[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

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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

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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.''.
                                 ______