[Congressional Record Volume 162, Number 103 (Monday, June 27, 2016)]
[Senate]
[Pages S4587-S4588]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
INTELLIGENCE AUTHORIZATION BILL
Mr. WYDEN. Mr. President, I want to take a few minutes tonight to
discuss the Intelligence authorization bill for fiscal year 2017. The
Senate has been asked to provide unanimous consent to move forward on
this legislation, and I have objected to doing that and want to take
just a few minutes to outline why I feel very strongly about this.
The reality is, this legislation contains a number of valuable
provisions, but once again it is being driven by the same issues the
Senate looked at last week, and that was the McCain amendment, which
involved a major change with respect to national security letters. My
colleague is a valuable member of the Intelligence Committee and knows
what I am talking about.
But to set the backdrop is again, I want it understood how important
it is to make clear that it is a very dangerous time. Those of us who
sit on the Intelligence Committee are acutely aware of that. A couple
of times a week we go into that special room and come away with a very
clear recognition that there are people out there who do not wish our
country well. So that is not in question. This is a dangerous time.
Given these dangers, it is especially important--critically important--
that law enforcement and intelligence authorities have the tools they
need to protect the American people.
Tonight, I wish to start with where we really left off with the
amendment from the Senator from Arizona, the McCain amendment involving
national security letters, because that amendment deals with the very
same concern that has led me to object to the Intelligence
authorization bill tonight.
I don't take a back seat to anybody--not anybody--in terms of making
sure our intelligence and law enforcement officials have the tools they
need to protect our country at a dangerous time. That is why in 2013, I
began working for it then, and we got it into the USA FREEDOM Act. I
wrote the provision that became section 102 of the USA FREEDOM Act. It
said that when our government--the FBI or our intelligence and law
enforcement community--believed it has to move quickly and it has to
move immediately, our government could do that. It could go get the
information that has been in question--the email materials, the text
message logs, the chat records, and all of these digital
communications. Under section 102, the government could move
immediately to get this information and then come back after the fact
and settle up with the court. Never once has the court denied the
government.
I recall that during the debate over the McCain amendment, the
distinguished chairman of the Intelligence Committee said that he was
concerned that the FBI might have to wait around for a month--no way,
absolutely no way, out of the question. Under section 102, there is not
going to be any dawdling. There is not going to be waiting around. The
government can move and move immediately to protect the American
people.
Given that the government has those tools for the FBI and
intelligence officials--making sure that we have the tools needed to
protect the security and well-being of the American people--that is a
reason for being very careful about thinking through big changes in
these national security letters and what the changes would be,
specifically. This was in the McCain amendment. It is in the
Intelligence authorization bill. An FBI field office could issue a
national security letter, in effect, administratively. It is an
administrative subpoena without any court oversight. For example, the
national security letters could be used to collect what are called
electronic communication transaction records. This would be email, chat
records, and text message logs.
I have had Senators come up to me to ask me about whether this could
be true. When I was responding to questions at home about that this
weekend, folks or people asked: Does this really mean that the
government can get the Internet browsing history of an individual
without a warrant, even when the government has the emergency authority
if it is really necessary?
The answer to that question is: Yes, the government can. The
government can get access to Web browsing history under the
Intelligence authorization legislation, under the McCain amendment, and
they can do it without getting a warrant--even when the government can
go get it without a warrant when there is an emergency circumstance.
The reality is Web browsing history can reveal an awful lot of
information about Americans. I know of little information that could be
more intimate than that Web browsing history. If you know that a person
is visiting the Web site of a mental health professional or a substance
abuse support group or a particular political organization or a
particular dating site, you know a tremendous amount of private,
personal, and intimate information about that individual. That is what
you get when you can get access to their Web browsing history without a
warrant, even, as I have said, when the government's interest is
protected in an emergency.
The reality is that getting access to somebody's Web browsing history
is almost like spying on their thoughts. This level of surveillance
absolutely ought to come with court oversight. As I have spelled out
tonight, that is possible in two separate ways. There is the
traditional approach with getting a warrant. Then under section 102,
which I wrote as part of the USA FREEDOM Act, the government can get
information when there is an emergency and come back later after the
fact and settle.
The reality is the President's surveillance review group has said
that they believe court oversight should be required for this kind of
information.
In effect, now we have some law enforcement and intelligence
officials saying that we ought to go in exactly the opposite direction.
By the way, George W. Bush agreed that we ought to be careful about
gathering this information. He didn't want this particular power.
Maybe somebody could argue that, well, intelligence and law
enforcement officials ought to be able to do this because it is more
convenient for them. To tell you the truth, if we were talking about
convenience or protecting the American people in an emergency, I would
be pretty sympathetic to the government's argument. But that is not the
choice. As to the government's interest, given the safety of the
American people being on the line, the government goes to get that
information immediately--the Web browsing history, the chat records,
and the email. The government gets it immediately under the specific
language of section 102.
What this really comes down to is that we have had this horrible
tragedy in Orlando. So we are all very concerned about the safety and
the well-being of the American people. When we are home, there is no
question--as I am sure it is in the case of the Presiding Officer of
the Senate, my colleague from Ohio, and myself--that the American
people want policies that protect their security and their liberty.
They want policies that do both. Frankly, they don't think they are
mutually exclusive. They think the government ought to be doing both.
After a tragedy--and you can almost set your clock by it--
increasingly, proposals are being brought up that really don't do much
of either. They don't do much to advance security. In this case, you
protect people's security with that emergency authority when the well-
being of our people is on the line and the public wants their liberties
protected. They are certainly going to be very concerned about someone
being able to see their Web browsing history with an administrative
subpoena and no court oversight.
[[Page S4588]]
I am going to touch on one other section of the Intelligence
authorization bill that concerns me, but I will say that I supported
that emergency authority very strongly. I was the first to propose it
in 2013. I did so because I said I wanted to make sure--since I am one
of the longer serving members of the Intelligence Committee, and I am
very pleased to have the Presiding Officer of the Senate on it--and I
wanted to be able to say that my focus has been to show that security
and liberty are not mutually exclusive. We can do both. I think, with
what we have outlined this afternoon, we can, in fact, do both. That is
why section 102 of the USA Freedom Act is so important. It spells out
how and when the well-being and safety of the American people is on the
line. There isn't anybody going to be dawdling around. What the
distinguished chairman of the Intelligence Committee said about people
waiting for a month to get a national security letter is not going to
happen--not if you use section 102. We are making it clear how
important security is. But we are also saying that we are not going to
needlessly erode these sacred and vital constitutional protections of
the American people, which is what you would be doing if a field office
of the FBI, administratively and without court oversight, could go out
and scoop up scores of browsing records.
That is why I have objected to giving unanimous consent to the
intelligence authorization bill. We always do it publicly. That is why
I am on the floor tonight.
I will tell my colleagues that this bill, on the key issue of
national security letters, is essentially a redo of the vote that took
place last week on the McCain legislation.
I close by saying that while the Intelligence authorization bill does
contain other provisions that I think are quite constructive, I am
troubled that the bill also would erode the jurisdiction of the
independent privacy board for the second year in a row. Here, in
particular, is where we all want to concentrate on U.S. persons. That
is what is so important--focusing on U.S. persons. At a time when
telecommunications systems around the world are beginning to merge--and
this will increasingly be the case in the digital domain--the
individual's U.S. or non-U.S. status is not always readily apparent. So
I am concerned about some of the restrictions that are in the
authorization, as well that I think they really ignore the way in which
telecommunications systems have changed around the world and the
difficulty in recognizing quickly an individual's U.S. or non-U.S.
status.
With that, I note our friend and colleague is on the floor to give
his remarks.
I yield the floor.
The PRESIDING OFFICER. The Senator from Ohio.
Mr. BROWN. Mr. President, I appreciate the always good insight from
the senior Senator from Oregon, my colleague on the Finance Committee.
I say thank you to Senator Wyden.
____________________
