[Congressional Record Volume 162, Number 99 (Tuesday, June 21, 2016)]
[Senate]
[Pages S4383-S4404]
COMMERCE, JUSTICE, SCIENCE, AND RELATED AGENCIES APPROPRIATIONS ACT,
2016
[...]
Amendment No. 4787
Mr. WYDEN. Mr. President, I believe the next vote will take place on
the amendment offered by the senior Senator from Arizona that would
allow for the issuance of what are called national security letters, or
NSLs, which are administrative subpoenas, and there will be an
additional provision on what is called lone wolf. I am going to direct
most of my comments for colleagues on the national security letters
because the lone wolf provision was reauthorized for another 4 years as
part of the USA FREEDOM Act.
I want colleagues to understand that this tool, which certainly has
been debated, while never used--it wouldn't have applied to the Orlando
or San Bernardino cases--I want colleagues to understand that it is the
law of the land today, and in the USA FREEDOM Act, it was extended for
another 4 years.
What I would like to do, though, is focus my remarks on the amendment
from the senior Senator from Arizona as it relates to national security
letters. In effect, what the senior Senator from Arizona is seeking to
do is add back a provision that the administration of George W. Bush--
not exactly an administration people would accuse of being soft on
terror--the senior Senator from Arizona is seeking to add back this
provision that was rejected by the administration of George W. Bush.
Here is how the amendment offered by the senior Senator from Arizona
would work. Under his amendment, which we will vote on tomorrow,
national security letters, which are called NSLs, could be issued by
any FBI field office to demand records from a company without going to
a judge or without any other oversight whatsoever. So let's repeat that
because what colleagues have wanted to know is exactly what this would
cover. The McCain amendment would allow for the government to demand
email records, text message logs, Web browsing history, and certain
types of other location information without any court oversight
whatsoever.
As I have indicated, this had been on the books for a number of
years, and the administration of George W. Bush said it was
unnecessary--in effect, that it was unnecessarily intrusive.
In addition, since the Bush administration acted, I want to make
mention of the fact that in the USA FREEDOM Act, the Congress adopted
something I have been working on for a number of years--since really
2013--to, in effect, give the government additional authority in the
case of emergencies.
In other words, I have always felt the Fourth Amendment and the
warrant process was something that was very
[[Page S4387]]
special in our country, but we live, of course, in a very dangerous
time. We are all concerned about the security and the safety and the
well-being of the people we represent. So I said, in section 102 of the
FREEDOM Act, let's make sure the FBI has all the authorities necessary
to protect the American people in the instance of an emergency. So the
USA FREEDOM Act gave the FBI the authority to demand all the records
they deemed necessary and then, in effect, after the fact--after the
fact--come back and settle up with the court. So unless you are opposed
to court oversight after the fact, unless you are opposed to court
oversight altogether, there is no reason to support the amendment
offered by the senior Senator from Arizona.
A number of colleagues have also asked about the history of these
national security letters. There is a long history of abuse and misuse,
a long and very undistinguished record of abusive practices.
The Justice Department inspector general has issued four separate
reports over the past few years--four separate reports--documenting a
number of serious problems. The inspector general found that data
collected pursuant to the national security letters was stored
indefinitely and used to gain access to private information in cases
that weren't relevant to an FBI investigation, and the national
security letters were used to collect tens of thousands of records at a
time.
Some have also made mention of the fact that a company that gets one
of these national security letters could challenge it in court. That is
technically right. Big companies that have the resources can challenge
them. The small companies invariably say they can't afford to do that.
So, again, no oversight. No oversight--particularly striking given the
fact that, as I have noted, in the FREEDOM Act--something I felt very
strongly about--we gave the government additional authority in the
instance of emergencies.
So we have now, by virtue of the amendment we will vote on tomorrow
from my friend and colleague--we certainly have agreed on plenty of
issues over the years. This is one where we see it differently. You
have something the Bush administration rejected. The administration of
George W. Bush--hardly one that we would say is sympathetic to the idea
of weakening the government's stance against terror--they thought this
was a mistake. They thought the amendment that there will be an effort
to add back in was a mistake, and it was taken out. This would not have
beefed up the fight against what happened in San Bernardino and
Orlando.
The FBI says it would help them with paperwork. I am not going to
quibble with that. I have great respect for the FBI. But we are going
to abandon court oversight in an area where the inspector general has
documented abuses because it is convenient?
Colleagues, I will close with this: It is a dangerous time. If you
sit on the Intelligence Committee, as I have for a number of years, you
know that is not in question. The American people want policies that
promote their security and their liberty. That is what we are aiming
for. What is being advanced in this amendment is an idea that really
doesn't do either. It doesn't advance the security and well-being of
the American people, and it certainly erodes their liberties.
So I hope tomorrow, when we have the vote on this amendment, that
colleagues will look at the history. It was rejected by the Bush
administration. Now we have emergency authority, I say to my
colleagues, for the government to get information when it needs it.
After the fact, the government can come back and settle up.
I think this amendment is a very substantial mistake. There has been
a long history documented by the inspector general of abuses with these
national security letters. I urge my colleagues tomorrow to oppose this
amendment.
I yield the floor.
The PRESIDING OFFICER. The Senator from Arizona.
Mr. McCAIN. Mr. President, the White House approved the FBI's request
for this fix and sent forward a proposal, and then FBI Director James
Comey, who I think is well respected--in fact, probably one of the most
respected men in America--summed up the importance of this amendment,
the Director of the FBI. No one who I know of has accused the Director
of the FBI of trying to adopt some unconstitutional practices or gather
power upon himself and his agency. Here is what he said: This amendment
``would be enormously helpful.'' That is despite what the Senator from
Oregon says. He said this is essentially ``a typo in the law that was
passed a number of years ago that requires us to get records, ordinary
transaction records that we can get in most contexts with a non-court
order, because it doesn't involve content of any kind, to go to the
FISA court to get a court order to get these records. Nobody intended
that.'' That is what the Director of the FBI says. That is what the
record shows, as is important. As the Director of the FBI says:
Nobody intended that. Nobody I've heard thinks that's
necessary. It would save us a tremendous amount of work hours
if we could fix that, without any compromise to anyone's
civil liberties or civil rights.
I agree with the Director of the FBI.
This amendment--I am astounded, very frankly, that there is not a
unanimous vote on this. It is simple. If the FBI is able to go into
your financial written records, if they are able to go into your
telephone records, then, pray tell, what is the difference between
those and electronic records? It just so happens electronic records are
much larger.
So don't take my word for it, I say to my colleagues, but I would
listen to the Federal Law Enforcement Officers Association--that
renowned ``corrupt'' organization. The Federal Law Enforcement Officers
Association--the Nation's largest nonpartisan professional association
which represents Federal law enforcement officers from every Federal
law enforcement agency, including the FBI--strongly supports this
amendment.
They go on to say--again, contrary to what the Senator from Oregon
says, the Federal Law Enforcement Officers Association says that this
amendment ``would correct an oversight in the law that has impeded the
FBI's ability to obtain these records in national security cases on a
timely basis.'' They go on to say that ``for over fifteen years--
including the eight years after 9/11--the FBI continued to use''--what
they are talking about now is they want ``to gather electronic
communications transactional records. Significantly, this authority was
never used to acquire these records indiscriminantly.'' They go on to
say that the amendment ``is necessary to protect America from terrorist
threats and transnational criminal organizations.''
This is what those men and women--thousands of them are members of
this organization. The list is incredibly long. The Federal law
enforcement agencies believe this amendment is necessary to protect
them and America from terrorist threats and transnational criminal
organizations. It is clear.
Mr. President, I ask unanimous consent that the following letters of
support be printed in the Record: the Federal Law Enforcement Officers
Association letter, the National Fraternal Order of Police letter, and
the Federal Bureau of Investigation Agents Association letter.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Federal Law Enforcement
Officers Association,
Washington, DC, June 10, 2016.
Hon. Charles E. Grassley,
Chairman, Judiciary Committee,
U.S. Senate, Washington, DC.
Hon. Patrick J. Leahy,
Ranking Member, Judiciary Committee, U.S. Senate, Washington,
DC.
Dear Chairman Grassley and Ranking Member Leahy: The
Federal Law Enforcement Officers Association (FLEOA)--the
nation's largest non-partisan professional association which
represents federal law enforcement officers from every
federal law enforcement agency, including the FBI--strongly
supports Senator Cornyn's effort to address issues related to
Electronic Communication Transactional Records (ECTRs) during
the Senate Judiciary Committee's consideration of S. 356, the
Electronic Communications Privacy Act Amendments Act of 2015.
The amendment, referred to as the ``ECTR Fix,'' would update
electronic privacy laws and would help the FBI effectively
investigate and thwart terrorist plots.
The ECTR amendment would correct an oversight in the law
that has impeded the FBI's ability to obtain these records in
national security cases on a timely basis. In
Counterterrorism and counterintelligence
[[Page S4388]]
investigations, telephone toll records and electronic
communications transactional records are key components. It's
important to distinguish that these electronic communications
are metadata, not content. Section 2709 of Title 18 permits
the FBI to collect this data with a national security letter
so long as the information is ``relevant to an authorized
investigation to protect against international terrorism or
clandestine intelligence activities.'' The metadata from
these records are critical when the content of terrorist
communications are increasingly beyond the reach of lawful
process because of the widespread deployment of strong
encryption software.
As originally enacted, Section 2709(a) established a duty
for wire and electronic service providers to comply with an
FBI request for ``subscriber information and toll billing
records information, or electronic communications
transactional records,'' and subsection (b) provided the
means by which the FBI could make such requests. Section
2709(b), however, did not specify the information that the
FBI could request. Instead, it referenced ``any such
information and records'' as described in subsection (a).
Congress amended Section 2709(b) in 1993 to specify that
the ``subscriber information'' that a certification could
request consisted of ``name, address, length of service, and
toll billing records.'' No changes were made to the authority
to obtain electronic communications transactional records.
However, while Section 2709(a) still required production of
electronic communications transactional records, removal of
the phrase ``any such information and records'' left
subsection (b) without any specific reference to the
electronic communications transactional records referenced in
subsection (a). Nonetheless, Congress clearly intended
Section 2709 to continue to serve as a means of obtaining
electronic communications transactional records, as
subsection (a) continued to refer to a duty to produce such
records on request, and the title of the provision continued
to reference ``transactional records.''
For over fifteen years--including the eight years after 9/
11--the FBI continued to use Section 2709 to gather
electronic communications transactional records.
Significantly, this authority was never used to acquire these
records indiscriminately or in bulk. However, the recently-
passed USA FREEDOM Act specifically prohibits doing so. In
2009, however, some electronic communications service
providers began refusing to comply with these requests,
citing the scrivener's error referenced above. The number of
providers refusing to do so has increased over the years. In
certain cases, the FBI has sought the records using other
authorities, but those authorities take significantly more
time and resources than using Section 2709.
This section of the bill would amend Section 2709 to
reflect the original intent of Congress by clarifying the
types of ``telephone toll and transactional records'' that
the FBI used it to obtain for many years, while explicitly
prohibiting the collection of communications content.
In December 2015, FBI Director James Comey summed up the
critical importance of the ETCR amendment when he testified
before the Senate Judiciary Committee. He said, clarifying
this authority ``would be enormously helpful. There is
essentially a typo in the law that was passed a number of
years ago that requires us to get records, ordinary
transaction records that we can get in most contexts with a
non-court order, because it doesn't involve content of any
kind, to go to the FISA court to get a court order to get
these records. Nobody intended that. Nobody I've heard thinks
that that's necessary. It would save us a tremendous amount
of work hours if we could fix that, without any compromise to
anyone's civil liberties or civil rights.''
The ECTR amendment is necessary to protect America from
terrorist threats and transnational criminal organizations. I
strongly urge you to consider adopting the ETCR Fix as part
of S. 356 the Electronic Communications Privacy Act
Amendments Act.
Respectively,
Nathan R. Catura,
FLEOA National President.
____
National Fraternal
Order of Police,
Washington, DC, June 21, 2016.
Hon. Mitch McConnell,
Majority Leader,
U.S. Senate, Washington, DC.
Hon. Harry M. Reid,
Minority Leader,
U.S. Senate, Washington, DC.
Dear Senators McConnell and Reid, I am writing on behalf of
the members of the Fraternal Order of Police to advise you of
our support for S. Amdt. 4787 which will be offered to amend
H.R. 2578, the ``Commerce, Justice, Science, and Related
Agencies Appropriations Act, 2016.''
The amendment will provide Federal law enforcement with the
tools they need to investigate and prevent terrorist attacks
by clarifying Section 2709 of Title 18 with respect to
Electronic Communication Transactional Records (ECTRs). Under
this statute, Federal law enforcement authorities have been
able to request and then collect metadata, not content, from
service providers as long as they have a national security
letter and the data request is ``relevant to an authorized
investigation to protect against international terrorism or
clandestine intelligence activities.'' However, despite 15
years of regular cooperation, recent requests made to some
service providers have been rejected and these companies have
cited ambiguity in the existing statute.
The amendment would make clear Congressional intent that
such requests do not allow access to any content but that
name, email, Internet Protocol (IP) and physical addresses,
telephone me/instrument number, account number, login
history, length and type of service as well as the means by
which the service is paid for be made available to law
enforcement. This meta data can be crucial in
counterterrorism and counterintelligence investigations. The
FOP believes the amendment merely clarifies the existing
statute and does not give law enforcement any new authorities
or access to data previously unavailable to them. In fact,
the recent resistance to such requests was described to the
Committee on the Judiciary as ``essentially a typo'' and the
amendment better defines Congressional intent with respect to
``telephone toll and transactional records.''
I urge you and the Members of the United States Senate to
support S. Amdt. 4787 to ensure the timeliness and
effectiveness of our nation's counterterror and
counterintelligence operations. Our nation's security and
defense should not be held hostage or investigations
jeopardized because of a ``typo.''
Thank you as always for your consideration of the views of
the more than 330,000 members of the Fraternal Order of
Police. If I can provide any additional information on this
or any other issue, please do not hesitate to contact me or
Executive Director Jim Pasco in my Washington, D.C. office.
Sincerely,
Chuck Canterbury,
National President.
____
Federal Bureau of Investigation,
Agents Association,
Alexandria, VA, June 8, 2016.
Re: Electronic Communication Transactional Records.
Hon. Charles E. Grassley,
Chairman, Senate Committee on the Judiciary, U.S. Senate,
Washington, DC.
Hon. Patrick J. Leahy,
Ranking Member, Senate Committee on the Judiciary, U.S.
Senate, Washington, DC.
Dear Chairman Grassley and Ranking Member Leahy: On behalf
of the FBI Agents Association (``FBIAA''), a voluntary
professional association currently representing over 13,000
active duty and retired FBI Special Agents, I write to
express our support for addressing issues related to
Electronic Communication Transactional Records (``ECTRs'')
during the Senate Judiciary Committee's consideration of S.
356, the Electronic Communications Privacy Act Amendments Act
of 2015. The relevant amendment, referred to as the ``ECTR
Fix,'' would be wholly consistent with the effort to update
electronic privacy laws, and would help the FBI more
effectively investigate and thwart terrorist plots.
Notwithstanding the well-funded efforts by technology
companies and activists to misrepresent the ECTR Fix, the
truth is that clarifying the language of Sec. 2709 would
strike a familiar and effective balance between privacy and
security. ECTRs provide information abut the IP addresses,
routing, and sessions times for electronic communications,
and electronic service providers have complied with FBI
requests for ECTRs pursuant to Sec. 2709 for years. This
cooperation furthered the protection of the public, as ECTRs
are used to identify patterns of communications in the course
of national security and terrorism investigations. At the
same time, access to ECTRs does not represent a threat to the
privacy identify patterns of communications in the course of
national security and terrorism investigations. At the same
time, access to ECTRs does not represent a threat to the
privacy of Americans because the FBI can only request ECTRs
for a limited scope of investigations, and because ECTRs do
not include detailed information about the specific web pages
visited by internet users or the content of web pages or
electronic communications.
Despite these facts, and as a part of their privacy-focused
marketing strategies, technology companies recently began
refusing to cooperate with the FBI on ECTR requests, and have
pointed to statutory ambiguity as a justification for their
actions. This choice has undermined national security and
counterterrorism investigations, and necessitates
Congressional action.
Given the importance of protecting the public from
terrorist threats, we support an amendment to include the
ECTR Fix in S. 356, as well as the efforts to address the
issue through other legislative vehicles. We hope that
Congress will make these reasonable and common-sense changes
in a timely manner.
If you have any questions, please contact me at
rtariche@fbiaa.org or 703-247-2173, or FBIAA General Counsel
Dee Martin, dee.martin@bracewelllaw.com, and Joshua Zive,
joshua.zive@bracewelllaw.com.
Sincerely,
Reynaldo Tariche,
President.
Mr. McCAIN. I will go on.
The Federal Bureau of Investigation Agents Association says that it
is a voluntary professional association currently representing over
13,000 active-duty and retired FBI special agents.
[[Page S4389]]
Here are 13,000 FBI agents, active and retired, who believe this
amendment is essential for them to be able to do their job and protect
America.
By the way--hello--we just had an attack in Orlando where 49
Americans were slaughtered, and we are arguing whether we should allow
the FBI to find out not the information in electronic communications,
but just find out about electronic communications. That is what this is
about.
I will quote from the 13,000 active-duty and retired FBI special
agents:
I write to express our support for addressing issues
related to Electronic Communication Transactional Records
(``ECTRs''). . . . The relevant amendment, referred to as the
``ECTR Fix,'' would be wholly consistent with the effort to
update electronic privacy laws, and would help the FBI more
effectively investigate and thwart terrorist plots.
After Orlando, do we want to help the FBI more effectively
investigate and thwart terrorist plots or do we want to restrict their
ability to do so? Is that what the Senator from Oregon wants? I don't
think so.
Notwithstanding the well-funded efforts by technology
companies and activists to misrepresent the ECTR Fix, the
truth is that clarifying the language [of subsection 2709]
would strike a familiar and effective balance between privacy
and security. ECTRs provide information about the IP
addresses, routing, and sessions times for electronic
communications, and electronic service providers have
complied with FBI requests . . . for years. . . . Given the
importance of protecting the public from terrorist threats,
we support an amendment to include the ECTR Fix . . . as well
as the efforts to address the issue through other legislative
vehicles. We hope that Congress will make these reasonable
and common-sense changes in a timely manner.
It is signed by Reynaldo Tariche, the president of the Federal Bureau
of Investigation Agents Association.
So we have a choice here. We have a choice here. We have those who
are so worried about privacy and those whose job and whose solemn duty
is to protect this Nation--Federal law enforcement officers, the FBI,
13,000 of the FBI agents, and then, of course, we have those who are
under assault on a daily basis--our police.
This is a letter from the Fraternal Order of Police ``writing on
behalf of the members of the Fraternal Order of Police to advise you of
our support'' for this amendment which will be offered. ``The amendment
will provide Federal law enforcement with the tools they need to
investigate and prevent terrorist attacks.'' It isn't any more
complicated than that.
My remarks probably will be a little longer.
The Fraternal Order of Police has it right. This will provide an
ability to prevent and counter further terrorist attacks.
How many attacks do we need? I would ask my colleagues who are
opposed to this simple amendment, how many attacks? Another San
Bernardino? Another Orlando? Two or three more attacks before we give
the Director of the FBI the tools he says he needs and wants to protect
this Nation? That is what this is all about.
The Fraternal Order of Police goes on to say that ``the amendment
would make clear Congressional intent that such requests do not allow
access to any content but that name, email, Internet Protocol (IP) and
physical addresses, telephone/instrument number, account number, login
history, length and type of service as well as the means by which the
service is paid for be made available to law enforcement.''
The Senator from Oregon, if I got his remarks right, says: Well,
there has been corruption of it. There has been abuse. There has been
misapplication.
One of our jobs is oversight, if that is happening. But I also would
say that is a damning indictment of these men and women who are putting
their lives on the line every single day and are begging for this tool
to defend this Nation.
The Fraternal Order of Police says:
I urge you and the Members of the United States Senate to
support [the amendment] to ensure the timeliness and
effectiveness of our nation's counterterror and
counterintelligence operations. Our nation's security and
defense should not be held hostage or investigations
jeopardized because of a ``typo.''
Thank you as always for your consideration of the views of
the more than 330,000 members of the Fraternal Order of
Police.
These are the views of more than 330,000 members of the Fraternal
Order of Police. I think maybe we ought to listen to the will of
330,000 men and women who are out there every day defending this
Nation. Maybe we ought to listen to them. Maybe they are the ones whose
lives are in danger. They are the ones who are the first targets of the
terrorists. Maybe we ought to listen to their views rather than some
misguided view that somehow this invades our privacy, to find out
simply whether an address has been used and for how long--not content.
If content is involved, that requires going to the FISA Court.
Last week the Director of the CIA appeared before a rare open session
of the Senate Intelligence Committee to deliver a stern warning to the
American people: ISIL has built a global apparatus with the intent to
plot and incite attacks against the West. He explained that despite our
2-year air campaign in Iraq and Syria and despite our efforts to build
and fight with local forces and despite the best work of our special
operators, ISIL and other terrorist groups continue to evolve and plan
to kill innocent Americans who reject their hateful ideology.
That is the warning of the Director of the CIA. The CIA's warning
obviously comes after the attack. It is remarkable. The CIA's notice
about ISIL's continued strength followed years of warnings by the
Director of the FBI and others in law enforcement who have explained to
policymakers time and time again that the use of advanced technologies
by our enemies is making it increasingly difficult for law enforcement
to uncover and stop attacks. That is their view.
We give these people the responsibility to defend this Nation,
particularly against these attacks, and they are telling us they can't
adequately defend against these attacks because of a provision we have
that they can't even look at the fact that a site was used.
By the way, if the Senator from Oregon and others believe this is an
invasion of privacy, then why don't they propose an amendment that
telephone and financial records should also be in that same category?
Of course, that has the problem of being consistent.
The law allows the FBI to request telephone billing information,
financial transaction records, but terrorists don't radicalize by phone
and they don't listen to ISIL propaganda through financial
transactions. They radicalize through the Internet. I repeat: They
radicalize through the Internet. So if they are radicalizing through
the Internet, shouldn't we gain as much possible information as we can
by monitoring their use of the Internet?
Reports indicate that in 2013 the Orlando terrorist was removed from
a terrorist watch list because there was insufficient information
showing he was radicalized and therefore a threat. Perhaps--and I
emphasize ``perhaps''--if the FBI had more effective authorities that
would allow them to more easily determine Internet activity of those
suspected of radicalization, he would have remained, perhaps, on the
watch list. Currently, the FBI can only receive electronic
transactional records information by going through the FISA Court
process, which is a time-intensive court process that often takes over
a month. With the thousands of potentially radicalized individuals
already in the United States, we need to make it easier, not harder,
for the FBI to receive the critical evidence they need so they can
focus their investigations.
Let me state again clearly for the benefit of my colleagues what this
provision does not do. It does not allow the FBI to see the content of
emails or conversations in Internet chat rooms. As I said before, this
provision is narrowly drawn and carefully limited.
The administration, Congress, and national security experts from both
sides of the aisle have spoken repeatedly about taking on ISIL's
Internet radicalism. This provision, according to the Director of the
FBI, is a most important tool to give the FBI valuable data points to
do just that.
We face a threat from individuals who have been radicalized by the
words, actions, and ideology of terrorist groups. These individuals may
act alone, without clear direction from terrorist groups, but they
fulfill the intent and desire of these groups.
We must ensure that our law enforcement authorities keep pace with
the tactics and methods of our adversaries. If our adversaries seek to
attack us by inciting lone-wolf violence, we have to
[[Page S4390]]
make sure law enforcement has the authorities they need to investigate
and, we hope, stop those attacks.
Our intelligence and law enforcement officers are the best in the
world, but as terrorist networks grow and metastasize around the world,
we ask them to bear an increasingly difficult--some even say
impossible--burden. We ask them to uncover threats by individuals who
are hidden among millions of law-abiding citizens. We ask them to
determine which of us has been inspired by evil to do harm to our
fellow citizens, and we ask that they do this difficult task with
little or no impact on anyone's privacy. We have to recognize this
threat for what it is.
As our enemy evolves, so, too, we must evolve and strengthen our
counterterrorism tools and authorities. Let's stop tying the hands of
those who wish only to keep us safe and on many occasions are ready to
make themselves unsafe in order to protect our fellow citizens.
I guess my colleagues are presented with a choice. As the Senator
from Oregon, with great skill and oratorical tools, will talk about
rights of privacy, will talk about constitutional protections, all of
those things--this is simple. This is a simple amendment. It has
nothing to do with going into these sites and finding out information.
That requires going to court.
All it does is tell the FBI, whose Director has pled for this
capability--does anyone assume the Director of the FBI wants to act in
an unconstitutional fashion? Of course not. But you must accept the
fact that it is his responsibility to protect the Nation and,
therefore, when he asks for the tools to protect this Nation, then
maybe we ought to pay attention and give them to him. I know of no one
who is an objective observer who believes it would be unconstitutional
to adopt this amendment.
I don't know about abuses in the past that the Senator from Oregon
says have taken place. I know abuses have taken place in the past on
almost any aspect of American life. But I also know that when you have
all of our police--330,000 of them, representing them--13,000 in the
Federal Bureau of Investigation, Federal law enforcement agencies from
all over America--the list is incredibly long--all asking for the
ability to defend this Nation, by God, I think we should give it to
them.
I yield the floor.
The PRESIDING OFFICER. The Senator from Oregon.
Mr. WYDEN. Mr. President, the senior Senator from Arizona--whom, as I
mentioned, I have worked with often--has said, in effect, if you oppose
his amendment, you are interested in privacy.
The reality is, my interest is in privacy and security. I believe it
is possible to have both, and I want to explain how that is the case.
Something I worked on for a long time, the USA FREEDOM Act, we
included section 102. Section 102 very explicitly said that if the
government--if the FBI, in a situation like Orlando or San Bernardino,
for example--if the government believed it needed information
immediately--immediately--the government could get the information and
then go back to the court after the fact. In effect, after the
government had been able to get the information of its own volition,
settle up immediately so as to protect the American people.
This debate is about are we going to have policies that advance both
our security and our liberty. I have felt very strongly--I see my
seatmate, the distinguished ranking member of the Appropriations
Committee. We sit next to each other on the Intelligence Committee. We
talk about these issues very often. As part of the USA FREEDOM Act, I
pushed very hard to make sure the government had those emergency
authorities.
This is a dangerous time. Nobody disputes that. If you have been on
the Intelligence Committee, as Senator Mikulski and I have been for so
many years, that is not in question. This is a dangerous time.
No. 1, the question is, Are we going to have both security and
liberty? In my view, that is where the amendment from the senior
Senator from Arizona comes up short.
No. 2, the Senator from Arizona has said the problem he seeks to
correct was just a typo, kind of a clerical error--not even close.
The debate back in 1993--we have the record, the House, the Senate,
the FBI. It was very carefully crafted in a way to ensure that there
would not be abuse in the digital area. When you look at that
specifically, that is very clear. This was not a typo. This was
carefully crafted--House, Senate, FBI--in 1993.
When my friend from Arizona says it was a typo--not even close. I
hope colleagues will avail themselves of our offer to look at the
record.
Right now, nobody from the government, the FBI, has said, if it had
the power the Senator from Arizona seeks to give the government--nobody
in the intelligence field or in the government said it would have
prevented Orlando.
The fact is, the government has the authority, the emergency
authority, and it was something I pushed very hard for. It was right at
the core of my belief that we ought to be pushing for both security and
liberty at a dangerous time and that the two are not mutually
exclusive. So we added to the USA FREEDOM Act that emergency authority
for the government.
It is also true, the administration of George W. Bush specifically
rejected the idea the Senator from Arizona is calling for. They
specifically said this has created problems. There have been four
separate inspector general analyses that support that.
As we continue this discussion, I hope colleagues will see that we
ought to keep the focus on both security and liberty. That is why the
emergency authorities we got in the USA FREEDOM Act are so important.
They are intact. They can be used for any situation--Orlando, San
Bernardino, any other--that the government, the FBI, feels the security
and safety of the American people are at stake.
With respect to the lone-wolf provision, which I heard my colleague
mention, we reauthorized that for 4 years in the USA FREEDOM Act. I
supported that as well.
I just hope colleagues will think through the implications of the
amendment from the Senator from Arizona because under what he is
talking about, a national security letter, what is called an NSL, can
be issued by any FBI field office to demand records from a company
without going to a judge. To support this, in effect, you basically are
saying you don't support oversight, you don't support court oversight,
because we have given the court and the government the ability to move
quickly.
I hope tomorrow we don't conclude that the FBI ought to be able to
demand email records, text message logs, Web-browsing history, and
certain types of information without court oversight.
The Senator from Arizona said: Well, you are not going to get all the
content of those emails.
That is true, but the fact is, in a lot of instances, when you know
who emailed whom, you know a whole lot about that person. If somebody
emailed the psychiatrist four times in 48 hours, you know a whole lot
about the person. You don't have to see all of the content of the
emails.
Colleagues, we will discuss this some more, but I hope Senators will
see this is about ensuring there is both security and liberty. The
government has not said or intimated that if they had the power the
Senator from Arizona seeks to put back--that the Bush administration
rejected--the government has not said or intimated this would have
prevented the horrific tragedy in Orlando.
I hope my colleagues will oppose the McCain amendment tomorrow.
I yield the floor.
The PRESIDING OFFICER. The Senator from Maryland.
Ms. MIKULSKI. Mr. President, we have heard a spirited debate between
two distinguished Senators, two distinguished Americans, who are very
passionate about defending America, and I know there will be more
debate on this.
The Senator from Arizona and those who cosponsor his amendment want
to add more authority to the FBI.
I rise to say that in the next day, when there is an opportunity to
offer another amendment, I will be offering another amendment to give
the FBI more money to do the job with the authority it does have.
Working on a bipartisan basis, the distinguished Senator from Alabama
and I tried to produce a very good bill to fund the Justice Department,
one of which is the FBI.
[[Page S4391]]
We did do a good job, there is no doubt about it, but we operated
within the budget caps. Within that, we did the best we could, but
there is no doubt that the FBI could use more resources to be able to
enhance its counterterrorism efforts and also increase its surveillance
by tracking the terrorist threats.
So when the opportunity arises, I will be offering an amendment that
gives more money to the FBI, that also gives more money--working with
the Senator from Wisconsin, Ms. Baldwin--to deal with hate crimes, one
of the other significant issues here. Also, while we are talking about,
again, the more authority issue, this amendment would include a section
by Senator Leahy, the vice chair of the Judiciary Committee, that would
have tough penalties for those who knowingly transfer or receive a
firearm or know or have reasonable cause to believe it will be used to
commit a crime of terrorism, violence, or drug trafficking. It will
reduce the threat.
We can debate all we want about more authority for the FBI. I think
it is a good debate, the tension between security and civil liberties.
The distinguished Presiding Officer is also a member--an active,
diligent member--of the Intelligence Committee.
These are not easy issues, but my amendment should be an easy issue.
My amendment would add $175 million dedicated to the FBI's
counterterrorism efforts that would raise funding for the FBI above
what the House suggested. It would strengthen the FBI's
counterterrorism workforce. The FBI would be able to restore--remember,
not add--restore more than 350 positions, including 225 special agents
for critical FBI investigations related to counterterrorism and
counterintelligence. It would also give the FBI new tools to be able to
go where these bad guys have access to new technology and new ways of
avoiding detection.
The number of terrorism threats disrupted by the FBI grew from 214 in
fiscal year 2014 to 440 in fiscal year 2015. In one fiscal year, it
actually doubled. As the threat goes, the FBI needs increased resources
to hire and sustain the agents and intelligence analysts who interrupt
these plots.
Again, while we are talking more authority--and that debate will go
on--I am saying, if you are going to give them more authority, and
whether you are giving them more authority, the FBI is stretched thin.
We did the best we could under the budget caps, but my amendment
would be emergency funding. We don't look for offsets in order to take
from one important Department of Justice function to give to the FBI or
take from other Federal law enforcement to give to the FBI, or take
from local law enforcement to give to the FBI. And it would be a
tremendous boost.
It would also boost the FBI's surveillance capabilities and add
critical personnel, including special agents. Additional funds would be
provided for 36 new positions, 18 fully dedicated to tracking terrorist
threats, and it would certainly help to gather evidence on high, high
priority targets.
Again, while we are working at more authority, please, regardless of
where you are on the lone-wolf debate, the Mikulski amendment offers
the opportunity to add more funding.
Mr. WYDEN. Will my colleague yield for a question?
Ms. MIKULSKI. Certainly, to the Senator from Oregon.
Mr. WYDEN. I appreciate my colleague yielding, and I am a very, very
strong supporter of her amendment because I think the idea of adding
more resources is absolutely essential.
As I look at these cases--and she and I have talked about this on the
Select Committee on Intelligence--we know that the workforce is aging
in the intelligence community. We are going to need more dollars for
the personnel we are going to need and certainly a lot of resources in
a variety of areas. Is that my colleague's intention, to make sure we
get the resources to, in effect, get out in front of these upcoming
threats?
Ms. MIKULSKI. The Senator has identified my rationale and its actual
underpinnings in a most accurate and precise way.
You see, I am from the school of thought--along with, I know, the
ranking member of the Committee on Armed Services, also a member of the
Committee on Appropriations--that the defense of the Nation and the
protection of its people doesn't rely only on the Department of
Defense. There are also other muscular ways of protecting it, some of
which are, first of all, response and surveillance and so on in
existing, constitutionally allowed authorities and giving more money to
the FBI to operate under the law as we have currently defined it.
But you know what, we need to do prevention. Prevention really comes
from the kind of intervention that would occur with the State
Department--again, a tool of diplomacy. And what they have is a whole
effort underway to deal with the recruitment and radicalization of
Islamic jihadist terrorists on the Internet. Well, we have to support
that. When they were going for more money for defense, we made that
argument. But I am not going to relitigate old arguments.
We have before us Orlando. We have before us those who want to
curtail the terrorist threat. I want to curtail that terrorist threat.
And some of the ways I want to do it are, No. 1, add more money for the
FBI; No. 2, join with our colleague from Wisconsin, Senator Tammy
Baldwin, in adding more money to deal with hate crimes--hate crimes--
because often those are the aegis and the incubator and so on of future
violence; and the other is to close the loophole to keep guns out of
the hands of terrorists, violent criminals, and traffickers that our
distinguished ranking member of the Judiciary Committee mentioned.
Mr. WYDEN. If my colleague will continue to yield, just briefly, what
my colleague has stated--and I strongly agree with--is that she is
trying to assure that the resources are there for the future.
I am not going to drag my colleague into the earlier discussion, but
what I am concerned about, and have been, is that the Senator from
Arizona is relitigating the past. In effect, when the Bush
administration took away the power because it was too intrusive, he
wanted to go back to it.
But apropos of my colleague, isn't that the heart of her case--that
she is looking to the future--FBI resources, resources to deal with
hate crimes, resources to deal with prevention? It seems to me she is
trying to lay out a plan for the future.
Ms. MIKULSKI. The Senator from Oregon is absolutely correct. This
would be funding that would begin October 1. Given no cute tricks
around shutdown and slam-down politics as we go into the fall--that we
could actually move our appropriations--this would provide money
starting October 1 with these additional resources to help the FBI be
more effective than what it is, and also to help our Justice Department
be even more effective than what it is in fighting hate crimes.
I will be discussing my amendment in even more detail, but I know
there are other colleagues on the floor, and I now yield the floor.
The PRESIDING OFFICER. The Senator from New Jersey.
[...]
Amendment No. 4787
Mr. CORNYN. Mr. President, tomorrow we will have a chance to begin to
talk about the real cause of what happened that horrible night in
Orlando at the Pulse nightclub--that is a homegrown terrorist attack
inspired by the poisonous ideology of ISIS, the Islamic State. We will
have a chance to revisit the total lack of any coherent plan coming out
of the White House to deal with the threat of the Islamic State over in
the Middle East and the consequences of failing to deal with that here
at home.
The poisonous fruit of that failure and previous ones is already
self-evident: the massacre of American soldiers at Fort Hood, TX, in
2009 that took the lives of 13 people and an unborn child; a deadly
attack on 2 military facilities in Chattanooga, TN, in 2015 that took
the lives of 5 U.S. servicemembers; an attempted attack in Garland, TX,
about a year ago that--but for a vigilant police officer was thwarted--
could have been disastrous; and then, of course, the shooting in San
Bernardino where 14 people were killed. Add to that poisonous fruit of
the failure to have a coherent policy to deal with the Islamic State
and its poison, the 2013 Boston Marathon bombing, where 3 persons were
killed and many more wounded--not by a gun but by pressure cooker bombs
made by the terrorists. Most recently, the worst terrorist attack in
our country since 9/11 was in Orlando, where a jihadist pledged his
allegiance to ISIS and then viciously gunned down 49 people in that
Orlando nightclub.
It is telling that the Attorney General sought to withhold from the
American people the 911 calls of the Orlando shooter to excise out--to
rewrite history--and to diminish the terrorist influences that
motivated him in the first place. It is further evidence that the Obama
administration fails to see what is plainly right in front of its face
when it comes to the threat, and it continues to refuse to deal with it
in a
[[Page S4394]]
way that would crush ISIS and discourage people from becoming
radicalized because they feel like ISIS is winning. If ISIS were
crushed and destroyed, which should be our goal, I don't believe we
would have radicalized Americans here pledging allegiance to the leader
of a crushed or destroyed Islamic State.
So jihadi terrorism on American soil is not just some one-off, freak
occurrence. It is now an undeniable pattern. How many ISIS-inspired
attacks do we need in this country before we start talking about and
taking the threat seriously and begin targeting the evil ideology ISIS
is selling?
Typically, in an investigation, law enforcement has to work hours on
end to answer the question of who did it. But that is not the case with
these examples of Islamic extremism. We know who the enemy is. But the
Obama administration has failed to call it for what it is, and the
President has failed to offer any strategy to root out and exterminate
it. Promises to ``defeat and degrade'' appear just about as hollow as
the President's threat of retaliatory action if redlines were crossed
with the use of chemical weapons in Syria. When that happened, there
were no consequences.
So the result is that ISIS isn't contained, and it is surely not
retreating. Don't take my word for it. The Director of the Central
Intelligence Agency just last week suggested that ISIS would continue
to ``intensify its global terror campaign.'' They are not giving up,
and they are not going away. They are doubling down. Like the terrorist
in Orlando, ISIS is actively using every tool at its disposal to
recruit, train, and radicalize individuals here in America and in other
parts of the world.
This terrorist army figured out a long time ago that it could
accomplish its objectives of inflicting death and destruction on
innocent Americans without even having to send its operatives from the
Middle East into the United States. All it had to do was to export, not
its soldiers, but its ideology and poisonous ideas to the United States
via the Internet with the propaganda that it uses to, again, poison
susceptible minds, those who are sympathetic to the cause and willing
to swear allegiance to it and carry out the horrific acts like we saw
in Orlando.
Over the weekend, the House Homeland Security Committee chairman
noted that ISIS and its supporters are posting an estimated 200,000
tweets a day--200,000 separate messages a day on Twitter. How long will
it take before the administration recognizes that this propaganda poses
a growing national security problem? Once they acknowledge it, how much
longer will it take them before they do something about it?
In fact, we heard from FBI Director Comey that there are open
investigations on individuals suspected of being radicalized in all 50
States. I don't see the administration doing anything at all to
effectively counter this terrorist propaganda popping up all over the
Internet, turning some susceptible Americans into cold-blooded jihadist
killers. We can fight back by equipping our law enforcement personnel
with the tools they need to keep us safe. The fact is, you can't
connect the dots unless you can collect the dots, and that means robust
intelligence consistent with our Constitution, including the Fourth
Amendment.
Too often law enforcement officials have to operate with one hand
over their eye or one hand behind their back, however you want to
characterize it, because they can't access key information in a timely
manner, and because of that they are not able to discern the pendency
of an attack or the motivations of somebody who is planning an attack.
If they could collect the information, maybe--just maybe--they could
then go to the FISA Court and get a search warrant. Maybe--just maybe--
they could get a wiretap upon the showing of probable cause in court.
Those, of course, are consistent with the Fourth Amendment protections
against unreasonable searches and seizures, and the burden should be on
law enforcement to produce probable cause evidence in order to justify
collection of the content of those communications.
We saw the consequences of our flying blind in Garland, TX, just last
year. On the morning of the attempted terrorist attack, the two men who
came from Phoenix dressed in body armor with semiautomatic weapons sent
more than 100 messages overseas to suspected terrorists, and vice
versa, but, unfortunately, FBI Director Comey--at least the last time
he testified before the Senate Judiciary Committee--said the FBI still
doesn't have access to that information because of encryption. This
means our law enforcement authorities could be missing critical
information that could uncover future terrorist attacks or identify the
network of terrorists here so we can stop them before they kill again.
The Garland case isn't unique. The FBI is regularly slowed down by
outdated policies that make their job of protecting the homeland much
more difficult--more difficult than it needs to be. We saw that in San
Bernardino too. We have to address this gaping hole in our legal
authorities and do all we can to give the FBI and our other law
enforcement officials the tools they need, and a good place to start
would be tomorrow morning by allowing the FBI to use national security
letters to obtain key information about what suspected terrorists are
doing on the Internet and whom they are communicating with online in
counterterrorism investigations. This is not for content, as the
Presiding Officer knows. This is information about Internet and email
addresses, much as national security letters are currently authorized
to collect telephone numbers and financial information. In fact, the
FBI Director said the omission of this authority years ago, he
believes, was an oversight, but it now provides a gaping vulnerability
and has blinded the FBI to information that could well allow them to
have detected the intentions earlier of jihadists like the one in
Orlando.
I don't know for a fact, but I just wonder if the FBI, back when they
were vetting the Orlando shooter on two separate occasions because
things he said and did put him on the watch list, if they would have
been notified immediately when he purchased his firearms. Well, as we
now know, the FBI investigations were inconclusive and he was taken off
the watch list. I wonder if the FBI had access to a national security
letter that would allow them to gain information about the IP addresses
he had been visiting from his Internet service provider, along with
email addresses--again, not content because you can't do that without a
warrant issued by the FISA Court and a showing of probable cause--and
what he might have been viewing, such as YouTube videos of Anwar al-
Awlaki, who was responsible for radicalizing MAJ Nidal Hasan at Fort
Hood and others, and the information was sufficient enough that the
President of the United States authorized the use of a drone in order
to kill him on the battlefield so he could not kill other innocent
Americans--well, you get my point. We need to make sure the FBI has
access to all the information they can legally get their hands on, and
a good place to start is voting on the McCain-Burr amendment tomorrow
so the FBI can obtain information about what they are doing on the
Internet and who they are communicating with, and if it is justified,
to be able to then go to court and demonstrate probable cause
sufficient to actually then look at content in order to prevent
terrorist attacks.
I want to be clear about one thing. The FBI already has the power to
review financial records like Western Union transfers and the FBI
already has the power to review telephone records. They can access
telephone numbers, not the content of the conversation, again, unless
there is further authority issued by a court of law, but because of an
inadvertent omission in the law, the FBI can't readily access the exact
kind of information ISIS is using to recruit and radicalize violent
extremists lurking in our midst.
We have seen how difficult it is to identify these people before they
kill. Why in the world wouldn't we want to make sure we provide all the
information under our constitutional laws that could be available to
law enforcement to identify these people before they kill?
I introduced a similar proposal to the McCain-Burr amendment a few
weeks ago in the Judiciary Committee that would address this and
provide access
[[Page S4395]]
to this counterterrorism information. I am glad our colleagues, the
senior Senators from Arizona and North Carolina, have now offered this
amendment to the underlying legislation.
As the Presiding Officer knows, this provision, or one very similar
to it, was contained in the Intelligence reauthorization bill that had
the bipartisan support of everybody on the Intelligence Committee, save
one.
This is long overdue. It is bipartisan, and I think our failure to
act to grant this authority, particularly in the wake of this terrible
tragedy in Orlando, would be inexcusable. This is something the FBI
Director, appointed by President Obama, has said he needs. He said this
is their No. 1 legislative priority. President Obama's administration--
beyond just the FBI Director--supports it. What is stopping us from
providing this authority?
The truth is, these threats are at our doorstep. ISIS is using every
tool it has to spread fear and chaos, and we owe it to those on the
frontlines of our counterterrorism efforts to get them what they need
in order to more effectively counter these terrorists' efforts. It is
our duty to do something about it. Unlike some of the provisions we
voted on last night that would do nothing to stop people like the
Orlando shooter, this could actually stop them.
I am all ears if there are other ideas when it comes to advancing
commonsense proposals to fight terrorism at home and make our
communities safer, but this is a good place to start. I hope going
forward we can do a better job of providing the FBI and law enforcement
officials the resources they need to keep us safe. This is within our
grasp, and all we need to do is to take advantage of this opportunity
and have a strong bipartisan vote to adopt the McCain-Burr amendment
tomorrow morning.
I yield the floor.
Mr. LEAHY. Mr. President, after voting down sensible gun measures
earlier this week, Republicans want to change the subject. They want to
resort to scare tactics to divert the attention of the American people.
Now, they are offering an overbroad proposal that they argue is needed
to keep this country safe.
Let's be clear about what we need to stay safe. We need universal
background checks for firearms purchases. We need to give the FBI the
authority to deny guns to individuals suspected of terrorism. Senate
Republicans rejected those sensible measures last night, but we still
have the chance to give law enforcement real tools to fight terrorism
and violent crime. We should strengthen our laws to make it easier to
prosecute firearms traffickers and straw purchasers who put guns in the
hands of terrorists and criminals. And we need to fund the FBI and the
Justice Department so they have the resources they need to combat acts
of terrorism and hate. Those are the elements of the amendment that
Senators Mikulski, Baldwin, Nelson, and I have filed--and those are
among the actions that Congress could take to protect this country.
Instead Republicans are proposing to reduce independent oversight of
FBI surveillance of Americans' Internet activities and make permanent a
law that, as of last year, had never been used. And I should note that
this is the same law that the Republican leadership in the Senate
allowed to expire just last year.
In case there is any confusion, I will state it clearly: The McCain
amendment would not have prevented the Orlando attack.
The amendment would eliminate the requirement for a court order when
the FBI wants to obtain detailed information about Americans' Internet
activities in national security investigations. This could cover Web
sites Americans have visited; extensive information on who Americans
communicate with through email, chat, and text messages; and where and
when Americans log onto the Internet and into social media accounts.
Over time, this information would provide highly revealing details
about Americans' personal lives. The government should not be able to
obtain this information whenever it wants by simply issuing a subpoena.
Senator Cornyn and others have argued forcefully that we cannot
prevent people on the terrorist watch list from obtaining firearms
without due process and judicial review. They say we need an
independent decisionmaker; yet at the same time, they are proposing to
remove judicial approval when the FBI wants to find out what Web sites
Americans are visiting. The FBI already has authority to obtain this
information--if it obtains a court order under section 215 of the USA
PATRIOT Act. In an emergency where there is not time to go to court,
the USA FREEDOM Act allows the FBI to obtain this information before
getting judicial approval, so this amendment is unnecessary.
This amendment is opposed by major technology companies and privacy
groups across the political spectrum, from FreedomWorks to Google to
the ACLU. I ask unanimous consent that a letter from nearly 40
organizations and companies opposing this proposal be printed in the
Record at the conclusion of my remarks.
The Judiciary Committee also should study this proposal before it
proceeds. The Judiciary Committee has not held a hearing to examine
whether this expansion of the NSL statute is necessary or how it would
affect Americans' privacy and civil liberties.
Rather than trying to distract us from their opposition to
commonsense gun measures, Republicans should support actions that will
actually help protect us, like those in the amendment filed by Senator
Mikulski, Senator Baldwin, Senator Nelson, and myself. They should
support emergency FBI funding. They should support funding for the
civil rights division to help protect the LGBT community, the Muslim
American community, and the African-American community from hate crimes
and discrimination. And they should support my proposal to make it
harder for terrorists and criminals to evade background checks by
turning to firearms traffickers and straw purchasers. This is a
provision that I have developed with Senator Collins and that has been
strongly supported by law enforcement.
As we saw in San Bernardino, terrorists can acquire assault rifles by
simply using a friend to purchase the guns for them; yet prosecuting
such individuals for firearms trafficking has proven to be an extremely
difficult task. My proposal will fix these laws. It will provide law
enforcement the tools it needs to deter and prosecute those who traffic
in firearms, and it will help to close another glaring loophole in our
gun laws that allows terrorists and criminals to easily acquire
powerful firearms.
I urge Senators to oppose the McCain amendment and to support these
measures that will actually help keep our country safe.
There being no objection, the material was ordered to be printed in
the Record, as follows:
June 6, 2016.
Dear Senator: The undersigned civil society organizations,
companies, and trade associations strongly oppose an
expansion of the National Security Letter (NSL) statute, such
as the one that was reportedly included in the Senate's
Intelligence Authorization Act for Fiscal Year 2017 and the
one filed by Senator Cornyn as an amendment to the ECPA
reform bill. We would oppose any version of these bills that
included such a propsal expanding the government's ability to
access private data without a court order.
This expansion of the NSL statute has been characterized by
some government officials as merely fixing a ``typo'' in the
law. In reality, however, it would dramatically expand the
ability of the FBI to get sensitive information about users'
online activities without court oversight. The provision
would expand the categories of records, known as Electronic
Communication Transactional Records (ECTRs), that the FBI can
obtain using administrative subpoenas called NSLs, which do
not require probable cause. Under these proposals, ECTRs
would include a host of online information, such as IP
addresses, routing and transmission information, session
data, and more.
The new categories of information that could be collected
using an NSL--and thus without any oversight from a judge--
would paint an incredibly intimate picture of an individual's
life. For example, ECTRs could include a person's browsing
history, email metadata, location information, and the exact
date and time a person signs in or out of a particular online
account. This information could reveal details about a
person's political affiliation, medical conditions, religion,
substance abuse history, sexual orientation, and, in spite of
the exclusion of cell tower information in the Cornyn
amendment, even his or her movements throughout the day.
The civil liberties and human rights concerns associated
with such an expansion are compounded by the government's
history of
[[Page S4396]]
abusing NSL authorities. In the past ten years, the FBI has
issued over 300,000 NSLs, a vast majority of which included
gag orders that prevented companies from disclosing that they
received a request for information. An audit by the Office of
the Inspector General (IG) at the Department of Justice in
2007 found that the FBI illegally used NSLs to collect
information that was not permitted by the NSL statutes. In
addition, the IG found that data collected pursuant to NSLs
was stored indefinitely, used to gain access to private
information in cases that were not relevant to an FBI
investigation, and that NSLs were used to conduct bulk
collection of tens of thousands of records at a time.
Given the sensitive nature of the information that could be
swept up under the proposed expansion, and the documented
past abuses of the underlying NSL statute, we urge the Senate
to remove this provision from the Intelligence Authorization
bill and oppose efforts to include such language in the ECPA
reform bill, which has never included the proposed NSL
expansion.
Sincerely,
Access Now, Advocacy for Principled Action in Government,
American Association of Law Libraries, American Civil
Liberties Union, American Library Association, American-Arab
Anti-Discrimination Committee, Amnesty International USA,
Association of Research Libraries, Brennan Center for
Justice, Center for Democracy & Technology, Center for
Financial Privacy and Human Rights, CompTIA, Computer &
Communications Industry Association, Constitutional Alliance,
Demand Progress, Electronic Frontier Foundation, Engine.
Facebook, Fight for the Future, Foursquare, Free Press
Action Fund, FreedomWorks, Google, Government Accountability
Project, Human Rights Watch, Institute for Policy Innovation,
Internet Infrastructure Coalition/I2Coalition, National
Association of Criminal Defense Lawyers, New America's Open
Technology Institute, OpenTheGovernment.org, R Street, Reform
Government Surveillance, Restore the Fourth, Tech Freedom,
The Constitution Project, World Privacy Forum, Yahoo.
The PRESIDING OFFICER. The Senator from Maryland.
Mass Shooting in Orlando
Mr. CARDIN. Mr. President, I take this time to continue the
discussion as to the tragedy that occurred on June 12 in Orlando, FL.
The shooting occurred at a popular LGBT club, Pulse. The club owner,
Barbara Poma, lost her brother to the AIDS epidemic. The club was named
to remember a pulse that faded from this world far too early. Pulse was
not just a place to socialize, it was a refuge and a place of
acceptance and solidarity where members of the Orlando LGBT community
could be themselves without judgment.
The fact that an attacker would target this venue, especially during
Gay Pride Month, is a horrific tragedy and a senseless loss of human
life. My deepest sympathies are with those killed and injured in this
terrorist attack, along with their families and loved ones. My thanks
go out to the first responders who saved lives in the midst of such
danger.
This attack, and others like it in recent years, tears at our hearts
and leaves us angry, frustrated, and confused. We, as a nation, must
resolve to stop those who wish to do harm to Americans from committing
and encouraging acts of terror.
The Orlando shooter apparently subscribed to an extreme system of
beliefs that led him to carry out this heinous attack. No religion
condones or encourages such violence and killing. We must reject any
ideology that leaves room for discrimination and dehumanization to a
point where someone can commit these types of acts. No one should ever
fear for their life simply for being themselves or expressing who they
are as an individual. America's values of tolerance, compassion,
freedom, and love for thy neighbor must win out over hate, intolerance,
homophobia, and xenophobia.
The time for talk is over. We, as a nation, as a community, and as an
American family, must take actions to change minds, hearts, and,
finally, change policies. The attack in Orlando was a terror attack and
a hate crime. We can stop others and save lives by taking immediate
action.
I was disappointed we missed opportunities to do that yesterday with
sensible gun safety amendments. I cosponsored the Murphy amendment,
which would have created a system of universal background checks for
individuals trying to buy a gun. The amendment would have ensured that
all individuals who should be prohibited from buying a firearm are
listed in the National Instant Criminal Background Check System and
would require a background check for every firearm sale. We know there
are loopholes today. Why do we allow those loopholes to continue? It
should not matter whether you buy a gun at a local gun store or at a
gun show or on the Internet, you should have to pass a background check
so we can make sure guns are kept out of the hands of people who should
never have one. This amendment would have helped keep guns out of the
hands of convicted felons, domestic abusers, and the seriously mentally
ill, who have no business buying a gun.
Studies have shown that nearly half of all current gun sales are made
by private sellers who are exempt from conducting background checks.
It makes no sense that felons, fugitives, and others who are legally
prohibited from having a gun can easily use a loophole to buy a gun.
Once again, the use of a universal background check will have no
impact on the legitimate needs of people who are entitled to have a
weapon, but universal background checks could and would help us keep
our communities safe by helping us keep weapons out of the hands of
criminals and those who have serious mental illness and domestic
abusers. We need to stop their ability to easily be able to obtain a
weapon.
Universal background checks are strongly supported by the American
people. Most background checks can be completed very quickly and do not
inconvenience a purchaser at all.
To my colleagues who have reservations about this legislation, let me
cite the Heller decision. In June 2008 the Supreme Court decided the
case of District of Columbia v. Heller. The Court held that the Second
Amendment protects an individual's right to bear arms rather than a
collective right to possess a firearm. The Court also held that the
Second Amendment right is not unlimited, and it is not a right to keep
and carry any weapon whatsoever in any manner and for any purpose.
Justice Scalia wrote for the Court in that case:
Nothing in our opinion should be taken to cast doubt on the
longstanding prohibitions on the possession of firearms by
felons and the mentally ill, or laws forbidding the carrying
of firearms in sensitive places such as schools and
government buildings, or laws imposing conditions and
qualifications on the commercial sale of firearms.
That was Justice Scalia for the Court.
Justice Scalia recognized Congress's right to make sure those who are
not qualified to own a firearm do not get that firearm. We have an
obligation to make sure that background checks are effective so as to
keep out of the hands of criminals and those who have serious mental
illness the opportunity to easily be able to obtain a firearm.
The legislation pending before us in the Senate is fully consistent
with the Heller decision. That amendment would have been fully
consistent with the Heller decision and Justice Scalia's opinion.
I know we can protect innocent Americans while still protecting the
constitutional rights of legitimate hunters and existing gun owners. We
should take that action on behalf of the American people.
There was a second amendment I cosponsored that unfortunately was
rejected yesterday--the Feinstein amendment--that would close the
terror gap. If you are not safe enough to fly on an airplane, you
shouldn't be able to buy a gun. The Feinstein amendment would give the
Attorney General the authority to block the sale of guns to known or
suspected terrorists if the Attorney General has reason to believe the
weapons would be used in connection with terrorism. The amendment would
have ensured that anyone who had been subject to a Federal terrorism
investigation in the past 5 years would have been automatically flagged
with the existing background check system for further review by the
Department of Justice.
Note that under this amendment, being included on a terrorist watch
list is not by itself a sufficient justification to deny a person the
right to buy a firearm. The Attorney General may deny that weapon
transfer only if she determines that the purchaser represents a threat
to public safety based on a reasonable suspicion that the purchaser is
engaged or has engaged in conduct related to terrorism. So there is a
standard there.
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A recent GAO report concluded that approximately 90 percent of
individuals who were known or suspected terrorists were able to pass
background gun checks. This amendment would have closed this loophole
and would have reduced the risk of a terrorist being able to legally
acquire a firearm.
Under current law, individuals who are known or suspected terrorists
and do not fall into one of the nine prohibited purchaser categories
can legally purchase a weapon. While the FBI is notified when
individuals on the terrorist watch list apply for a background check
through the National Instant Criminal Background Check System, it does
not have the authority to block the sale.
The Feinstein amendment contains remedial procedures so that
individuals get the reason for denial, the right to correct the record,
and the right to bring action to challenge the denial. In other words,
there is due process in the Feinstein amendment.
So I was disappointed that the two amendment chances we had yesterday
were not approved by the Senate. I think both would have helped in
making our communities safer.
Congress has an obligation to act. As I have indicated before, we
need to act. Inaction is not an option. The President of the United
States has already acted to the extent he is permitted using his
Executive authority. Many of our States have acted as well, including
my own State of Maryland, but we need a national law that applies to
all 50 States to stop criminals, terrorists, domestic abusers, and
others who should not get their hands on a gun from simply driving to a
nearby State with less restrictive gun laws and being able to legally
acquire a weapon.
I encourage my colleagues to continue to work on compromise
legislation on the issue of universal background checks and terror
watch lists. Congress should also act to ban assault-type weapons,
which have no legitimate civilian use, and we should ban the sale of
high-capacity magazines which only increase the level of carnage in a
mass shooting.
The time for action is now. We cannot wait.
Mr. President, with that, I yield the floor.
The PRESIDING OFFICER. The Senator from West Virginia.
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