 because we now know that a phone number in America
was connected to a phone number of a terrorist group--Al Qaeda--and we
could have taken that information to the FISA Court or to a court and
gotten permission to check into that to see if that was leading to some
kind of terror attacks.
It doesn't take much to recall the images of what happened on 9/11,
where we were, what horror we stood and watched coming over the
airwaves, and the tragedy and the loss of life that took place,
changing the face of America.
So it is important that we tell the American people what it is and
what it isn't. It is important that Members take responsibility to
understand this is an issue that rises above politics. This is an issue
that cannot be used and should not be used for political gain, whether
it is monetary gain or whether it is feeding a base of support that
responds to the scare tactics of America listening to all of your
calls, Big Government in all of your business.
This is too important an issue. This is about the safety of America.
This is about preventing us from terrorist attacks. The threat is real,
and it is more real than it has been in a long, long time.
So I talked yesterday about the existing program, what it was and
what it isn't. It has been talked about by my colleagues on the floor.
We have moved to a point where we have to choose between the better of
two bad choices.
One choice is that we eliminate the program. One of our Members in
the Senate has publicly indicated that is what he wants to do. He
claims it is unconstitutional. Unfortunately, he doesn't have the
support of the Supreme Court that has dealt with this issue, nor the
constitutional lawyers. That is a case that just simply cannot be made
because it doesn't impede on anyone's liberty.
Again, I would say, if it did impede on Americans' liberty, I would
be the first in line to state that and to fight against it. But it is a
solution to something that is not a problem.
But secondly, because one individual would not grant even the
shortest of extensions, even an extension on two noncontroversial parts
of this program that no one has challenged, to allow that to go forward
so that we could keep something in place to address a potential threat
that could happen--even that was denied us last evening as the clock
was ticking toward midnight, and the program expired. Someone who is so
determined to eliminate this entire program, who has misrepresented
this program to the American people, so determined to stay with his
narrative that he would not even allow an hour, not even allow a day,
not even allow minutes for us to try to reconcile the differences here
with the House of Representatives--and those differences are pretty
small.
Senator Burr has been in negotiations with the House and with Members
of the Senate relative to some changes and modifications in the USA
FREEDOM Act, which was supported by a significant bipartisan majority
in the House of Representatives. I think that is a step in the right
direction. It does not solve all of the problems. My concern with the
FREEDOM Act is a concern of many; that is, the act has some major
flaws, some of which I thought were fatal. But I have to measure that
against nothing.
Thanks to the procedural maneuvering by one Member here, we have been
left with only two choices. The Senate majority leader laid those out
with some clarity yesterday and today. The choices are completely
eliminate the program, go completely dark, take away this tool, and put
Americans more at risk--thanks very much, but it is over and try
something else--or a provision that has been passed by the House of
Representatives that moves collection of the phone numbers from NSA to
the telephone companies. The problem with the bill is that it does not
mandate that movement. It is a voluntary act that the phone companies
are most likely not going to want to adhere to, primarily because they
now have to set up a situation where they potentially could be liable
for breaches of the people who are overseeing their program.
There are 1,400 telephone companies in the United States. Many of
them are small. But to move this program, which has six layers of
oversight at NSA, which has the oversight of the Senate Intelligence
Committee and the House Intelligence Committee, which has the oversight
of the Department of Justice and the administration, and which has the
oversight of the Federal intelligence court called FISA--all of that
security oversight--to make sure there is no breach will now get
transferred over to up to 1,400 telephone companies.
The people who oversee this program--it is a very small number at NSA
who operate this program--have had intensive background checks and
security clearances. They have proven their commitment to make sure--to
do everything possible not to abuse this program. There has never been
a documented case, never one case of an abuse of this program--again, a
solution to something that is not a problem.
All of a sudden, now we will have dozens, if not hundreds, if not
more than 1,000 phone companies all putting their own programs in
place. This is not something they would like to do, No. 1, because it
is going to be very costly, and, No. 2, they cannot guarantee that
every one of their people is going to have the same kind of background
check and security check NSA has. They will not have the oversight of
the Intelligence Committees, of the Justice Department, of the
executive branch.
We are trusting a private entity to do the kinds of things that
multiple agencies do. And you can just count on probably some breaches
of security there as people want to use the capability to abuse that
program for whatever reason--maybe checking up on their wife or their
girlfriend or their business partner or who knows for what possible
reasons they could use it. So it really does not add privacy
protections; it detracts from privacy protections.
Secondly, the retention of records is voluntary. Now, if we have some
amendments that are passed by this body and accepted by the House, we
will get notification if a company does not want to retain those
records. But there is no retention authority granted here to us to
ensure that those companies will keep any phone numbers, and then the
capability of the program will be significantly reduced.
We are having to look at a very sophisticated program that the NSA
says: We are not sure it is going to work. We are not sure if this
process that the FREEDOM Act requires to replace what we have now is
going to be effective.
It is going to take many months to determine if that is the case. So
it is an untested program that we are putting a bet on that this is
going to work. It would be nice to know we had something in place we
can easily replace this with. So we are going from the known to the
unknown. We are making a bet that this is going to be more effective
and provide more privacy for the American people. It is a diminishment
and a significant degradation of the current program. It will not be as
effective as the program that is currently in place. Nevertheless, we
have
[[Page S3395]]
to weigh this against nothing. That is the position we have been put in
because one Senator would not allow an extension of time for us to have
a more lengthy debate and reasonable negotiation in consultation with
the House of Representatives to arrive at something that will give us
more assurance that we have a program in place that does not breach
privacy but allows us to detect potential terrorist attacks and stop
those attacks before they take place.
Having had to go through all of this and raise these kinds of issues
here and talk about a fellow colleague is not fun. It is not something
I hoped I would ever have to do. But I could not stand by and watch a
program that is helping protect American people from known terrorist
threats and let their safety be jeopardized by falsehoods that are
being said about what this program is and is not.
It looks like we are coming together on something that is far from
what we need, that is going to significantly degrade our capability,
but it is the only choice that we have. We are going to have to weigh
that decision. Is something that is far less better than nothing?
Ultimately, given the fact that these threats have never been greater,
something--even if it is not what we now have--something is better than
nothing.
But we have been put in this situation unnecessarily by
misrepresentations and a public that has not been informed. It is not
their fault. We have not been able to because so much of this has been
classified. Now, much of it is. Our adversaries, the terrorist groups,
know a lot about the program they did not know about before. Thanks to
Edward Snowden and thanks to some misrepresentations, we are left with
the devil's bargain, and that is to choose the best of the worst.
We will talk this through today. We will have a vote tomorrow. In my
mind, it is absolutely essential that the modifications that are being
made, that are being presented--I will not go into depth about those.
It has already been talked about here. It is essential that those be
passed by this body. It is, of course, essential that the House accept
them. I know a lot of negotiation has gone on back and forth, and it
will continue. But it is the only way to keep a program in place. Even
as degraded as it is, even as compromised as it is, it is the only way
to keep a program in place.
So I will be supporting those tweaks, those changes, even though I
think they are far short of what we need to do to fix the issue that
was rushed through the House without much deliberation. But to make it
stronger, to put it in a better position, I will support those. If
those amendments can be passed, then I will reluctantly choose to vote
for something that is better than nothing, as degraded as it is, in
order to keep this program as one of the essential tools--one of many--
as we collect information, keep that in place.
I know my colleague from Ohio has been seeking the floor for some
time. I apologize for taking too long.
I yield the floor.
The PRESIDING OFFICER. The Senator from Ohio.
Mr. BROWN. Madam President, I ask unanimous consent that following my
remarks, Senator Blumenthal be recognized.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. BROWN. Madam President, I ask unanimous consent to speak as in
morning business.
The PRESIDING OFFICER. Without objection, it is so ordered.
[...]
The PRESIDING OFFICER (Mr. Coats). The Senator from Connecticut.
Mr. BLUMENTHAL. Mr. President, I feel my speaking at this moment is
appropriate because much of what I have to say follows logically from
the last words of the Presiding Officer when he spoke recently on the
USA FREEDOM Act because I agree with the Presiding Officer when he said
we need a bill. We need to move forward and approve reforms and changes
in the law that are contained in the USA FREEDOM Act. We may be in
disagreement about some of the specifics. We may be in contention about
the extent of the changes made. But there is a general consensus that
this decade-and-a-half old law is in some need of revision.
The USA FREEDOM Act contains many important and genuinely worthwhile
changes in the rules that will apply as the United States helps to
protect our security but also to safeguard and preserve essential
rights and liberties. That is the balance which needs to be struck. It
is a difficult balance in a democracy, one of the most difficult in an
area where secrecy has to be maintained because surveillance is more
useful if it is done in secret, but at the same time, rights need to be
protected in an open society that prides itself on transparent and
accessible courts.
Changes in the rules are welcome, such as the end to the present
system of bulk collection of phone data. We may disagree on that point.
Changes in the rules that I support may not be supported by many of my
colleagues. I believe the USA FREEDOM Act goes in the right direction
on bulk collection of phone data by ending the current practice in its
present form.
What brings me to the floor is not so much a discussion about the
rules as the method of enforcing those rules and implementing and
assuring that they are faithfully executed, which is the role and the
responsibility of the Foreign Intelligence Surveillance Court in the
first instance. There are means of appeal from that court, but, as with
many courts in our system, that one is likely to be the end destination
on most issues, particularly since it operates in secret.
The USA FREEDOM Act goes in the right direction by making it more
transparent and requiring the disclosure of significant decisions and
opinions when it is appropriate to do so and under circumstances that
in no way should involve compromising our national security--striking,
again, a good balance.
But this Court, we have to recognize, is an anomaly in an open,
democratic system. Its secrecy makes it an anomaly. It works in secret,
it hears arguments in secret, and it issues opinions in secret. Its
decisions are almost never reviewable. It is, unlike most of our
institutions, opaque and unaccountable--understandably so because it
deals with classified, sensitive information, protecting our national
security against threats that cannot be disclosed when they are
thwarted in many instances. The success of actions resulting from the
FISA Court are most valuable when they are known to most American
people.
So this court is special. It is different. But let's not forget that
if we were to say to the Founders of this country that there will be a
court that works in secret, has hearings in secret, issues opinions
that are kept secret, and its decisions will have sweeping consequences
in constitutional rights and liberties, they would say: That sounds a
lot like the courts that were abhorrent to us, so much so that we
rebelled against the Crown, who said in the Star Chamber, in courts
that England had at the time, that there was no need for two sides to
be represented or for openness. Secret, one-sided courts were one of
the reasons we rebelled. Men and women laid their lives on the line.
They lost their homes, treasures, families, and paid a price for open
and democratic institutions.
So we should be careful about this anomalous court. It may be
necessary, but we should try to make it work better, and we have.
Transparency in the issuance of opinions is very much a step in the
right direction where the issues are significant and the transparency
of those decisions is consistent with our security at the moment. There
may be a delay, but we should remember that the bulk collection of
phone data, which the U.S. Court of Appeals for the Second Circuit said
was illegal, persisted for so many years because the decision itself
was never made known to the American people.
There is another reform that I think is equally if not more
significant. Courts that are secret and one-sided are likely to be less
accessible not only because they are secret but because they are one-
sided. So as a part of this reform, I have worked hard and proposed, in
fact, for the first time a bill that would create an adversarial
process--two sides represented before the court.
A bill that I sponsored in 2013 to reform the Foreign Intelligence
Surveillance Court was joined by 18 cosponsors. I thanked them for
their support, both sides of the aisle. The basic structures that I
proposed are reflected in the USA FREEDOM Act today.
Colleagues worked with me--and have since--on formulating that bill
and in arriving at this moment where the central goals would be
accomplished by section 401 of the USA FREEDOM Act, which provides for
the appointment of individuals to serve as amicus curiae--friends of
the court--in cases involving a novel or significant interpretation of
the law.
That provision would be egregiously undercut--in fact, gutted--by
McConnell amendment No. 1451 because it would prevent these lawyers--
the amicus curiae who would be selected by the court--from obtaining
the information and taking the actions they need to advance and protect
the strongest and most accurate legal arguments, and that is really
eviscerating the effectiveness of this provision as a protection. It is
a protection of our rights and liberties because these amicus curiae
would be public advocates protecting public constitutional rights, and
they would help safeguard essential liberties not just for the
individuals who might be subjects of surveillance, whether it be by
wiretap or by other means, but for all of us, because the Foreign
Intelligence Surveillance Court is a court. Its decisions have the
force of law. Its members are article III judges selected to be on that
court, sworn to uphold the law, both constitutional law and statutory
law.
So this provision, in my view, is fundamental to the court as a
matter of concept and constitutional integrity. That integrity is
important because it is a court, but it is also important to the trust
and confidence the people have in this institution.
I was a law clerk to the U.S. Supreme Court--specifically to Justice
Blackmun--and I well recall one of the Justices saying to me: You know,
we don't have armies; we don't have police forces; we don't have even
the ability to hold press conferences. What we have is our credibility
and the trust and confidence of the American people.
That is so fundamental to the courts of this Nation that consist of
judges appointed for life, without any real direct accountability, as
we can be held to through the election process.
The Foreign Intelligence Surveillance Court has taken a hit in public
[[Page S3397]]
trust and confidence. There is a question about whether the American
people will continue to have trust and confidence and whether that
sense of legitimacy and credibility will continue. The best way to
ensure it is, is to make the court's process as effective as possible
not just in the way it operates but in the way it is seen and perceived
to operate, the way the American people know it should operate, and the
way they can be assured that their rights are protected before the
court by an advocate, an amicus curiae who will protect those rights of
privacy and liberty that are integral to our Constitution--and the
reason why the Founders rebelled against the English.
But there is another reason an advocate presenting the side opposing
the government is important to the Foreign Intelligence Surveillance
Court; that is, everybody makes better decisions when they hear both
sides of the argument. Judges testified at our hearings in the
Judiciary Committee about the importance of hearing both sides of the
argument, whether it is a routine contract case or a criminal trial--
where, by the way, often a judge's worst nightmare is to have the
defendant represent himself because the judge is deprived, and so is
the jury, of an effective argument on the other side of the government.
And so, too, here we were told again and again and again by the
judicial officers who testified before our committee--and I have heard
it again and again and again as I have litigated over the last 40
years--that judges and courts work best when they hear both sides.
I have no doubt the judges of the FISA Court believe as strongly in
constitutional rights and implementation of the Constitution as anyone
in this body, including myself. I have no doubt government litigators
who appear before the court representing the intelligence agencies
seeking warrants or other actions and approval by the court have a
commitment no less than anybody in the United States Senate, including
myself, to those essential values and ideals. But courts are
contentious. They are places where people argue, where sides--different
sides--are represented with different views of complex questions, and
these issues before the court are extraordinarily complex. They also
involve technology that is fast changing and often difficult to explain
and comprehend and is easily minimized in the consequences that may
flow from approval of them.
So the USA FREEDOM Act would provide for, in effect, a panel of
advocates and experts with proper security clearances that the court
can call upon to give independent, informed opinions and advocacy in
cases involving a novel or significant interpretation of law, not in
every case, not every argument but where there is, for example, the
issue of whether the statute authorizes the bulk collection of phone
records.
I tend to think the outcome would have been different in that case if
the court had been given the opposing side of the argument, the
argument that eventually prevailed in the U.S. Court of Appeals for the
Second Circuit by a unanimous bench.
So the court really deserves this expertise. It deserves the other
side and it deserves to hear both sides of the argument. Just to
clarify, those two sides of the argument should not be in any way given
so as to detract from the time necessary. If it is an urgency, the
warrant should be issued and the arguments heard later, just as they
are in criminal court. When there is an exigency of time--and I have
done it myself as a prosecutor--the government's lawyer should go to
the judge, be given approval for whatever is necessary to protect the
public or gain access to records that may be destroyed or otherwise
safeguard security, public safety, and that should be the rule here
too.
Now, in the normal criminal setting, at some point, a significant
issue of law is going to be litigated if the evidence is ever used, and
that is the basic principle here too. If there is a novel or
significant issue of law, it should be litigated at some point, and
that is where the amicus curiae would be involved. Security clearance
is essential, timing is important, and there should be no compromise to
our national security in the court hearing the argument that the
advocate may present on the other side. It can only make for better
decisions. In fact, it will benefit all of our rights.
These provisions were written in consultation with the Department of
Justice attorneys who advocate before the FISA Court. They are
supported by the Attorney General and the National Director of
Intelligence. They reflect the balance and compromise that appear
throughout the USA FREEDOM Act. Amendment No. 1451 would upset this
balance. It would strike the current provisions providing for the
appointment of a panel of amicus curiae--the provisions that represent
a carefully crafted balance--and it would compromise those provisions
in a way that need not be done because this balance has the support of
numerous stakeholders, from civil liberties groups to the intelligence
community, and it would replace this balance, this institution, with an
ineffective, far less valuable advocate.
There is no need to water down and undercut and eviscerate the role
of the independent experts by removing requirements for the court to
appoint a panel of experts to be on call, for the experts to receive
briefings on relevant issues, and significantly to provide those
experts with access to relevant information. Those provisions are
unnecessary and unwise and, therefore, I oppose strongly amendment No.
1451 because it does unnecessarily and unwisely weaken the role of
these experts and amicus curiae.
Equally important, amendment No. 1451 would limit access and
significantly restrict the experts in their going to legal precedents,
petitions, motions or other materials that are crucial to making a
well-reasoned argument. It would restrict their access unnecessarily
and unwisely; thereby, endangering those rights and liberties the
public advocates are there to protect. It would also restrict their
ability to consult with one another and share insights they may have
gained from related cases as government attorneys are currently able to
do.
By undercutting these essential abilities and authorities, this
amendment would hamstring any independence, both in reality and in
perception; thereby, also undercutting the trust and confidence this
act is designed to bolster and sustain.
In short, I know many people of good conscience may disagree over the
best way to reform this law. I accept and I welcome that fact. I
welcome also my colleagues' recognition that an amicus curiae procedure
in some form would benefit this court, but I urge my colleagues to
reject an amendment that would lessen its constructive and beneficial
impact.
We have already delayed long enough. This amendment would not only
weaken the bill, it would exacerbate the delay by sending this bill
back to the House. We all want to avoid a very potentially troubling
delay in approving this measure. I have been dismayed by the divisions
and delays that have prevented us from finally approving the USA
FREEDOM Act before the existing law expires. We should move now. We
should act decisively. We should adopt the USA FREEDOM Act without
amendment No. 1451, which would simply further erode the trust and
confidence, the legitimacy, and credibility of the Foreign Intelligence
Surveillance Court.
I urge my colleagues to join me in voting against this amendment,
passing the USA FREEDOM Act in its current form, avoiding the delay of
sending it back to the House and then potentially having it come back
to the Senate, so we can tell the American people we are protecting the
strongest, greatest country in the history of the world from some of
the most pernicious and perilous terrorist forces ever in the world's
history.
Mr. President, I yield the floor.
I suggest the absence of a quorum.
[...]
_________________________
[Congressional Record Volume 161, Number 86 (Monday, June 1, 2015)]
[Senate]
[Pages S3408-S3417]
TEXT OF AMENDMENTS
SA 1454. Mr. WYDEN (for himself and Mr. Paul) submitted an amendment
intended to be proposed by him to the bill H.R. 2048, to reform the
authorities of the Federal Government to require the production of
certain business records, conduct electronic surveillance, use pen
registers and trap and trace devices, and use other forms of
information gathering for foreign intelligence, counterterrorism, and
criminal purposes, and for other purposes; which was ordered to lie on
the table; as follows:
At the appropriate place, insert the following:
SEC. __. PROHIBITION ON DATA SECURITY VULNERABILITY MANDATES.
(a) In General.--Except as provided in subsection (b), no
agency may mandate that a manufacturer, developer, or seller
of covered products design or alter the security functions in
its product or service to allow the surveillance of any user
of such product or service, or to allow the physical search
of such product, by any agency.
(b) Exception.--Subsection (a) shall not apply to mandates
authorized under the Communications Assistance for Law
Enforcement Act (47 U.S.C. 1001 et seq.).
(c) Definitions.--In this section--
(1) the term ``agency'' has the meaning given the term in
section 3502 of title 44, United States Code; and
(2) the term ``covered product'' means any computer
hardware, computer software, or electronic device that is
made available to the general public.
______
SA 1455. Mr. WYDEN (for himself and Mr. Paul) submitted an amendment
intended to be proposed by him to the bill H.R. 2048, to reform the
authorities of the Federal Government to require the production of
certain business records, conduct electronic surveillance, use pen
registers and trap and trace devices, and use other forms of
information gathering for foreign intelligence, counterterrorism, and
criminal purposes, and for other purposes; which was ordered to lie on
the table; as follows:
At the appropriate place, insert the following:
SEC. ___. CLARIFICATION ON PROHIBITION ON SEARCHING OF
COLLECTIONS OF COMMUNICATIONS TO CONDUCT
WARRANTLESS SEARCHES FOR THE COMMUNICATIONS OF
UNITED STATES PERSONS.
Section 702(b) of the Foreign Intelligence Surveillance Act
of 1978 (50 U.S.C. 1881a(b)) is amended--
(1) by redesignating paragraphs (1) through (5) as
subparagraphs (A) through (E), respectively, and indenting
such subparagraphs, as so redesignated, an additional two ems
from the left margin;
(2) by striking ``An acquisition'' and inserting the
following:
``(1) In general.--An acquisition''; and
(3) by adding at the end the following:
``(2) Clarification on prohibition on searching of
collections of communications of united states persons.--
``(A) In general.--Except as provided in subparagraph (B),
no officer or employee of the United States may conduct a
search of a collection of communications acquired under this
section in an effort to find communications of a particular
United States person (other than a corporation).
``(B) Concurrent authorization and exception for emergency
situations.--Subparagraph (A) shall not apply to a search for
communications related to a particular United States person
if--
``(i) such United States person is the subject of an order
or emergency authorization authorizing electronic
surveillance or physical search under section 105, 304, 703,
704, or 705 of this Act, or under title 18, United States
Code, for the effective period of that order;
``(ii) the entity carrying out the search has a reasonable
belief that the life or safety of such United States person
is threatened and the information is sought for the purpose
of assisting that person; or
``(iii) such United States person has consented to the
search.''.
______
SA 1456. Mr. McCAIN submitted an amendment intended to be proposed by
him to the bill H.R. 1735, to authorize appropriations for fiscal year
2016 for military activities of the Department
[[Page S3409]]
of Defense and for military construction, to prescribe military
personnel strengths for such fiscal year, and for other purposes; which
was ordered to lie on the table; as follows:
At the end of subtitle C of title X, add the following:
SEC. __. ADDITIONAL INFORMATION SUPPORTING LONG-RANGE PLANS
FOR CONSTRUCTION OF NAVAL VESSELS.
Section 231(b)(2)(C) of title 10, United States Code, is
amended by inserting ``by ship class in both graphical and
tabular form'' after ``The estimated levels of annual
funding''.
______
SA 1457. Mr. UDALL (for himself and Mr. Wyden) submitted an amendment
intended to be proposed by him to the bill H.R. 2048, to reform the
authorities of the Federal Government to require the production of
certain business records, conduct electronic surveillance, use pen
registers and trap and trace devices, and use other forms of
information gathering for foreign intelligence, counterterrorism, and
criminal purposes, and for other purposes; which was ordered to lie on
the table; as follows:
At the end, add the following:
TITLE IX--PRIVACY AND CIVIL LIBERTIES OVERSIGHT BOARD REFORM
SEC. 901. SHORT TITLES.
This title may be cited as the ``Strengthening Privacy,
Oversight, and Transparency Act'' or the ``SPOT Act''.
SEC. 902. INCLUSION OF FOREIGN INTELLIGENCE ACTIVITIES IN
OVERSIGHT AUTHORITY OF THE PRIVACY AND CIVIL
LIBERTIES OVERSIGHT BOARD.
Section 1061 of the Intelligence Reform and Terrorism
Prevention Act of 2004 (42 U.S.C. 2000ee) is amended by
inserting ``and conduct foreign intelligence activities''
after ``terrorism'' in the following provisions:
(1) Paragraphs (1) and (2) of subsection (c).
(2) Subparagraphs (A) and (B) of subsection (d)(1).
(3) Subparagraphs (A), (B), and (C) of subsection (d)(2).
SEC. 903. SUBMISSION OF WHISTLEBLOWER COMPLAINTS TO THE
PRIVACY AND CIVIL LIBERTIES OVERSIGHT BOARD.
Section 1061 of the Intelligence Reform and Terrorism
Prevention Act of 2004 (42 U.S.C. 2000ee), as amended by
section 902, is further amended--
(1) in subsection (d), by adding at the end the following
new paragraph:
``(5) Whistleblower complaints.--
``(A) Submission to board.--An employee of, or contractor
or detailee to, an element of the intelligence community may
submit to the Board a complaint or information that such
employee, contractor, or detailee believes relates to a
privacy or civil liberties concern.
``(B) Authority of board.--The Board may take such action
as the Board considers appropriate with respect to
investigating a complaint or information submitted under
subparagraph (A) or transmitting such complaint or
information to any other Executive agency or the
congressional intelligence committees.
``(C) Relationship to existing laws.--The authority under
subparagraph (A) of an employee, contractor, or detailee to
submit to the Board a complaint or information shall be in
addition to any other authority under another provision of
law to submit a complaint or information. Any action taken
under any other provision of law by the recipient of a
complaint or information shall not preclude the Board from
taking action relating to the same complaint or information.
``(D) Relationship to actions taken under other laws.--
Nothing in this paragraph shall prevent--
``(i) any individual from submitting a complaint or
information to any authorized recipient of the complaint or
information; or
``(ii) the recipient of a complaint or information from
taking independent action on the complaint or information.'';
and
(2) by adding at the end the following new subsection:
``(n) Definitions.--In this section, the terms
`congressional intelligence committees' and `intelligence
community' have the meaning given such terms in section 3 of
the National Security Act of 1947 (50 U.S.C. 3003).''.
SEC. 904. PRIVACY AND CIVIL LIBERTIES OVERSIGHT BOARD
SUBPOENA POWER.
Section 1061(g) of the Intelligence Reform and Terrorism
Prevention Act of 2004 (42 U.S.C. 2000ee(g)) is amended--
(1) in paragraph (1)(D), by striking ``submit a written
request to the Attorney General of the United States that the
Attorney General'';
(2) by striking paragraph (2); and
(3) by redesignating paragraphs (3) and (4) as paragraphs
(2) and (3), respectively.
SEC. 905. APPOINTMENT OF STAFF OF THE PRIVACY AND CIVIL
LIBERTIES OVERSIGHT BOARD.
Section 1061(j) of the Intelligence Reform and Terrorism
Prevention Act of 2004 (42 U.S.C. 2000ee(j)) is amended--
(1) by redesignating paragraphs (2) and (3) as paragraphs
(3) and (4), respectively; and
(2) by inserting after paragraph (1) the following new
paragraph:
``(2) Appointment in absence of chairman.--If the position
of chairman of the Board is vacant, during the period of the
vacancy the Board, at the direction of the majority of the
members of the Board, may exercise the authority of the
chairman under paragraph (1).''.
SEC. 906. PRIVACY AND CIVIL LIBERTIES OVERSIGHT BOARD.
(a) In General.--Section 1061 of the Intelligence Reform
and Terrorism Prevention Act of 2004 (42 U.S.C. 2000ee), as
amended by sections 902 and 903, is further amended--
(1) in subsection (h)--
(A) in paragraph (1), by inserting ``full-time'' after ``4
additional''; and
(B) in paragraph (4)(B), by striking ``, except that'' and
all that follows through the end and inserting a period;
(2) in subsection (i)(1)--
(A) in subparagraph (A), by striking ``level III of the
Executive Schedule under section 5314'' and inserting ``level
II of the Executive Schedule under section 5313''; and
(B) in subparagraph (B), by striking ``level IV of the
Executive Schedule'' and all that follows through the end and
inserting ``level III of the Executive Schedule under section
5314 of title 5, United States Code.''; and
(3) in subsection (j)(1), by striking ``level V of the
Executive Schedule under section 5316'' and inserting ``level
IV of the Executive Schedule under section 5315''.
(b) Effective Date; Applicability.--
(1) In general.--The amendments made by subsection (a)
shall--
(A) take effect on the date of enactment of this Act; and
(B) except as provided in paragraph (2), apply to any
appointment to a position as a member of the Privacy and
Civil Liberties Oversight Board made on or after the date of
the enactment of this Act.
(2) Exceptions.--
(A) Compensation changes.--The amendments made by
paragraphs (2)(A) and (3) of subsection (a) shall take effect
on the first day of the first pay period beginning after the
date of the enactment of this Act.
(B) Election to serve full time by incumbents.--
(i) In general.--An individual serving as a member of the
Privacy and Civil Liberties Oversight Board on the date of
the enactment of this Act, including a member continuing to
serve as a member under section 1061(h)(4)(B) of the
Intelligence Reform and Terrorism Prevention Act of 2004 (42
U.S.C. 2000ee(h)(4)(B)), (in this subparagraph referred to as
a ``current member'') may make an election to--
(I) serve as a member of the Privacy and Civil Liberties
Oversight Board on a full-time basis and in accordance with
section 1061 of the Intelligence Reform and Terrorism
Prevention Act of 2004 (42 U.S.C. 2000ee), as amended by this
Act; or
(II) serve as a member of the Privacy and Civil Liberties
Oversight Board on a part-time basis in accordance with such
section 1061, as in effect on the day before the date of
enactment of this Act, including the limitation on service
after the expiration of the term of the member under
subsection (h)(4)(B) of such section, as in effect on the day
before the date of the enactment of this Act.
(ii) Election to serve full time.--A current member making
an election under clause (i)(I) shall begin serving as a
member of the Privacy and Civil Liberties Oversight Board on
a full-time basis on the first day of the first pay period
beginning not less than 60 days after the date on which the
current member makes the election.
SEC. 907. PROVISION OF INFORMATION ABOUT GOVERNMENT
ACTIVITIES UNDER THE FOREIGN INTELLIGENCE
SURVEILLANCE ACT OF 1978 TO THE PRIVACY AND
CIVIL LIBERTIES OVERSIGHT BOARD.
The Attorney General should fully inform the Privacy and
Civil Liberties Oversight Board about any activities carried
out by the Government under the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1801 et seq.), including
by providing to the Board--
(1) copies of each detailed report submitted to a committee
of Congress under such Act; and
(2) copies of each decision, order, and opinion of the
Foreign Intelligence Surveillance Court or the Foreign
Intelligence Surveillance Court of Review required to be
included in the report under section 601(a) of such Act (50
U.S.C. 1871(a)).
______
SA 1458. Mr. PAUL (for himself and Mr. Wyden) submitted an amendment
intended to be proposed by him to the bill H.R. 2048, to reform the
authorities of the Federal Government to require the production of
certain business records, conduct electronic surveillance, use pen
registers and trap and trace devices, and use other forms of
information gathering for foreign intelligence, counterterrorism, and
criminal purposes, and for other purposes; which was ordered to lie on
the table; as follows:
At the appropriate place, insert the following:
SEC. __. PROHIBITION ON DATA SECURITY VULNERABILITY MANDATES.
(a) In General.--Except as provided in subsection (b), no
agency may mandate that a manufacturer, developer, or seller
of covered products design or alter the security functions in
its product or service to allow
[[Page S3410]]
the surveillance of any user of such product or service, or
to allow the physical search of such product, by any agency.
(b) Exception.--Subsection (a) shall not apply to mandates
authorized under the Communications Assistance for Law
Enforcement Act (47 U.S.C. 1001 et seq.).
(c) Definitions.--In this section--
(1) the term ``agency'' has the meaning given the term in
section 3502 of title 44, United States Code; and
(2) the term ``covered product'' means any computer
hardware, computer software, or electronic device that is
made available to the general public.
______
SA 1459. Mr. PAUL (for himself and Mr. Wyden) submitted an amendment
intended to be proposed by him to the bill H.R. 2048, to reform the
authorities of the Federal Government to require the production of
certain business records, conduct electronic surveillance, use pen
registers and trap and trace devices, and use other forms of
information gathering for foreign intelligence, counterterrorism, and
criminal purposes, and for other purposes; which was ordered to lie on
the table; as follows:
At the appropriate place, insert the following:
SEC. ___. CLARIFICATION ON PROHIBITION ON SEARCHING OF
COLLECTIONS OF COMMUNICATIONS TO CONDUCT
WARRANTLESS SEARCHES FOR THE COMMUNICATIONS OF
UNITED STATES PERSONS.
Section 702(b) of the Foreign Intelligence Surveillance Act
of 1978 (50 U.S.C. 1881a(b)) is amended--
(1) by redesignating paragraphs (1) through (5) as
subparagraphs (A) through (E), respectively, and indenting
such subparagraphs, as so redesignated, an additional two ems
from the left margin;
(2) by striking ``An acquisition'' and inserting the
following:
``(1) In general.--An acquisition''; and
(3) by adding at the end the following:
``(2) Clarification on prohibition on searching of
collections of communications of united states persons.--
``(A) In general.--Except as provided in subparagraph (B),
no officer or employee of the United States may conduct a
search of a collection of communications acquired under this
section in an effort to find communications of a particular
United States person (other than a corporation).
``(B) Concurrent authorization and exception for emergency
situations.--Subparagraph (A) shall not apply to a search for
communications related to a particular United States person
if--
``(i) such United States person is the subject of an order
or emergency authorization authorizing electronic
surveillance or physical search under section 105, 304, 703,
704, or 705 of this Act, or under title 18, United States
Code, for the effective period of that order;
``(ii) the entity carrying out the search has a reasonable
belief that the life or safety of such United States person
is threatened and the information is sought for the purpose
of assisting that person; or
``(iii) such United States person has consented to the
search.''.
______
SA 1460. Mr. PAUL (for himself and Mr. Wyden) submitted an amendment
intended to be proposed by him to the bill H.R. 2048, to reform the
authorities of the Federal Government to require the production of
certain business records, conduct electronic surveillance, use pen
registers and trap and trace devices, and use other forms of
information gathering for foreign intelligence, counterterrorism, and
criminal purposes, and for other purposes; which was ordered to lie on
the table; as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the
``Intelligence Oversight and Surveillance Reform Act''.
(b) Table of Contents.--The table of contents for this Act
is as follows:
Sec. 1. Short title; table of contents.
TITLE I--ACCESS TO CERTAIN BUSINESS RECORDS FOR FOREIGN INTELLIGENCE
AND INTERNATIONAL TERRORISM INVESTIGATIONS
Sec. 101. End of government bulk collection of business records.
Sec. 102. Emergency authority for access to call data records.
Sec. 103. Challenges to government surveillance.
TITLE II--PRIVACY PROTECTIONS FOR PEN REGISTERS AND TRAP AND TRACE
DEVICES
Sec. 201. Privacy protections for pen registers and trap and trace
devices.
TITLE III--PROCEDURES FOR TARGETING CERTAIN PERSONS OUTSIDE THE UNITED
STATES OTHER THAN UNITED STATES PERSONS
Sec. 301. Clarification on prohibition on searching of collections of
communications to conduct warrantless searches for the
communications of United States persons.
Sec. 302. Protection against collection of wholly domestic
communications not concerning terrorism under FISA
Amendments Act.
Sec. 303. Prohibition on reverse targeting under FISA Amendments Act.
Sec. 304. Limits on use of unlawfully obtained information under FISA
Amendments Act.
Sec. 305. Challenges to Government surveillance.
TITLE IV--FOREIGN INTELLIGENCE SURVEILLANCE COURT REFORMS
Sec. 401. Definitions.
Sec. 402. Office of the Constitutional Advocate.
Sec. 403. Advocacy before the FISA Court.
Sec. 404. Advocacy before the petition review pool.
Sec. 405. Appellate review.
Sec. 406. Disclosure.
Sec. 407. Annual report to Congress.
Sec. 408. Preservation of rights.
TITLE V--NATIONAL SECURITY LETTER REFORMS
Sec. 501. National security letter authority.
Sec. 502. Public reporting on National Security Letters.
TITLE VI--REPORTING FISA ORDERS AND NATIONAL SECURITY LETTERS
Sec. 601. Third-party reporting of FISA orders and National Security
Letters.
Sec. 602. Government reporting of FISA orders.
TITLE VII--OTHER MATTERS
Sec. 701. Privacy and Civil Liberties Oversight Board subpoena
authority.
Sec. 702. Scope of liability protection for providing assistance to the
Government.
TITLE I--ACCESS TO CERTAIN BUSINESS RECORDS FOR FOREIGN INTELLIGENCE
AND INTERNATIONAL TERRORISM INVESTIGATIONS
SEC. 101. END OF GOVERNMENT BULK COLLECTION OF BUSINESS
RECORDS.
(a) Privacy Protections for Section 215 Business Records
Orders.--
(1) In general.--Section 501(b) of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1861(b)) is amended--
(A) in paragraph (1)(B), by striking ``and'' at the end;
(B) in paragraph (2), by striking subparagraphs (A) and (B)
and inserting the following:
``(A) a statement of facts showing that there are
reasonable grounds to believe that the records or other
things sought--
``(i) are relevant to an authorized investigation (other
than a threat assessment) conducted in accordance with
subsection (a)(2) to obtain foreign intelligence information
not concerning a United States person or to protect against
international terrorism or clandestine intelligence
activities; and
``(ii) pertain to--
``(I) a foreign power or an agent of a foreign power;
``(II) the activities of a suspected agent of a foreign
power who is the subject of such authorized investigation; or
``(III) an individual in contact with, or known to, a
suspected agent of a foreign power; and
``(B) a statement of proposed minimization procedures;
and''; and
(C) by adding at the end the following:
``(3) if the applicant is seeking a nondisclosure
requirement described in subsection (d), shall include--
``(A) a statement of specific and articulable facts
providing reason to believe that disclosure of particular
information about the existence or contents of the order
requiring the production of tangible things under this
section during the applicable time period will result in--
``(i) endangering the life or physical safety of any
person;
``(ii) flight from prosecution;
``(iii) destruction of or tampering with evidence;
``(iv) intimidation of potential witnesses;
``(v) interference with diplomatic relations; or
``(vi) otherwise seriously endangering the national
security of the United States by alerting a target, an
associate of a target, or the foreign power of which the
target is an agent, of the interest of the Government in the
target;
``(B) an explanation of how the harm identified under
subparagraph (A) is related to the authorized investigation
to which the tangible things sought are relevant;
``(C) an explanation of how the nondisclosure requirement
is narrowly tailored to address the specific harm identified
under subparagraph (A); and
``(D) the time period during which the Government believes
the nondisclosure requirement should apply.''.
(2) Order.--Section 501(c) of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1861(c)) is amended--
(A) in paragraph (1)--
(i) by striking ``subsections (a) and (b),'' and inserting
``subsection (a) and paragraphs (1) and (2) of subsection (b)
and that the proposed minimization procedures meet the
definition of minimization procedures under subsection
(g),''; and
(ii) by striking the last sentence and inserting the
following: ``If the judge finds that
[[Page S3411]]
the requirements of subsection (b)(3) have been met, such
order shall include a nondisclosure requirement, which may
apply for not longer than 1 year, unless the facts justify a
longer period of nondisclosure, subject to the principles and
procedures described in subsection (d).''; and
(B) in paragraph (2)--
(i) in subparagraph (C), by striking ``(d);'' and inserting
``(d), if applicable;'';
(ii) in subparagraph (D), by striking ``and'' at the end;
(iii) in subparagraph (E), by striking the period at the
end and inserting ``; and''; and
(iv) by adding at the end the following:
``(F) shall direct that the minimization procedures be
followed.''.
(3) Nondisclosure.--Section 501(d) of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1861(d)) is
amended to read as follows:
``(d) Nondisclosure.--
``(1) In general.--No person who receives an order under
subsection (c) that contains a nondisclosure requirement
shall disclose to any person the particular information
specified in the nondisclosure requirement during the time
period to which the requirement applies.
``(2) Exception.--
``(A) Disclosure.--A person who receives an order under
subsection (c) that contains a nondisclosure requirement may
disclose information otherwise subject to any applicable
nondisclosure requirement to--
``(i) those persons to whom disclosure is necessary in
order to comply with an order under this section;
``(ii) an attorney in order to obtain legal advice or
assistance regarding the order; or
``(iii) other persons as permitted by the Director of the
Federal Bureau of Investigation or the designee of the
Director.
``(B) Application.--A person to whom disclosure is made
under subparagraph (A) shall be subject to the nondisclosure
requirements applicable to a person to whom an order is
directed under this section in the same manner as the person
to whom the order is directed.
``(C) Notification.--Any person who discloses to a person
described in subparagraph (A) information otherwise subject
to a nondisclosure requirement shall notify the person of the
applicable nondisclosure requirement.
``(3) Extension.--The Director of the Federal Bureau of
Investigation, or a designee of the Director (whose rank
shall be no lower than Assistant Special Agent in Charge),
may apply for renewals of the prohibition on disclosure of
particular information about the existence or contents of an
order requiring the production of tangible things under this
section for additional periods of not longer than 1 year,
unless the facts justify a longer period of nondisclosure. A
nondisclosure requirement shall be renewed if a court having
jurisdiction under paragraph (4) determines that the
application meets the requirements of subsection (b)(3).
``(4) Jurisdiction.--An application for a renewal under
this subsection shall be made to--
``(A) a judge of the court established under section
103(a); or
``(B) a United States Magistrate Judge under chapter 43 of
title 28, United States Code, who is publicly designated by
the Chief Justice of the United States to have the power to
hear applications and grant orders for the production of
tangible things under this section on behalf of a judge of
the court established under section 103(a).''.
(4) Minimization.--Section 501(g) of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1861(g)) is
amended--
(A) in paragraph (1), by striking ``Not later than'' and
all that follows and inserting ``At or before the end of the
period of time for the production of tangible things under an
order approved under this section or at any time after the
production of tangible things under an order approved under
this section, a judge may assess compliance with the
minimization procedures by reviewing the circumstances under
which information concerning United States persons was
acquired, retained, or disseminated.''; and
(B) in paragraph (2)(A), by inserting ``acquisition and''
after ``to minimize the''.
(b) Judicial Review of Section 215 Orders.--Section
501(f)(2) of the Foreign Intelligence Surveillance Act of
1978 (50 U.S.C. 1861(f)(2)) is amended--
(1) in subparagraph (A)(i)--
(A) by striking ``that order'' and inserting ``such
production order or any nondisclosure order imposed in
connection with such production order''; and
(B) by striking the second sentence;
(2) by striking subparagraph (C) and inserting the
following new subparagraph:
``(C) A judge considering a petition to modify or set aside
a nondisclosure order shall grant such petition unless the
court determines that--
``(i) there is reason to believe that disclosure of the
information subject to the nondisclosure requirement during
the applicable time period will result in--
``(I) endangering the life or physical safety of any
person;
``(II) flight from prosecution;
``(III) destruction of or tampering with evidence;
``(IV) intimidation of potential witnesses;
``(V) interference with diplomatic relations; or
``(VI) otherwise seriously endangering the national
security of the United States by alerting a target, an
associate of a target, or the foreign power of which the
target is an agent, of the interest of the Government in the
target;
``(ii) the harm identified under clause (i) relates to the
authorized investigation to which the tangible things sought
are relevant; and
``(iii) the nondisclosure requirement is narrowly tailored
to address the specific harm identified under clause (i).'';
and
(3) by adding at the end the following new subparagraph:
``(E) If a judge denies a petition to modify or set aside a
nondisclosure order under this paragraph, no person may file
another petition to modify or set aside such nondisclosure
order until the date that is one year after the date on which
such judge issues the denial of such petition.''.
SEC. 102. EMERGENCY AUTHORITY FOR ACCESS TO CALL DATA
RECORDS.
(a) In General.--Section 403 of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1843) is amended by
adding at the end the following:
``(e)(1) Notwithstanding any other provision of this
subsection, the Attorney General may require the production
of call data records by the provider of a wire or electronic
communication service on an emergency basis if--
``(A) such records--
``(i) are relevant to an authorized investigation (other
than a threat assessment) conducted in accordance with
section 402 or 501, as appropriate, to obtain foreign
intelligence information not concerning a United States
person or to protect against international terrorism or
clandestine intelligence activities; and
``(ii) pertain to--
``(I) a foreign power or an agent of a foreign power;
``(II) the activities of a suspected agent of a foreign
power who is the subject of such authorized investigation; or
``(III) an individual in contact with, or known to, a
suspected agent of a foreign power;
``(B) the Attorney General reasonably determines--
``(i) an emergency requires the production of such records
before an order requiring such production can with due
diligence be obtained under section 402 or 501, as
appropriate; and
``(ii) the factual basis for issuance of an order under
section 402 or 501, as appropriate, to require the production
of such records exists;
``(C) a judge referred to in section 402(b) or 501(b)(1),
as appropriate, is informed by the Attorney General at the
time of the required production of such records that the
decision has been made to require such production on an
emergency basis; and
``(D) an application in accordance with section 402 or 501,
as appropriate, is made to such judge as soon as practicable,
but not more than 7 days after the date on which the Attorney
General requires the production of such records under this
subsection.
``(2)(A) In the absence of an order issued under section
402 or 501, as appropriate, to approve the emergency required
production of call data records under paragraph (1), the
authority to require the production of such records shall
terminate at the earlier of--
``(i) when the information sought is obtained;
``(ii) when the application for the order is denied under
section 402 or 501, as appropriate; or
``(iii) 7 days after the time of the authorization by the
Attorney General.
``(B) If an application for an order applied for under
section 402 or 501, as appropriate, for the production of
call data records required to be produced pursuant to
paragraph (1) is denied, or in any other case where the
emergency production of call data records under this section
is terminated and no order under section 402 or 501, as
appropriate, is issued approving the required production of
such records, no information obtained or evidence derived
from such records shall be received in evidence or otherwise
disclosed in any trial, hearing, or other proceeding in or
before any court, grand jury, department, office, agency,
regulatory body, legislative committee, or other authority of
the United States, a State, or political subdivision thereof,
and no information concerning any United States person
acquired from such records shall subsequently be used or
disclosed in any other manner by Federal officers or
employees without the consent of such person, except with the
approval of the Attorney General if the information indicates
a threat of death or serious bodily harm to any person.''.
(b) Termination of Section 501 References.--On the date
that section 102(b)(1) of the USA PATRIOT Improvement and
Reauthorization Act of 2005 (Public Law 109-177; 50 U.S.C.
1805 note) takes effect, subsection (e) of section 403 of the
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1843), as added by paragraph (1), is amended--
(1) by striking ``or section 501, as appropriate,'' each
place that term appears;
(2) in paragraph (1)--
(A) in subparagraph (B), by striking ``or 501, as
appropriate;'' and by inserting a semicolon; and
(B) in subparagraph (C), by striking ``or 501(b)(1), as
appropriate,''; and
(3) in paragraph (2)(A)(ii), by striking ``or 501, as
appropriate;'' and by inserting a semicolon.
[[Page S3412]]
SEC. 103. CHALLENGES TO GOVERNMENT SURVEILLANCE.
(a) In General.--Title V of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1861 et seq.) is amended
by adding at the end the following:
``SEC. 503. CHALLENGES TO ORDERS TO PRODUCE CERTAIN BUSINESS
RECORDS.
``(a) Appeal.--
``(1) In general.--A person who is required to produce any
tangible thing pursuant to an order issued under section 501
may appeal the order to a United States court of appeals on
the basis that the order violates the Constitution of the
United States.
``(2) Venue.--An appeal filed pursuant to paragraph (1) may
be filed--
``(A) in the United States court of appeals for a circuit
embracing a judicial district in which venue would be proper
for a civil action under section 1391 of title 28, United
States Code; or
``(B) United States Court of Appeals for the District of
Columbia.
``(b) Supreme Court Review.--A person may seek a writ of
certiorari from the Supreme Court of the United States for
review of a decision of an appeal filed under subsection
(a)(1).''.
(b) Table of Contents Amendment.--The table of contents in
the first section of the Foreign Intelligence Surveillance
Act of 1978 is amended by adding after the item relating to
section 502 the following:
``Sec. 503. Challenges to orders to produce certain business
records.''.
TITLE II--PRIVACY PROTECTIONS FOR PEN REGISTERS AND TRAP AND TRACE
DEVICES
SEC. 201. PRIVACY PROTECTIONS FOR PEN REGISTERS AND TRAP AND
TRACE DEVICES.
(a) Application.--Section 402(c) of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1842(c)) is
amended--
(1) in paragraph (1), by striking ``and'' at the end; and
(2) by striking paragraph (2) and inserting the following
new paragraphs:
``(2) a statement of facts showing that there are
reasonable grounds to believe that the records sought--
``(A) are relevant to an authorized investigation to obtain
foreign intelligence information not concerning a United
States person or to protect against international terrorism
or clandestine intelligence activities (other than a threat
assessment), provided that such investigation of a United
States person is not conducted solely upon the basis of
activities protected by the first amendment to the
Constitution; and
``(B) pertain to--
``(i) a foreign power or an agent of a foreign power;
``(ii) the activities of a suspected agent of a foreign
power who is the subject of such authorized investigation; or
``(iii) an individual in contact with, or known to, a
suspected agent of a foreign power; and
``(3) a statement of proposed minimization procedures.''.
(b) Minimization.--
(1) Definition.--Section 401 of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1841) is amended by
adding at the end the following:
``(4) The term `minimization procedures' means--
``(A) specific procedures that are reasonably designed in
light of the purpose and technique of an order for the
installation and use of a pen register or trap and trace
device, to minimize the acquisition and retention, and
prohibit the dissemination, of nonpublicly available
information concerning unconsenting United States persons
consistent with the need of the United States to obtain,
produce, and disseminate foreign intelligence information;
``(B) procedures that require that nonpublicly available
information, which is not foreign intelligence information,
as defined in section 101(e)(1), shall not be disseminated in
a manner that identifies any United States person, without
such person's consent, unless such person's identity is
necessary to understand foreign intelligence information or
assess its importance; and
``(C) notwithstanding subparagraphs (A) and (B), procedures
that allow for the retention and dissemination of information
that is evidence of a crime which has been, is being, or is
about to be committed and that is to be retained or
disseminated for law enforcement purposes.''.
(2) Pen registers and trap and trace devices.--Section 402
of the Foreign Intelligence Surveillance Act of 1978 (50
U.S.C. 1842) is amended--
(A) in subsection (d)--
(i) in paragraph (1), by inserting ``, and that the
proposed minimization procedures meet the definition of
minimization procedures under this title'' before the period
at the end; and
(ii) in paragraph (2)(B)--
(I) in clause (ii)(II), by striking ``and'' after the
semicolon; and
(II) by adding at the end the following:
``(iv) the minimization procedures be followed; and''; and
(B) by adding at the end the following:
``(h) At or before the end of the period of time for which
the installation and use of a pen register or trap and trace
device is approved under an order or an extension under this
section, the judge may assess compliance with the
minimization procedures by reviewing the circumstances under
which information concerning United States persons was
acquired, retained, or disseminated.''.
(3) Emergencies.--Section 403 of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1843), as amended by
section 102(a), is further amended--
(A) by redesignating subsection (c) as (d); and
(B) by inserting after subsection (b) the following:
``(c) If the Attorney General authorizes the emergency
installation and use of a pen register or trap and trace
device under this section, the Attorney General shall require
that minimization procedures required by this title for the
issuance of a judicial order be followed.''.
(4) Use of information.--Section 405(a)(1) of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1845(a)(1))
is amended by striking the period at the end and inserting
``and the minimization procedures required under the order
approving such pen register or trap and trace device.''.
TITLE III--PROCEDURES FOR TARGETING CERTAIN PERSONS OUTSIDE THE UNITED
STATES OTHER THAN UNITED STATES PERSONS
SEC. 301. CLARIFICATION ON PROHIBITION ON SEARCHING OF
COLLECTIONS OF COMMUNICATIONS TO CONDUCT
WARRANTLESS SEARCHES FOR THE COMMUNICATIONS OF
UNITED STATES PERSONS.
Section 702(b) of the Foreign Intelligence Surveillance Act
of 1978 (50 U.S.C. 1881a(b)) is amended--
(1) by redesignating paragraphs (1) through (5) as
subparagraphs (A) through (E), respectively, and indenting
such subparagraphs, as so redesignated, an additional two ems
from the left margin;
(2) by striking ``An acquisition'' and inserting the
following:
``(1) In general.--An acquisition''; and
(3) by adding at the end the following:
``(2) Clarification on prohibition on searching of
collections of communications of united states persons.--
``(A) In general.--Except as provided in subparagraph (B),
no officer or employee of the United States may conduct a
search of a collection of communications acquired under this
section in an effort to find communications of a particular
United States person (other than a corporation).
``(B) Concurrent authorization and exception for emergency
situations.--Subparagraph (A) shall not apply to a search for
communications related to a particular United States person
if--
``(i) such United States person is the subject of an order
or emergency authorization authorizing electronic
surveillance or physical search under section 105, 304, 703,
704, or 705 of this Act, or under title 18, United States
Code, for the effective period of that order;
``(ii) the entity carrying out the search has a reasonable
belief that the life or safety of such United States person
is threatened and the information is sought for the purpose
of assisting that person; or
``(iii) such United States person has consented to the
search.''.
SEC. 302. PROTECTION AGAINST COLLECTION OF WHOLLY DOMESTIC
COMMUNICATIONS NOT CONCERNING TERRORISM UNDER
FISA AMENDMENTS ACT.
(a) In General.--Section 702 of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1881a) is amended--
(1) in subsection (d)(1)--
(A) in subparagraph (A), by striking ``and'' at the end;
(B) in subparagraph (B), by striking the period at the end
and inserting ``; and''; and
(C) by adding at the end the following new subparagraph:
``(C) limit the acquisition of the contents of any
communication to communications to which any party is a
target of the acquisition or communications that refer to the
target of the acquisition, if such communications are
acquired to protect against international terrorism.''; and
(2) in subsection (i)(2)(B)--
(A) in clause (i), by striking ``and'' at the end;
(B) in clause (ii), by striking the period at the end and
inserting ``; and''; and
(C) by adding at the end the following new clause:
``(iii) limit the acquisition of the contents of any
communication to communications to which any party is a
target of the acquisition or communications that refer to the
target of the acquisition, if such communications are
acquired to protect against international terrorism.''.
(b) Conforming Amendment.--Section 701(a) of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1881(a)) is
amended by inserting `` `international terrorism','' after ``
`foreign power',''.
SEC. 303. PROHIBITION ON REVERSE TARGETING UNDER FISA
AMENDMENTS ACT.
Section 702 of the Foreign Intelligence Surveillance Act of
1978 (50 U.S.C. 1881a), as amended by sections 301 and 302 of
this Act, is further amended--
(1) in paragraph (1)(B) of subsection (b), as redesignated
by section 301, by striking ``the purpose'' and inserting ``a
significant purpose'';
(2) in subsection (d)(1)(A)--
(A) by striking ``ensure that'' and inserting the
following: ``ensure--
``(i) that''; and
[[Page S3413]]
(B) by adding at the end the following:
``(ii) that an application is filed under title I, if
otherwise required, when a significant purpose of an
acquisition authorized under subsection (a) is to acquire the
communications of a particular, known person reasonably
believed to be located in the United States; and'';
(3) in subsection (g)(2)(A)(i)(I)--
(A) by striking ``ensure that'' and inserting the
following: ``ensure--
``(aa) that''; and
(B) by adding at the end the following:
``(bb) that an application is filed under title I, if
otherwise required, when a significant purpose of an
acquisition authorized under subsection (a) is to acquire the
communications of a particular, known person reasonably
believed to be located in the United States; and''; and
(4) in subsection (i)(2)(B)(i)--
(A) by striking ``ensure that'' and inserting the
following: ``ensure--
``(I) that''; and
(B) by adding at the end the following:
``(II) that an application is filed under title I, if
otherwise required, when a significant purpose of an
acquisition authorized under subsection (a) is to acquire the
communications of a particular, known person reasonably
believed to be located in the United States; and''.
SEC. 304. LIMITS ON USE OF UNLAWFULLY OBTAINED INFORMATION
UNDER FISA AMENDMENTS ACT.
Section 702(i)(3) of the Foreign Intelligence Surveillance
Act of 1978 (50 U.S.C. 1881a(i)(3)) is amended by striking
subparagraph (B) and inserting the following:
``(B) Correction of deficiencies.--
``(i) In general.--If the Court finds that a certification
required by subsection (g) does not contain all of the
required elements, or that the procedures required by
subsections (d) and (e) are not consistent with the
requirements of those subsections or the fourth amendment to
the Constitution of the United States, the Court shall issue
an order directing the Government to, at the Government's
election and to the extent required by the order of the
Court--
``(I) correct any deficiency identified by the order of the
Court not later than 30 days after the date on which the
Court issues the order; or
``(II) cease, or not begin, the implementation of the
authorization for which such certification was submitted.
``(ii) Limitation on use of information.--
``(I) In general.--Except as provided in subclause (II), no
information obtained or evidence derived from an acquisition
pursuant to a certification or targeting or minimization
procedures subject to an order under clause (i) concerning
any United States person shall be received in evidence or
otherwise disclosed in any trial, hearing, or other
proceeding in or before any court, grand jury, department,
office, agency, regulatory body, legislative committee, or
other authority of the United States, a State, or political
subdivision thereof, and no information concerning any United
States person acquired from the acquisition shall
subsequently be used or disclosed in any other manner by
Federal officers or employees without the consent of the
United States person, except with the approval of the
Attorney General if the information indicates a threat of
death or serious bodily harm to any person.
``(II) Exception.--If the Government corrects any
deficiency identified by the order of the Court under clause
(i), the Court may permit the use or disclosure of
information acquired before the date of the correction under
such minimization procedures as the Court shall establish for
purposes of this clause.''.
SEC. 305. CHALLENGES TO GOVERNMENT SURVEILLANCE.
Section 702 of the Foreign Intelligence Surveillance Act of
1978 (50 U.S.C. 1881a), as amended by this title, is further
amended by adding at the end the following new subsection:
``(m) Challenges to Government Surveillance.--
``(1) Injury in fact.--In any claim in a civil action
brought in a court of the United States relating to
surveillance conducted under this section, the person
asserting the claim has suffered an injury in fact if the
person--
``(A) has a reasonable basis to believe that the person's
communications will be acquired under this section; and
``(B) has taken objectively reasonable steps to avoid
surveillance under this section.
``(2) Reasonable basis.--A person shall be presumed to have
demonstrated a reasonable basis to believe that the
communications of the person will be acquired under this
section if the profession of the person requires the person
regularly to communicate foreign intelligence information
with persons who--
``(A) are not United States persons; and
``(B) are located outside the United States.
``(3) Objective steps.--A person shall be presumed to have
taken objectively reasonable steps to avoid surveillance
under this section if the person demonstrates that the steps
were taken in reasonable response to rules of professional
conduct or analogous professional rules.''.
TITLE IV--FOREIGN INTELLIGENCE SURVEILLANCE COURT REFORMS
SEC. 401. DEFINITIONS.
In this title:
(1) Constitutional advocate.--The term ``Constitutional
Advocate'' means the Constitutional Advocate appointed under
section 402(b).
(2) Decision.--The term ``decision'' means a decision,
order, or opinion issued by the FISA Court or the FISA Court
of Review.
(3) FISA.--The term ``FISA'' means the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1801 et seq.).
(4) FISA court.--The term ``FISA Court'' means the court
established under section 103(a) of FISA (50 U.S.C. 1803(a)).
(5) FISA court of review.--The term ``FISA Court of
Review'' means the court of review established under section
103(b) of FISA (50 U.S.C. 1803(b)).
(6) Office.--The term ``Office'' means the Office of the
Constitutional Advocate established under section 402(a).
(7) Petition review pool.--The term ``petition review
pool'' means the petition review pool established by section
103(e) of FISA (50 U.S.C. 1803(e)) or any member of that
pool.
(8) Significant construction or interpretation of law.--The
term ``significant construction or interpretation of law''
means a significant construction or interpretation of a
provision, as that term is construed under section 601(c) of
FISA (50 U.S.C. 1871(c)).
SEC. 402. OFFICE OF THE CONSTITUTIONAL ADVOCATE.
(a) Establishment.--There is established within the
judicial branch of the United States an Office of the
Constitutional Advocate.
(b) Constitutional Advocate.--
(1) In general.--The head of the Office is the
Constitutional Advocate.
(2) Appointment and term.--
(A) Appointment.--The Chief Justice of the United States
shall appoint the Constitutional Advocate from the list of
candidates submitted under subparagraph (B).
(B) Candidates.--
(i) List of candidates.--The Privacy and Civil Liberties
Oversight Board shall submit to the Chief Justice a list of
not less than 5 qualified candidates to serve as a
Constitutional Advocate.
(ii) Selection of candidates.--In preparing a list
described in clause (i), the Privacy and Civil Liberties
Oversight Board shall select candidates the Board believes
will be zealous and effective advocates in defense of civil
liberties and consider each potential candidate's--
(I) litigation and other professional experience;
(II) experience with the areas of law the Constitutional
Advocate is likely to encounter in the course of the
Advocate's duties; and
(III) demonstrated commitment to civil liberties.
(C) Security clearance.--An individual may be appointed
Constitutional Advocate without regard to whether the
individual possesses a security clearance on the date of the
appointment.
(D) Term and dismissal.--A Constitutional Advocate shall be
appointed for a term of 3 years and may be fired only for
good cause shown, including the demonstrated inability to
qualify for an adequate security clearance.
(E) Reappointment.--There shall be no limit to the number
of consecutive terms served by a Constitutional Advocate. The
reappointment of a Constitutional Advocate shall be made in
the same manner as appointment of a Constitutional Advocate.
(F) Acting constitutional advocate.--If the position of
Constitutional Advocate is vacant, the Chief Justice may
appoint an Acting Constitutional Advocate from among the
qualified employees of the Office. If there are no such
qualified employees, the Chief Justice may appoint an Acting
Constitutional Advocate from the most recent list of
candidates provided by the Privacy and Civil Liberties
Oversight Board pursuant to subparagraph (B). The Acting
Constitutional Advocate shall have all of the powers of a
Constitutional Advocate and shall serve until a
Constitutional Advocate is appointed.
(3) Employees.--The Constitutional Advocate is authorized,
without regard to the civil service laws and regulations, to
appoint and terminate employees of the Office.
(c) Security Clearances.--The appropriate departments,
agencies, and elements of the executive branch shall
cooperate with the Office, to the extent possible under
existing procedures and requirements, to expeditiously
provide the Constitutional Advocate and appropriate employees
of the Office with the security clearances necessary to carry
out the duties of the Constitutional Advocate.
(d) Duties and Authorities of the Constitutional
Advocate.--
(1) In general.--The Constitutional Advocate--
(A) shall review each application to the FISA Court by the
Attorney General;
(B) shall review each decision of the FISA Court, the
petition review pool, or the FISA Court of Review issued
after the date of the enactment of this Act and all documents
and other material relevant to such decision in a complete,
unredacted form;
(C) may participate in a proceeding before the petition
review pool if such participation is requested by a party in
such a proceeding or by the petition review pool;
(D) shall consider any request from a provider who has been
served with an order, certification, or directive compelling
the provider to provide assistance to the Government or to
release customer information to assist that provider in a
proceeding before
[[Page S3414]]
the FISA Court or the petition review pool, including a
request--
(i) to oppose the Government on behalf of the private party
in such a proceeding; or
(ii) to provide guidance to the private party if the
private party is considering compliance with an order of the
FISA Court;
(E) shall participate in a proceeding before the FISA Court
if appointed to participate by the FISA Court under section
403(a) and may participate in a proceeding before the
petition review pool if authorized under section 404(a);
(F) may request to participate in a proceeding before the
FISA Court or the petition review pool;
(G) shall participate in such a proceeding if such request
is granted;
(H) may request reconsideration of a decision of the FISA
Court under section 403(b);
(I) may appeal or seek review of a decision of the FISA
Court, the petition review pool, or the FISA Court of Review,
as permitted by this title; and
(J) shall participate in such appeal or review.
(2) Advocacy.--The Constitutional Advocate shall protect
individual rights by vigorously advocating before the FISA
Court, the petition review pool, or the FISA Court of Review,
as appropriate, in support of legal interpretations that
minimize the scope of surveillance and the extent of data
collection and retention.
(3) Utilization of outside counsel.--The Constitutional
Advocate--
(A) may delegate to a competent outside counsel any duty or
responsibility of the Constitutional Advocate with respect to
participation in a matter before the FISA Court, the FISA
Court of Review, or the Supreme Court of the United States;
and
(B) may not delegate to outside counsel any duty or
authority set out in subparagraph (A), (B), (D), (F), (H), or
(I) of paragraph (1).
(4) Availability of documents and material.--The FISA
Court, the petition review pool, or the FISA Court of Review,
as appropriate, shall order any agency, department, or entity
to make available to the Constitutional Advocate, or
appropriate outside counsel if utilized by the Constitutional
Advocate under paragraph (3), any documents or other material
necessary to carry out the duties described in paragraph (1).
SEC. 403. ADVOCACY BEFORE THE FISA COURT.
(a) Appointment To Participate.--
(1) In general.--The FISA Court may appoint the
Constitutional Advocate to participate in a FISA Court
proceeding.
(2) Standing.--If the Constitutional Advocate is appointed
to participate in a FISA Court proceeding pursuant to
paragraph (1), the Constitutional Advocate shall have
standing as a party before the FISA Court in that proceeding.
(b) Reconsideration of a FISA Court Decision.--
(1) Authority to move for reconsideration.--The
Constitutional Advocate may move the FISA Court to reconsider
any decision of the FISA Court made after the date of the
enactment of this Act by petitioning the FISA Court not later
than 30 days after the date on which all documents and
materials relevant to the decision are made available to the
Constitutional Advocate.
(2) Discretion of the fisa court.--The FISA Court shall
have discretion to grant or deny a motion for reconsideration
made pursuant to paragraph (1).
(c) Amicus Curiae Participation.--
(1) Motion by the constitutional advocate.--The
Constitutional Advocate may file a motion with the FISA Court
to permit and facilitate participation of amicus curiae,
including participation in oral argument if appropriate, in
any proceeding. The FISA Court shall have the discretion to
grant or deny such a motion.
(2) Facilitation by the fisa court.--The FISA Court may,
sua sponte, permit and facilitate participation by amicus
curiae, including participation in oral argument if
appropriate, in proceedings before the FISA Court.
(3) Regulations.--Not later than 180 days after the date of
the enactment of this Act, the FISA Court shall promulgate
rules to provide the public with information sufficient to
allow interested parties to participate as amicus curiae.
SEC. 404. ADVOCACY BEFORE THE PETITION REVIEW POOL.
(a) Authority To Participate.--The petition review pool or
any party to a proceeding before the petition review pool may
authorize the Constitutional Advocate to participate in a
petition review pool proceeding.
(b) Reconsideration of a Petition Review Pool Decision.--
(1) Authority to move for reconsideration.--The
Constitutional Advocate may move the petition review pool to
reconsider any decision of the petition review pool made
after the date of the enactment of this Act by petitioning
the petition review pool not later than 30 days after the
date on which all documents and materials relevant to the
decision are made available to the Constitutional Advocate.
(2) Discretion of the petition review pool.--The petition
review pool shall have discretion to grant or deny a motion
for reconsideration made pursuant to paragraph (1).
(c) Amicus Curiae Participation.--
(1) Motion by the constitutional advocate.--The
Constitutional Advocate may file a motion with the petition
review pool to permit and facilitate participation of amicus
curiae, including participation in oral argument if
appropriate, in any proceeding. The petition review pool
shall have the discretion to grant or deny such a motion.
(2) Facilitation by the fisa court.--The petition review
pool may, sua sponte, permit and facilitate participation by
amicus curiae, including participation in oral argument if
appropriate, in proceedings before the petition review pool.
(3) Regulations.--Not later than 180 days after the date of
the enactment of this Act, the petition review pool shall
promulgate rules to provide the public with information
sufficient to allow interested parties to participate as
amicus curiae.
SEC. 405. APPELLATE REVIEW.
(a) Appeal of FISA Court Decisions.--
(1) Authority to appeal.--The Constitutional Advocate may
appeal any decision of the FISA Court or the petition review
pool issued after the date of the enactment of this Act not
later than 90 days after the date the decision is issued,
unless it would be apparent to all reasonable jurists that
such decision is dictated by statute or by precedent handed
down after such date of enactment.
(2) Standing as appellant.--If the Constitutional Advocate
appeals a decision of the FISA Court or the petition review
pool pursuant to paragraph (1), the Constitutional Advocate
shall have standing as a party before the FISA Court of
Review in such appeal.
(3) Mandatory review.--The FISA Court of Review shall
review any FISA Court or petition review pool decision
appealed by the Constitutional Advocate and issue a decision
in such appeal.
(4) Standard of review.--The standards for a mandatory
review of a FISA Court or petition review pool decision
pursuant to paragraph (3) shall be--
(A) de novo with respect to issues of law; and
(B) clearly erroneous with respect to determination of
facts.
(5) Amicus curiae participation.--
(A) In general.--The FISA Court of Review shall accept
amicus curiae briefs from interested parties in all mandatory
reviews pursuant to paragraph (3) and shall provide for
amicus curiae participation in oral argument if appropriate.
(B) Regulations.--Not later than 180 days after the date of
the enactment of this Act, the FISA Court of Review shall
promulgate rules to provide the public with information
sufficient to allow interested parties to participate as
amicus curiae.
(b) Review of FISA Court of Review Decisions.--
(1) Authority.--The Constitutional Advocate may seek a writ
of certiorari from the Supreme Court of the United States for
review of any decision of the FISA Court of Review.
(2) Standing.--In any proceedings before the Supreme Court
of the United States relating to a petition of certiorari
filed under paragraph (1) and any proceedings in a matter for
which certiorari is granted, the Constitutional Advocate
shall have standing as a party.
SEC. 406. DISCLOSURE.
(a) Requirement To Disclose.--The Attorney General shall
publicly disclose--
(1) all decisions issued by the FISA Court, the petition
review pool, or the FISA Court of Review after July 10, 2003,
that include a significant construction or interpretation of
law;
(2) any decision of the FISA Court or the petition review
pool appealed by the Constitutional Advocate pursuant to this
title; and
(3) any FISA Court of Review decision that is issued after
an appeal by the Constitutional Advocate.
(b) Disclosure Described.--For each disclosure required by
subsection (a) with respect to a decision, the Attorney
General shall make available to the public documents
sufficient--
(1) to identify with particularity each legal question
addressed by the decision and how such question was resolved;
(2) to describe in general terms the context in which the
matter arises;
(3) to describe the construction or interpretation of any
statute, constitutional provision, or other legal authority
relied on by the decision; and
(4) to indicate whether the decision departed from any
prior decision of the FISA Court, the petition review pool,
or the FISA Court of Review.
(c) Documents Described.--The Attorney General shall
satisfy the disclosure requirements in subsection (b) by--
(1) releasing a FISA Court, petition review pool, or FISA
Court of Review decision in its entirety or as redacted;
(2) releasing a summary of a FISA Court, petition review
pool, or FISA Court of Review decision; or
(3) releasing an application made to the FISA Court, a
petition made to the petition review pool, briefs filed
before the FISA Court, the petition review pool, or the FISA
Court of Review, or other materials, in full or as redacted.
(d) Extensive Disclosure.--The Attorney General shall
release as much information regarding the facts and analysis
contained in a decision described in subsection (a) or
documents described in subsection (c) as is consistent with
legitimate national security concerns.
(e) Timing of Disclosure.--
[[Page S3415]]
(1) Decisions issued prior to enactment.--A decision issued
prior to the date of the enactment of this Act that is
required to be disclosed under subsection (a)(1) shall be
disclosed not later than 180 days after the date of the
enactment of this Act.
(2) FISA court and petition review pool decisions.--The
Attorney General shall release FISA Court or petition review
pool decisions appealed by the Constitutional Advocate not
later than 30 days after the date the appeal is filed.
(3) FISA court of review decisions.--The Attorney General
shall release FISA Court of Review decisions appealed by the
Constitutional Advocate not later than 90 days after the date
the appeal is filed.
(f) Petition by the Constitutional Advocate.--
(1) Authority to petition.--The Constitutional Advocate may
petition the FISA Court, the petition review pool, or the
FISA Court of Review to order--
(A) the public disclosure of a decision of such a Court or
review pool, and documents or other material relevant to such
a decision, previously designated as classified information;
or
(B) the release of an unclassified summary of such
decisions and documents.
(2) Contents of petition.--Each petition filed under
paragraph (1) shall contain a detailed declassification
proposal or a summary of the decision and documents that the
Constitutional Advocate proposes to have released publicly.
(3) Role of the attorney general.--
(A) Copy of petition.--The Constitutional Advocate shall
provide to the Attorney General a copy of each petition filed
under paragraph (1).
(B) Opposition.--The Attorney General may oppose a petition
filed under paragraph (1) by submitting any objections in
writing to the FISA Court, the petition review pool, or the
FISA Court of Review, as appropriate, not later than 90 days
after the date such petition was submitted.
(4) Public availability.--Not less than 91 days after
receiving a petition under paragraph (1), and taking into
account any objections from the Attorney General made under
paragraph (3)(B), the FISA Court, the petition review pool,
or the FISA Court of Review, as appropriate, shall declassify
and make readily available to the public any decision,
document, or other material requested in such petition, to
the greatest extent possible, consistent with legitimate
national security considerations.
(5) Effective date.--The Constitutional Advocate may not
file a petition under paragraph (1) until 181 days after the
date of the enactment of this Act, except with respect to a
decision appealed by the Constitutional Advocate.
SEC. 407. ANNUAL REPORT TO CONGRESS.
(a) Requirement for Annual Report.--The Constitutional
Advocate shall submit to Congress an annual report on the
implementation of this title.
(b) Contents.--Each annual report submitted under
subsection (a) shall--
(1) detail the activities of the Office;
(2) provide an assessment of the effectiveness of this
title; and
(3) propose any new legislation to improve the functioning
of the Office or the operation of the FISA Court, the
petition review pool, or the FISA Court of Review.
SEC. 408. PRESERVATION OF RIGHTS.
Nothing in this title shall be construed--
(1) to provide the Attorney General with authority to
prevent the FISA Court, the petition review pool, or the FISA
Court of Review from declassifying decisions or releasing
information pursuant to this title; and
(2) to eliminate the public's ability to secure information
under section 552 of title 5, United States Code (commonly
known as the ``Freedom of Information Act'') or any other
provision of law.
TITLE V--NATIONAL SECURITY LETTER REFORMS
SEC. 501. NATIONAL SECURITY LETTER AUTHORITY.
(a) National Security Letter Authority for Communications
Subscriber Records.--
(1) In general.--Section 2709(b) of title 18, United States
Code, is amended by amending paragraphs (1) and (2) to read
as follows:
``(1) request the name, address, length of service, and
local and long distance toll billing records of a person or
entity if the Director (or the Director's designee) certifies
in writing to the wire or electronic communication service
provider to which the request is made that--
``(A) the name, address, length of service, and toll
billing records sought are relevant to an authorized
investigation to protect against international terrorism or
clandestine intelligence activities, provided that such an
investigation of a United States person is not conducted
solely on the basis of activities protected by the first
amendment to the Constitution of the United States; and
``(B) there are specific and articulable facts showing that
there are reasonable grounds to believe that the name,
address, length of service, and toll billing records sought--
``(i) pertain to a foreign power or agent of a foreign
power;
``(ii) are relevant to the activities of a suspected agent
of a foreign power who is the subject of such authorized
investigation; or
``(iii) pertain to an individual in contact with, or known
to, a suspected agent; and
``(2) request the name, address, and length of service of a
person or entity if the Director (or the Director's designee)
certifies in writing to the wire or electronic communication
service provider to which the request is made that--
``(A) the information sought is relevant to an authorized
investigation to protect against international terrorism or
clandestine intelligence activities, provided that such an
investigation of a United States person is not conducted
solely upon the basis of activities protected by the first
amendment to the Constitution of the United States; and
``(B) there are specific and articulable facts showing that
there are reasonable grounds to believe that the information
sought pertains to--
``(i) a foreign power or agent of a foreign power;
``(ii) the activities of a suspected agent of a foreign
power who is the subject of such authorized investigation; or
``(iii) an individual in contact with, or known to, a
suspected agent.''.
(b) National Security Letter Authority for Certain
Financial Records.--Section 1114 of the Right to Financial
Privacy Act of 1978 (12 U.S.C. 3414) is amended to read as
follows:
``SEC. 1114. NATIONAL SECURITY LETTER FOR CERTAIN FINANCIAL
RECORDS.
``(a) Authorization.--
``(1) In general.--The Director of the Federal Bureau of
Investigation, or a designee of the Director whose rank shall
be no lower than Deputy Assistant Director at Bureau
headquarters or Special Agent in Charge in a Bureau field
office, or the Director of the United States Secret Service
may issue in writing and cause to be served on a financial
institution, a National Security Letter requiring the
production of--
``(A) the name of a customer of the financial institution;
``(B) the address of a customer of the financial
institution;
``(C) the length of time during which a person has been, or
was, a customer of the financial institution (including the
start date) and the type of service provided by the
institution to the customer; and
``(D) any account number or other unique identifier
associated with a customer of the financial institution.
``(2) Limitation.--A National Security Letter issued under
this subsection may not require the production of records or
information not listed in paragraph (1).
``(b) National Security Letter Requirements.--
``(1) In general.--A National Security Letter issued under
subsection (a) shall--
``(A) be subject to the requirements of subsections (b)
through (f) of section 2709 of title 18, United States Code,
in the same manner and to the same extent as those provisions
apply with respect to a request under section 2709(b) of
title 18, United States Code, to a wire or electronic
communication service provider;
``(B)(i) in the case of a National Security Letter issued
by the Director of the Federal Bureau of Investigation or the
Director's designee, include a statement of facts showing
that there are reasonable grounds to believe that the records
or other things sought--
``(I) are relevant to an authorized investigation (other
than a threat assessment) to obtain foreign intelligence
information not concerning a United States person or to
protect against international terrorism or clandestine
intelligence activities; and
``(II) pertain to--
``(aa) a foreign power or an agent of a foreign power;
``(bb) the activities of a suspected agent of a foreign
power who is the subject of such authorized investigation; or
``(cc) an individual in contact with, or known to, a
suspected agent of a foreign power; and
``(ii) in the case of a National Security Letter issued by
the Director of the United States Secret Service, include a
statement of facts showing that there are reasonable grounds
to believe that the records or other things sought are
relevant to the conduct of the protective functions of the
United States Secret Service.
``(2) Reporting.--On a semiannual basis the Director of the
Federal Bureau of Investigation and the Director of the
United States Secret Service shall fully inform the Select
Committee on Intelligence, the Committee on the Judiciary,
and the Committee on Banking, Housing, and Urban Affairs of
the Senate and the Permanent Select Committee on
Intelligence, the Committee on the Judiciary, and the
Committee on Financial Services of the House of
Representatives, concerning all requests made under
subsection (a).
``(3) Definitions.--For purposes of this subsection, the
terms `agent of a foreign power', `international terrorism',
`foreign intelligence information', and `United States
person' have the same meanings as in section 101 of the
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1801).
``(c) Definition of `Financial Institution'.--For purposes
of this section (and sections 1115 and 1117, insofar as the
sections relate to the operation of this section), the term
`financial institution' has the same meaning as in
subsections (a)(2) and (c)(1) of section 5312 of title 31,
United States Code, except that the term shall include only a
financial institution any part of which is located inside any
State or territory of the United States, the District of
Columbia, Puerto Rico, Guam, American Samoa, the Commonwealth
of the Northern Mariana Islands, or the United States Virgin
Islands.''.
[[Page S3416]]
(c) National Security Letter Authority for Certain Consumer
Report Records.--
(1) In general.--Section 626 of the Fair Credit Reporting
Act (15 U.S.C. 1681u) is amended--
(A) by striking the section heading and inserting the
following:
``Sec. 626. National Security Letters for certain consumer
report records'';
(B) by striking subsections (a) through (d) and inserting
the following:
``(a) Authorization.--
``(1) In general.--The Director of the Federal Bureau of
Investigation, or a designee of the Director whose rank shall
be no lower than Deputy Assistant Director at Bureau
headquarters or Special Agent in Charge in a Bureau field
office, may issue in writing and cause to be served on a
consumer reporting agency a National Security Letter
requiring the production of--
``(A) the name of a consumer;
``(B) the current and former address of a consumer;
``(C) the current and former places of employment of a
consumer; and
``(D) the name and address of any financial institution (as
that term is defined in section 1101 of the Right to
Financial Privacy Act of 1978 (12 U.S.C. 3401)) at which a
consumer maintains or has maintained an account, to the
extent that the information is in the files of the consumer
reporting agency.
``(2) Limitation.--A National Security Letter issued under
this subsection may not require the production of a consumer
report.
``(b) National Security Letter Requirements.--
``(1) In general.--A National Security Letter issued under
subsection (a) shall--
``(A) be subject to the requirements of subsections (b)
through (f) of section 2709 of title 18, United States Code,
in the same manner and to the same extent as those provisions
apply with respect to a request under section 2709(b) of
title 18, United States Code, to a wire or electronic
communication service provider; and
``(B) include a statement of facts showing that there are
reasonable grounds to believe that the records or other
things sought--
``(i) are relevant to an authorized investigation (other
than a threat assessment) to obtain foreign intelligence
information not concerning a United States person or to
protect against international terrorism or clandestine
intelligence activities; and
``(ii) pertain to--
``(I) a foreign power or an agent of a foreign power;
``(II) the activities of a suspected agent of a foreign
power who is the subject of such authorized investigation; or
``(III) an individual in contact with, or known to, a
suspected agent of a foreign power.
``(2) Reporting.--On a semiannual basis the Director of the
Federal Bureau of Investigation shall fully inform the Select
Committee on Intelligence, the Committee on the Judiciary,
and the Committee on Banking, Housing, and Urban Affairs of
the Senate and the Permanent Select Committee on
Intelligence, the Committee on the Judiciary, and the
Committee on Financial Services of the House of
Representatives, concerning all requests made under
subsection (a).
``(3) Definitions.--For purposes of this subsection, the
terms `agent of a foreign power', `international terrorism',
`foreign intelligence information', and `United States
person' have the same meanings as in section 101 of the
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1801).'';
(C) by striking subsections (f) through (h); and
(D) by redesignating subsections (e) and (i) through (m) as
subsections (c) through (h), respectively.
(2) Repeal.--Section 627 of the Fair Credit Reporting Act
(15 U.S.C. 1681v) is repealed.
(d) Technical and Conforming Amendment.--
(1) Table of sections amendment.--The table of sections for
the Fair Credit Reporting Act (15 U.S.C. 1681 et seq.) is
amended by striking the items relating to sections 626 and
627 and inserting the following:
``626. National Security Letters for certain consumer report records.
``627. [Repealed].''.
(2) Conforming amendments.--
(A) Notice requirements.--Section 1109 of the Right to
Financial Privacy Act of 1978 (12 U.S.C. 3409) is amended by
striking subsection (c).
(B) Title 18, united states code.--Title 18, United States
Code, is amended--
(i) in section 1510(e), by striking ``section 626(d)(1) or
627(c)(1) of the Fair Credit Reporting Act (15 U.S.C.
1681u(d)(1) or 1681v(c)(1)), section 1114(a)(3)(A) or
1114(a)(5)(D)(i) of the Right to Financial Privacy Act (12
U.S.C. 3414(a)(3)(A) or 3414(a)(5)(D)(i)),'' and inserting
``section 626 of the Fair Credit Reporting Act (15 U.S.C.
1681u), section 1114 of the Right to Financial Privacy Act of
1978 (12 U.S.C. 3414),''; and
(ii) in section 3511--
(I) by striking ``section 1114(a)(5)(A) of the Right to
Financial Privacy Act,'' each place that term appears and
inserting ``section 1114 of the Right to Financial Privacy
Act of 1978 (12 U.S.C. 3414),''; and
(II) by striking ``or section 627(a)'' each place that term
appears.
(C) National security act of 1947.--Section 507(b) of the
National Security Act of 1947 (50 U.S.C. 3106(b)) is
amended--
(i) in paragraph (2), by striking ``section 626(h)(2) of
the Fair Credit Reporting Act (15 U.S.C. 1681u(h)(2)).'' and
inserting ``section 626(b)(2) of the Fair Credit Reporting
Act (15 U.S.C. 1681u(b)(2)).''; and
(ii) in paragraph (3), by striking ``section 1114(a)(5)(C)
of the Right to Financial Privacy Act of 1978 (12 U.S.C.
3414(a)(5)(C)).'' and inserting ``section 1114(b)(2) of the
Right to Financial Privacy Act of 1978 (12 U.S.C.
3414(b)(2)).''.
(D) USA patriot act.--
(i) Section 118.--Section 118 of the USA PATRIOT
Improvement and Reauthorization Act of 2005 (Public Law 109-
177; 18 U.S.C. 3511 note) is amended--
(I) in subsection (c)(1)--
(aa) in subparagraph (C), by inserting ``and'' at the end;
(bb) in subparagraph (D), by striking ``; and'' and
inserting a period; and
(cc) by striking subparagraph (E); and
(II) in subsection (d)--
(aa) in paragraph (2), by striking ``Section 1114(a)(5)(A)
of the Right to Financial Privacy Act (12 U.S.C.
3414(a)(5)(A))'' and inserting ``Section 1114 of the Right to
Financial Privacy Act of 1978 (12 U.S.C. 3414)''; and
(bb) by striking paragraph (5).
(ii) Section 119.--Section 119(g) of the USA PATRIOT
Improvement and Reauthorization Act of 2005 (Public Law 109-
177; 120 Stat. 219) is amended--
(I) in paragraph (2), by striking ``Section 1114(a)(5)(A)
of the Right to Financial Privacy Act (12 U.S.C.
3414(a)(5)(A))'' and inserting ``Section 1114 of the Right to
Financial Privacy Act of 1978 (12 U.S.C. 3414)''; and
(II) by striking paragraph (5).
SEC. 502. PUBLIC REPORTING ON NATIONAL SECURITY LETTERS.
Section 118(c) of the USA PATRIOT Improvement and
Reauthorization Act of 2005 (Public Law 109-177; 18 U.S.C.
3511 note), as amended by section 501(d)(2)(D)(i), is further
amended--
(1) in paragraph (1)--
(A) in the matter preceding subparagraph (A), by striking
``concerning different United States persons''; and
(B) in subparagraph (A), by striking ``, excluding the
number of requests for subscriber information'';
(2) by redesignating paragraph (2) as paragraph (3); and
(3) by inserting after paragraph (1) the following:
``(2) Content.--
``(A) In general.--Except as provided in subparagraph (B),
each report required under this subsection shall include the
total number of requests described in paragraph (1) requiring
disclosure of information concerning--
``(i) United States persons;
``(ii) persons who are not United States persons;
``(iii) persons who are the subjects of authorized national
security investigations; or
``(iv) persons who are not the subjects of authorized
national security investigations.
``(B) Exception.--With respect to the number of requests
for subscriber information under section 2709 of title 18,
United States Code, a report required under this subsection
need not provide information separated into each of the
categories described in subparagraph (A).''.
TITLE VI--REPORTING FISA ORDERS AND NATIONAL SECURITY LETTERS
SEC. 601. THIRD-PARTY REPORTING OF FISA ORDERS AND NATIONAL
SECURITY LETTERS.
(a) In General.--Each electronic service provider may
report information to the public in accordance with this
section about requests and demands for information made by
any Government entity under a surveillance law, and is exempt
in accordance with subsection (d) from liability with respect
to that report, even if such provider would otherwise be
prohibited by a surveillance law from reporting that
information.
(b) Periodic Aggregate Reports.--An electronic service
provider may report such information not more often than
quarterly and only to the following extent:
(1) Estimate of numbers of demands and requests made.--The
report may reveal an estimate of the number of such demands
and requests made during the period to which the report
pertains.
(2) Estimate of numbers of demands and requests complied
with.--The report may reveal an estimate of the numbers of
such demands and requests the service provider complied with
during the period to which the report pertains, regardless of
when the demands or requests were made.
(3) Estimate of number of users or accounts.--The report
may reveal an estimate of the numbers of users or accounts,
or both, of the service provider, for which information was
demanded, requested, or provided during the period to which
the report pertains.
(c) Special Rules for Reports.--
(1) Level of detail by authorizing surveillance law.--Any
estimate disclosed under this section may be an overall
estimate or broken down by categories of authorizing
surveillance laws or by provisions of authorizing
surveillance laws.
(2) Level of detail by numerical range.--Each estimate
disclosed under this section shall be rounded to the nearest
100. If an estimate is zero, an electronic service provider
may report the estimate as zero.
(3) Report may be broken down by periods not less than
calendar quarters.--For any reporting period, the provider
may break
[[Page S3417]]
down the report by calendar quarters or any other time
periods greater than a calendar quarter.
(d) Limitation on Liability.--An electronic service
provider making a report that the provider reasonably
believes in good faith is authorized by this section is not
criminally or civilly liable in any court for making that
report.
(e) Rule of Construction.--Nothing in this section shall be
construed to prohibit disclosures other than those authorized
by this section.
(f) Definitions.--In this section:
(1) The term ``electronic service provider'' means a
provider of an electronic communications service (as that
term is defined in section 2510 of title 18, United States
Code) or a provider of a remote computing service (as that
term is defined in section 2711 of title 18, United States
Code).
(2) The term ``surveillance law'' means any provision of
any of the following:
(A) The Foreign Intelligence Surveillance Act of 1978 (50
U.S.C. 1801 et seq.).
(B) Section 802(a) of the National Security Act of 1947 (50
U.S.C. 3162(a)).
(C) Section 2709 of title 18, United States Code.
(D) Section 1114 of the Right to Financial Privacy Act of
1978 (12 U.S.C. 3414).
(E) Subsections (a) or (b) of section 626 of the Fair
Credit Reporting Act (15 U.S.C. 1681u).
SEC. 602. GOVERNMENT REPORTING OF FISA ORDERS.
(a) Electronic Surveillance.--Section 107 of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1807) is
amended--
(1) by redesignating subsections (a) and (b) as paragraphs
(1) and (2), respectively;
(2) in the matter preceding paragraph (1) (as redesignated
by paragraph (1) of this subsection)--
(A) by striking ``In April'' and inserting ``(a) In
April''; and
(B) by striking ``Congress'' and inserting ``the Select
Committee on Intelligence and the Committee on the Judiciary
of the Senate and the Permanent Select Committee on
Intelligence and the Committee on the Judiciary of the House
of Representatives'';
(3) in subsection (a) (as designated by paragraph (2) of
this subsection)--
(A) in paragraph (1) (as redesignated by paragraph (1) of
this subsection), by striking ``and'' at the end;
(B) in paragraph (2) (as so redesignated), by striking the
period at the end and inserting a semicolon; and
(C) by adding at the end the following new paragraphs:
``(3) the total number of individuals who were subject to
electronic surveillance conducted under an order entered
under this title, rounded to the nearest 100; and
``(4) the total number of United States persons who were
subject to electronic surveillance conducted under an order
entered under this title, rounded to the nearest 100.''; and
(4) by adding at the end the following new subsection:
``(b)(1) Each report required under subsection (a) shall be
submitted in unclassified form.
``(2) Not later than 7 days after a report is submitted
under subsection (a), the Attorney General shall make such
report publicly available.''.
(b) Pen Register and Trap and Trace Devices.--Section 406
of the Foreign Intelligence Surveillance Act of 1978 (50
U.S.C. 1846) is amended--
(1) in subsection (b)--
(A) in paragraph (2), by striking ``and'' at the end;
(B) in paragraph (3), by striking the period at the end and
inserting a semicolon; and
(C) by adding at the end the following new paragraphs:
``(4) a good faith estimate of the total number of
individuals whose electronic or wire communications
information was obtained through the use of pen register or
trap and trace devices authorized under an order entered
under this title, rounded to the nearest 100; and
``(5) a good faith estimate of the total number of United
States persons whose electronic or wire communications
information was obtained through the use of a pen register or
trap and trace devices authorized under an order entered
under this title, rounded to the nearest 100.''; and
(2) by adding at the end the following new subsection:
``(c)(1) Each report required under subsection (b) shall be
submitted in unclassified form.
``(2) Not later than 7 days after a report is submitted
under subsection (b), the Attorney General shall make such
report publicly available.''.
(c) Access to Certain Business Records.--Section 502 of the
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1862) is amended--
(1) in subsection (b)(3), by adding at the end the
following new subparagraphs:
``(F) Records concerning electronic communications.
``(G) Records concerning wire communications.''; and
(2) in subsection (c)--
(A) in paragraph (1)--
(i) in subparagraph (A), by striking ``and'' at the end;
(ii) in subparagraph (B), by striking the period at the end
and inserting a semicolon; and
(iii) by adding at the end the following new subparagraphs:
``(C) a good faith estimate of the total number of
individuals whose tangible things were produced under an
order entered under section 501, rounded to the nearest 100;
and
``(D) a good faith estimate of the total number of United
States persons whose tangible things were produced under an
order entered under section 501, rounded to the nearest
100.''; and
(B) by adding at the end the following new paragraph:
``(3) Not later than 7 days after the date on which a
report is submitted under paragraph (1), the Attorney General
shall make such report publicly available.''.
(d) Additional Procedures Regarding Certain Persons Outside
the United States.--Section 707 of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1881f) is amended by
adding at the end the following new subsection:
``(c) Additional Annual Report.--
``(1) Report required.--In April of each year, the Attorney
General shall submit to the congressional intelligence
committees and the Committees on the Judiciary of the House
of Representatives and the Senate a report setting forth with
respect to the preceding year--
``(A) the total number of--
``(i) directives issued under section 702;
``(ii) orders granted under section 703; and
``(iii) orders granted under section 704;
``(B) good faith estimates of the total number of
individuals, rounded to the nearest 100, whose electronic or
wire communications or communications records were collected
pursuant to--
``(i) an order granted under section 703; and
``(ii) an order granted under section 704; and
``(C) good faith estimates of the total number, rounded to
the nearest 100, of United States persons whose electronic or
wire communications or communications records were collected
pursuant to--
``(i) an order granted under section 703; and
``(ii) an order granted under section 704.
``(2) Form.--Each report required under paragraph (1) shall
be submitted in unclassified form.
``(3) Public availability.--Not later than 7 days after the
date on which a report is submitted under paragraph (1), the
Attorney General shall make such report publicly
available.''.
TITLE VII--OTHER MATTERS
SEC. 701. PRIVACY AND CIVIL LIBERTIES OVERSIGHT BOARD
SUBPOENA AUTHORITY.
Section 1061(g) of the Intelligence Reform and Terrorism
Prevention Act of 2004 (42 U.S.C. 2000ee(g)) is amended--
(1) in paragraph (1)(D), by striking ``submit a written
request to the Attorney General of the United States that the
Attorney General'';
(2) by striking paragraph (2); and
(3) by redesignating paragraphs (3) and (4) as paragraphs
(2) and (3).
SEC. 702. SCOPE OF LIABILITY PROTECTION FOR PROVIDING
ASSISTANCE TO THE GOVERNMENT.
Section 802 of the Foreign Intelligence Surveillance Act of
1978 (50 U.S.C. 1885a) is amended--
(1) in subsection (a), in the matter preceding paragraph
(1), by inserting ``and except as provided in subsection
(j),'' after ``law,''; and
(2) by adding at the end the following:
``(j) Violation of User Agreements.--Subsection (a) shall
not apply to assistance provided by a person if the provision
of assistance violates a user agreement, including any
privacy policy associated with the user agreement, in effect
at the time the assistance is provided between the person and
the person relating to whom the assistance was provided.''.
______
