[Congressional Record Volume 162, Number 96 (Thursday, June 16, 2016)]
[Senate]
[Pages S4291-S4292]
USA FREEDOM ACT
Mr. WYDEN. Mr. President, in the aftermath of the horrific tragedy in
Orlando, Americans are understandably concerned about whether law
enforcement and intelligence officials have the tools they need to keep
our people safe. I share these concerns and have for quite some time.
In 2013, I proposed that the government be authorized to obtain
phone, email, and other records immediately in emergency situations and
then after the fact come back for court review. That proposal I made in
2013 became law as part of the USA FREEDOM Act--it is section 102 of
the USA FREEDOM Act--and as of today, that legislation I authored gives
the FBI more authority to move immediately when they believe it is
essential to protect the safety and well-being of Americans and our
families.
I don't take a backseat to anybody when it comes to supporting
efforts that are going to do everything possible to make Americans
safer in their communities. So right now--and this is so often the case
after a tragedy--when Americans want to be safer and they want their
liberties, all too often proposals are advanced that in so many
instances don't do much of either.
It is for that reason that I have come to the floor to express my
concern about the sweeping surveillance amendment that was proposed
this morning by the senior Senator from Texas. In my view, it is
important for colleagues to see that this proposal would dramatically
and unnecessarily expand the government's ability to conduct
surveillance of Americans without court oversight.
In my judgment, it would not make our country any safer. The real
implications are that it could significantly undermine the
constitutional rights of law-abiding Americans, largely to save some
paperwork for law enforcement officials.
As was described on the Senate floor this morning, this amendment
would authorize individual FBI field offices to demand Americans' email
and Internet records simply by issuing what is called a national
security letter, which means there really is no court oversight
whatsoever.
This authority currently exists for phone records, and law
enforcement officials have repeatedly suggested that it would be
convenient for email and Internet records to be collected in the same
way. The FBI has not suggested that they are currently unable to obtain
these records in counterterror investigations. Law enforcement
officials have simply been arguing that it would be more convenient to
operate without judicial oversight. I find this position very troubling
because I don't see anything in the writings of the Founding Fathers
that says convenience alone should justify a dramatic erosion of the
constitutional rights of law-abiding Americans.
It is important to understand that this sweeping expansion of
surveillance authorities is not necessary. If FBI officials have reason
to suspect an individual is connected to terrorism or espionage, they
already have the ability to access that person's email and Internet
records by simply obtaining an order in the Foreign Intelligence
Surveillance Court. These orders can be issued in secret and require
relatively little evidence. The FBI just needs to assert that the
records are ``relevant to an investigation,'' and that is not difficult
to do. But requiring the approval of an independent judge provides an
important chapter against the abuse or misuse of this authority. By
contrast, national security letters are not reviewed by a judge unless
a company that receives one attempts to challenge it.
As I indicated earlier this afternoon, I appreciate the FBI's
interest in obtaining records about potential suspects quickly, but my
view is that Foreign Intelligence Surveillance Court judges in the
typical situation are very capable of reviewing and approving requests
for court orders in a timely fashion, and that is why I made mention of
it.
If the government thinks that there is an emergency situation and
that time is so critical, the government can use that section of the
USA FREEDOM Act that I authored, Section 102, to obtain records
immediately in an emergency situation and then go seek court review
after the fact.
As I indicated, I have been supportive of this for quite some time,
but I think giving the government the authority to move in emergency
situations is very different from giving the government substantial new
surveillance authority just because some officials don't like doing
paperwork. If the FBI's own process for reviewing orders is too slow,
then the appropriate solution is administrative reforms, not a major
expansion of government surveillance authorities.
While this amendment would not apply to the text of emails, it would
allow the FBI a wide variety of information, including records of whom
individuals exchange emails with and when, as well as individuals' log-
in history, IP addresses, and Internet browsing history. This sort of
surveillance can clearly reveal an extensive amount of information
about individual Americans. Our Founding Fathers rightly argued that
these kinds of intrusive searchs ought to be approved by independent
judges.
At this point, I believe it is worth noting that President George W.
Bush's administration reached the same conclusion that I have described
this afternoon. In November of 2008, the Justice Department's Office of
Legal Counsel advised the FBI that national security letters could only
be used to obtain certain types of records, and this list did not
include electronic communication records. The FBI has, unfortunately,
not adhered to this guidance and has at times continued to issue
national security letters for electronic communications records. A
number of companies that have received these overly broad national
security letters have rightfully challenged them, as I have indicated,
as improper. Broadening the national security letter statute to include
electronic communication transaction records would be a significant
expansion of warrantless surveillance authority.
Unfortunately, the government's track record with its existing
national security letter authorities includes a substantial amount of
abuse and misuse. These problems were extensively documented by the
Justice Department's inspector general in 2007, 2008, 2010, and 2014.
In my judgment, it would be reckless to expand this particular
surveillance authority when the government has so frequently failed to
use its existing authorities responsibly.
In 2013, President Obama's surveillance review group looked at the
national security letter statute. This group included a number of
distinguished national security leaders, including former White House
counterterrorism adviser Richard Clarke and former Acting CIA Director
Mike Morell. They determined--and I think
[[Page S4292]]
what is so noteworthy is that at a time when the President assembled
practically an NBA All-Star team of counterterror leaders, this group
determined that national security letter authority ought to be
narrowed, not expanded. They were making a judgment to counter to the
senior Senator from Texas, and they felt they ought to go the other way
and be more cautious about how it is used.
These leading national security officials, the names of whom I have
just given, stated in their report that national security letters have
been, in their view, highly controversial and noted that there have
been ``serious compliance issues on the part of the government.'' They
concluded the following: ``For all the well-established reasons for
requiring neutral and detached judges to decide when government
investigators may invade an individual's privacy''--their words and not
mine--``there is a strong argument that [national security letters]
should not be issued by the FBI.''
National security letters was what the description of the issue was
all about. In the judgment of these experts, the government should seek
the approval of a judge the way our Founding Fathers intended.
I want it understood that I would strongly oppose the surveillance
amendment filed this morning. My view is that it would erode our core
constitutional rights without making our country safer.
All over the country right now, Americans are asking what can be done
to make our country safer. This morning, for example, we had the CIA
Director, Mr. Brennan, in the Intelligence Committee, and I pointed out
that one of the things that help Americans be as safe as possible is
strong encryption for their smartphones. Those smartphones have
people's different transactions, such as medical and financial
information. Their whole life is in those smartphones. If you weaken
strong encryption and require companies--as several of our colleagues
want to do--to build back doors into these digital products, Americans
are going to be less safe.
For example, a number of the smartphones have a location tracker so
parents can keep tabs on their youngster. Well, if you weaken
encryption and weaken the location tracker, you are pretty much giving
a gift to pedophiles because it will be easy to track youngsters as a
result of weakening encryption.
We had a discussion about it this morning. The comment I was
concerned about in particular this morning was when I said ``Hey, if we
weaken encryption in the United States, the reality is that terrorists,
hackers, and others will go overseas, where there are hundreds of
products with strong encryption,'' it was the view of the CIA Director
that that was ``theoretical.'' So I was forced to correct that later in
the course of the day to say that some of the leading experts in cyber
security said that this is not theoretical.
The reality is that there are hundreds of products overseas with
strong encryption. So think about that one. What we would be doing if
we weakened encryption is we would be adopting a policy that would
leave our people less secure and their liberties more at risk right at
the time when they are saying, after the horrific tragedy in Orlando,
that they want better policies to promote their safety and make sure
their liberties are kept.
This is a debate we are going to have in several forms. We will have
them in committee rooms and on the floor of the Senate. I just want it
understood that the reason I am opposing what the senior Senator from
Texas talked about today is that I think it flies right in the face of
what I have described. It does nothing to make us safer, and it puts
our liberties at risk, much as the distinguished panel that was put
together by the President--all these outstanding counterterror
officials--said when they expressed concern about the whole future of
national security letters.
There is a way to do this right, and I would submit that is what we
did in Section 102 of the USA FREEDOM Act. It was something I had
talked about with the President on several occasions. I am willing to
say what I said but not what the President said.
I have repeatedly said to the government that if the government
doesn't have enough authority in emergency situations to protect the
American people, I will use my ability as a senior member of the
Intelligence Committee to make sure they have that authority. We did
that in the USA FREEDOM Act. The government can move immediately to
collect phone and email records and then come back later to go through
the court review process. That is the kind of model we ought to use,
not what we heard about this morning from the senior Senator from Texas
that would expand government surveillance authority, put our liberties
at risk, and not make our country safer.
I am sure this will be a topic of extensive discussion on the Senate
floor next week. I just wanted to take this opportunity to outline my
views on the topic.
With that, I yield the floor.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The senior assistant legislative clerk proceeded to call the roll.
Mr. COONS. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
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