[Congressional Record Volume 164, Number 10 (Wednesday, January 17, 2018)]
[Pages S213-S214]


  Mr. McCONNELL. Mr. President, now, on another matter, the Senate will 
soon vote to reauthorize important provisions of the FISA Amendments 
Act. This includes section 702, one of the most important tools used by 
our national security community to combat terrorism and to keep 
Americans safe. It gives our law enforcement and intelligence 
communities the ability to collect communications from foreign 
terrorists on foreign soil who wish harm to America and our allies. 
This capability is absolutely vital to the success of defense and 
intelligence operations.
  To be absolutely clear, section 702 does not allow the targeting of 
American citizens, nor does it permit the targeting of anyone of any 
nationality who is known to be located here in the United States. Five 
years ago, Congress reauthorized the title with overwhelming bipartisan 
support. Today, it is time to do so one more time.
  It is no secret that the world remains dangerous. Terrorist groups 
remain as intent today as they did on September 11, 2001, on harming 
Americans and those working with us overseas. As the tragedies of that 
day become a more distant memory, we cannot grow lax and deny our 
defense and intelligence communities the tools and resources they 
require to prevent future attacks.
  I look forward to renewing the bipartisan consensus on this issue and 
voting to reauthorize this important provision very soon.

[[Page S214]]

[Congressional Record Volume 164, Number 10 (Wednesday, January 17, 2018)]
[Pages S215-S225]


  Mr. LEE. Madam President, the Founding Fathers knew and understood 
well what it was like to live in a dangerous world. When America was 
founded, we were threatened by foreign adversaries. The military might 
of the United States was feeble compared to the great powers of that 
day. Yet the Founders insisted on a Constitution that would protect the 
civil liberties of the American people. They knew it was possible to 
defend the homeland and Americans' rights at the same time. It still 
  The War of Independence was fought in part because King George III 
abused general warrants that let his officers snoop through the papers 
and property of law-abiding subjects. The abuse of general warrants and 
the use of things like writs of assistance prompted the American people 
into action, representing that their fundamental liberties were at 
stake. That is part of what ushered in the American Revolution.
  The Fourth Amendment to the Constitution was put in place 
specifically to protect these very kinds of liberties and to protect 
the American people against this very type of snooping. The Fourth 
Amendment does this by prohibiting unreasonable searches and seizures 
of Americans' persons and property. The very wording of the Fourth 
Amendment itself recognizes that this is part of what our security 
means. It is not just that we are protecting privacy; we are protecting 
privacy by protecting our security, to make sure that we are secure in 
our persons, our papers, houses, and effects.
  The Fourth Amendment also requires search warrants to be limited in 
scope and to be based on evidence producing probable cause that a crime 
has been committed. Those warrants also have to be particularized so 
that they are not open-ended, so that they can't be applied to any and 
every circumstance.
  Critics of the Fourth Amendment complain about it. They complain 
about it from time to time as if it were somehow an annoyance that has 
to be dealt with, ultimately circumvented. Some people refer to it even 
as something of a security threat in and of itself. This is wrong. Our 
Nation's history should itself be enough to convince us that the Fourth 
Amendment is no annoyance. It is an essential safeguard of our liberty 
in the face of a vast, powerful, and frequently overreaching 
government. Just think of how much more powerful the government has 
become in the age of supercomputers and the internet. The kinds of 
abuses endured by the founding generations will be repeated on an even 
greater scale if we are not vigilant in checking the power of 
  Last night, this body--the U.S. Senate--voted to close debate on a 
bill to reauthorize section 702 of the Foreign Intelligence 
Surveillance Act. This program may sound dry. It may sound 
inconsequential or even uncontroversial to many people's lives. But 
supporters and critics who are familiar with it often agree that it is 
anything but.
  FISA's section 702 authorizes the intelligence community to spy on 
suspected foreign terrorists. Not many people are troubled by that 
aspiration. The intelligence-gathering that this authorizes is a 
valuable task, and it is one that helps protect the homeland from bona 
fide threats from outside the United States. However, FISA 702 also 
allows the collection of incidental intelligence about American 
citizens who communicate with foreign suspects. Once the intelligence 
community has collected this incidental information about Americans, 
domestic law enforcement can access the information for their own 
investigations without first obtaining a search warrant, as 
contemplated under our constitutional structure. In other words, FISA 
702 opened a backdoor to government spying on American citizens. This 
incidental spying is a different matter altogether, and it does 
implicate the Fourth Amendment--certainly the spirit of the Fourth 
Amendment if not also the letter thereof
  It is profoundly worrying that the government maintains vast 
collections of information about American citizens, no matter how that 
information is collected, incidentally or intentionally. It is likewise 
worrying that the government cannot or will not say, specify, list 
exactly how many Americans have been subjected to government snooping 
under this provision.
  Surveillance programs like this one may be implemented with the best 
of intentions--and I am willing to assume for purposes of this 
discussion that they are with the best of intentions here--but they 
themselves provide the raw material that overzealous bureaucrats can 
use to snoop on anyone the government doesn't like.
  When we speak of the United States, when we speak of our government 
agencies, we are not speaking of an omniscient force, something that 
can only act for benevolent reasons. Our governments, by necessity, are 
run by fallible, mortal individuals. No matter how patriotic might be 
the goals underlying this law or the agencies that implement it, at the 
end of the day, a human being is in control of each and every action 
taken under this law.
  So maybe, you might say, the subjects of this type of government 
surveillance are in fact overwhelmingly threats to the public. But can 
you guarantee that is the case? And if it is the case today, can you 
guarantee it will always be the case? Can you be so sure that tomorrow 
or the next day or the next year or in a few years from now or decades 
from now, that will also be the case? What if the next time, the 
subject is a critic of the government, or perhaps the subject is a 
petty political enemy of someone charged with implementing this 
  History cannot reassure us that this or any other surveillance power 
will always be used for good. It is not difficult, for that matter, to 
fathom hypothetical scenarios in which this could come about. Imagine, 
for example, a political candidate disliked by someone with authority 
to do a so-called backdoor search of a section 702 database. Imagine 
that someone with that authority dislikes that political candidate and 
decides to go looking for dirt on that political candidate, finds dirt 
on that political candidate, and then perhaps decides to leak that same 
information--unlawfully accessed by this individual acting pursuant to 
this program. This might be against all sorts of department protocols. 
It might be against the policy of those same agencies charged with 
administrating this statute. But the fact that we can't rule it out, 
the fact that it is not clear that this couldn't happen, ought to be 
concerning to every single one of us.
  The only check on this frightening power is the FISA Court, which 
rules in near total obscurity about what the government is allowed to 
collect. I say the FISA Court is the only check because Congress 
certainly isn't acting like a credible check on this authority.
  Not long ago, the House handed us a bill that would reauthorize FISA 
section 702 for another 6 years, and I am sorry to report that many of 
my colleagues in the Senate are forcing this bill through as is, in the 
same condition as we received it from the House of Representatives, 
without a single change from the bill the House sent us, without any 
amendments to protect Americans against warrantless, backdoor searches 
by the government about U.S. citizens on U.S. soil.
  I believe that Americans' Fourth Amendment rights are worth much more 
due diligence than that. Instead of simply rubberstamping FISA 702 
through the bill that the House sent us, this body could have 
strengthened it by voting against cloture, which would have opened up 
the bill for amendments.
  To be clear, a vote against cloture would not have been a vote 
against FISA section 702. It would not have ended the program or 
jeopardized our Nation's ability to spy on suspected foreign 
terrorists. In fact, as far as I know, not one of the Members of this 
body who voted against cloture would even support such an outcome. Not 
one of us, as far as I am aware, would like to see FISA end. What we 
would like to see is for amendments to at least be considered, to be 
debated, to be discussed by the people's elected representatives in 
this body to make sure that we have achieved the proper balance between 
the power the government desires and the security and privacy of the 
American people. A vote

[[Page S225]]

against cloture would have allowed this body to improve FISA section 
702 through a legitimate amendment process--one that we, unfortunately, 
are being denied this week.
  You see, one of the reasons why it is important, as we consider this, 
to allow for amendments is that this law comes up for reauthorization 
only so often. I think the American people legitimately would expect 
that when it comes up, we would actually have an open, honest debate 
and discussion; that we would do more than simply rubberstamp what the 
other Chamber has already passed; that we would ask some difficult but 
important questions about the rights of the American people relative to 
this program.
  Had we voted down cloture, had we decided not to vote to end debate, 
this would have given us an opportunity to protect Americans' safety 
and their constitutional rights, not one or the other. It wouldn't have 
put us in this awful Hobson's choice scenario, where you have to choose 
to protect one or the other.
  What, you might ask, may some of these possible changes to section 
702 of the Foreign Intelligence Surveillance Act have looked like? They 
would look a lot like the provisions contained in the proposed USA 
Liberty Act, which Senator Leahy and I introduced last year. The USA 
Liberty Act would tighten this standard the government must meet in 
order to collect and access information on you, pursuant to section 
702. This safeguard, and any of the other provisions contained in the 
USA Liberty Act, would be worthy additions to FISA 702.
  These changes would not restore respect for the Fourth Amendment 
overnight. I believe it will take many more battles with the entrenched 
interests within government to achieve that, but they would be steps in 
the right direction.
  If history is our guide, any unlimited, unaccountable power we hand 
to the government ultimately will be used against the people. In FISA 
section 702, the government has a vast grant of power--a digital-aged 
general warrant--to hoard untold terabytes of information about 
American citizens.
  I hope we can work together in the coming months to improve this 
surveillance program and vindicate what the Founders so clearly knew; 
that our safety does not have to come at the expense of our rights; 
that our security and our privacy are not at odds with one another but 
that our privacy and our security are one and the same. Our security is 
part of our privacy and vice versa. We can protect both. We can walk 
and chew gum at the same time. We can honor the Constitution and 
protect the rights of the individual while simultaneously protecting 
the security of the greatest civilization the world has ever known. We 
can do better, and we must.
  I yield the floor.


[Congressional Record Volume 164, Number 10 (Wednesday, January 17, 2018)]
[Pages S225-S247]


  Mrs. FEINSTEIN. Mr. President, I and the Acting President pro tempore 
have been on the Select Intelligence Committee for a considerable 
period of time--I much longer than he. However, I think we are both 
well experienced with the subject, and I would like to make a few 
comments on section 702. For 6 years, I was chairman of the committee, 
and the ranking member for 2 years. What I came to see is that, in my 
view, there was no more significant content collection program than 
section 702, and I want to give a couple of examples and explain why I 
think it is so important that 702 be reauthorized.
  A little more than a year ago, on December 31 of last year, 
approximately 500 people gathered in a popular Turkish nightclub on the 
banks of the Bosphorus to celebrate New Year's Eve. Tragically, shortly 
after midnight, a gunman entered that club and opened fire, killing 39 
innocent civilians and wounding 69 others. At least 16 of those killed 
were foreign nationals, including an American who was shot in the hip. 
Many people inside reportedly jumped into the water in an attempt to 
protect themselves from the gunfire. After committing this act, the 
gunman changed his clothes and fled the scene.
  Almost immediately, Turkish law enforcement and American intelligence 
officials began cooperation to identify and locate the shooter. Part of 
that effort included intelligence collection under section 702 of the 
Foreign Intelligence Surveillance Act. The information derived from the 
702 collection ultimately led the police to an apartment in the 
Esenyurt district neighborhood of Istanbul. There, law enforcement 
arrested an Uzbek national, named Abdulkadir Masharipov, at a friend's 
apartment, along with firearms, ammunition, drones, and over $200,000 
in cash.
  Thanks to the work of Turkish and American law enforcement and 
intelligence agencies, just 16 days after this horrific attack, police 
had the prime suspect in custody. Mr. Masharipov is currently awaiting 
trial in Turkey.
  Section 702 of FISA is the most important foreign content collection 
program that we have. It allows the government to quickly and 
efficiently collect phone call and email content from non-U.S. persons 
who are located outside of the United States. Information collected 
under section 702 informs nearly every component of our Nation's 
national security and foreign policy.
  Section 702 was used by the CIA to alert a partner nation to the 
presence of an al-Qaida operative who was turning into a cooperating 
source. Section 702 was used to intercept al-Qaida communications about 
a U.S. person seeking instructions on how to make explosives in the 
United States. It was also used to understand proliferation networks 
used by adversary nations to evade sanctions, including military 
communications equipment.
  In 2014 the Privacy and Civil Liberties Oversight Board, or what we 
call PCLOB, reported: ``Over a quarter of the NSA's reports concerning 
international terrorism include information based in whole or in part 
on section 702 collection, and this percentage has increased every year 
since the statute was enacted.''
  The law expressly prohibits the targeting of U.S. persons or the 
targeting of persons located in the United States. Section 702 is a 
foreign content collection program.
  I also believe it is equally important that reauthorization include 
reforms to ensure that the program continues to operate consistently 
with the statute's original intent and our Constitution.
  Perhaps the most important among these reforms is the issue of U.S. 
person queries. U.S. person queries refer to the process by which the 
government searches the 702 database for the content of U.S. persons' 
  U.S. persons cannot be targeted under section 702, but they can be 
collected incidentally if the individual is communicating with a non-
U.S. person who is located overseas and is targeted under section 702. 
If an American's communications are collected incidentally, they are 
added to the 702 database. The government can later search, or query, 
that database for any American and gain access to the contents of any 
phone calls or emails that may have been swept up in the section 702 
collection. Each of these queries results in the government's accessing 
the contents of a U.S. person's communications without ever going 
before a judge or securing a warrant.
  The Fourth Amendment requires the government to obtain a warrant 
based on probable cause before accessing those communications, and the 
Supreme Court has been clear: Americans have a right to privacy in the 
content of their phone calls and emails. The same standard should apply 
to communications incidentally collected under section 702.
  During the Senate Intelligence Committee's markup of section 702, I 
offered an amendment with my colleague from California, Senator Harris, 
that would require the government to obtain a warrant from the Foreign 
Intelligence Surveillance Court prior to accessing the content of any 
U.S. person's communications collected under section 702. 
Unfortunately, our amendment did not succeed in the committee.

[[Page S226]]

  I have also filed our warrant requirement as a floor amendment to the 
bill that is currently under consideration. This amendment has been 
cosponsored again by Senator Harris as well as by Senators Leahy and 
Lee. I really do believe that a warrant requirement will eventually be 
important as people become more concerned with the need to reform some 
of these longstanding provisions.
  The House-passed bill that is currently before us has a number of 
positive reforms. First, it does have limited warrant authority that 
would require the FBI to obtain a warrant from the Foreign Intelligence 
Surveillance Court prior to accessing the contents of the U.S. person's 
communications that are associated with a query that was not related to 
foreign intelligence or national security. The warrant provision in 
this bill is not as strong as the one I offered in committee, but it 
was the result of a bipartisan compromise in the House, and I do 
believe it is a step in the right direction.
  The House bill also includes other important reforms. It establishes 
a required congressional review process before the government is 
permitted to restart ``abouts'' collection. It requires the DNI to 
declassify minimization procedures. It provides greater flexibility to 
the Privacy and Civil Liberties Oversight Board to meet and hire staff. 
It also directs the inspector general to assess the FBI's section 702 
practices so that we can continue to provide oversight for that 
  In conclusion, section 702, by its numbers and by its covering, is 
our Nation's most important foreign content collection authority. I 
would like to see more reforms to this program, and perhaps that is 
something that those of us on the Select Intelligence Committee can 
strive for. I believe this is the best we are going to do at this time, 
and I look forward to supporting its passage.
  I thank the Acting President pro tempore.
  I yield the floor.
  I suggest the absence of a quorum.
  The ACTING PRESIDENT pro tempore. The clerk will call the roll.
  The senior assistant legislative clerk proceeded to call the roll.
  Mr. CORNYN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
  Mr. CORNYN. Mr. President, last week, the House voted to reauthorize 
for a period of 6 years section 702 of the Foreign Intelligence 
Surveillance Act--a vital tool in tracking foreign terrorists abroad. 
Last night, we had a very important vote in this Chamber, a cloture 
vote, which will allow us to proceed to a final vote on this 
legislation perhaps as early as tomorrow morning.
  Congress enacted section 702 in 2008 in direct response to the 
enduring threats to the country being posed by radical Islamic 
extremism and the ever-expanding use of the internet and social media 
by terrorists and foreign operatives. The law authorizes the Attorney 
General of the United States and the Director of National Intelligence 
to conduct surveillance on foreigners who are outside of the United 
States so that the U.S. Government can effectively acquire that 
intelligence information. As the Director of National Intelligence and 
many others have stated--former FBI Director James Comey is another 
one--section 702 is the crown jewel of our foreign intelligence 
collection and a critical weapon in the defense of our Nation.
  The law expires this Friday--that is right, just 2 days from now--so 
the clock is ticking. I am glad the Senate took the first step last 
evening, and I trust my colleagues will soon make sure the law is 
reauthorized so that the U.S. Government can continue to collect 
information that is vital to the protection of the Nation.
  Because the law requires targets of section 702 to be foreign 
citizens outside the United States, those targets are not covered by 
the Fourth Amendment of the U.S. Constitution. Clearly, people who are 
inside the country, American citizens, are all protected by the Fourth 
Amendment, but not foreigners, under Supreme Court precedent. Because 
of that, the government isn't required to obtain a warrant before 
initiating surveillance. That is where the misconceptions and confusion 
start to arise, and I want to talk a little bit more about that.
  Despite the strong bipartisan vote in support of section 702 in the 
House of Representatives last week and the strong bipartisan support 
for the provision here in the Senate, some critics want to delay 
reauthorization and engage in a never-ending lamentation about the 
demise of the Fourth Amendment. The Fourth Amendment, of course, is a 
guarantee against unreasonable searches and seizures. Again, that 
applies to American citizens, not to foreigners abroad. But these 
critics have mischaracterized the aims of the many Republican and 
Democratic proponents of this law, and frankly their concerns are 
misplaced. They ignore the enduring value and core protections in 
section 702 and the merits of various pro-privacy reforms in the House 
bill. As I said, it is truly a bipartisan bill.
  Critics have expressed three concerns, and I want to address each in 
  The first is that under 702, ``millions of bits of information are 
collected on Americans,'' not just foreigners, and that ``[w]e don't 
know the exact amount.''
  What they are referring to, of course, is what the intelligence 
community calls ``incidental collection''--when intelligence officials 
monitor the communications of foreign terrorists and the information of 
any Americans who are in communication with those terrorists sometimes 
gets included in the mix. But, of course, if even an American is 
talking to a foreign terrorist, certainly the intelligence community 
would want to know that.
  There are additional protections for U.S. persons who are 
incidentally collected based on a target of a foreign national. All of 
this would be a legitimate worry were it not for the fact that there 
are safeguards built into the statute that ensure that no more American 
communications are collected than are necessary to safely monitor 
foreigners with suspected terrorist ties. For example, section 702 
already explicitly prohibits the U.S. Government from intentionally 
targeting a foreign person ``if the [real] purpose . . . is to target a 
particular, known person . . . in the United States.'' That is illegal. 
There are also so-called ``minimization'' procedures that limit the 
dissemination and use of information acquired and scrupulous practices 
at our intelligence agencies--the NSA, the CIA, and the FBI--on how 
that information is dealt with in order to protect U.S. persons.
  Under the bill, several additional features should be acknowledged.
  The Foreign Intelligence Surveillance Court must review the FBI's so-
called ``querying'' procedures and certify that they are consistent 
with the Fourth Amendment.
  I know of no government program that has as much oversight and 
protection for the privacy rights of American citizens as the Foreign 
Intelligence Surveillance Act. It is actually supervised by all three 
branches of government--by the executive branch internally; by the 
judicial branch through the Foreign Intelligence Surveillance Court and 
other courts, which decided that there is no constitutional violation 
in any of the procedures laid down in the Foreign Intelligence 
Surveillance Act; and, of course, the oversight we conduct here in the 
Senate and in the House on the Senate and House Intelligence 
  To make sure all of this is scrupulously adhered to, a record must be 
kept of each U.S. person query term used. And far from ignoring 
Americans' privacy concerns related to incidental collection, the bill 
requires that the intelligence community hire and employ civil 
liberties officers--people whose explicit job is to look out for our 
privacy rights.
  In sum, those who would misleadingly paint the intelligence community 
as renegade--as deliberately surveilling millions of Americans with no 
checks in place--are simply wrong about the facts of this bill and the 
layered protections that have been put in place.
  Let me reiterate. The intelligence community is expressly prohibited 
from targeting Americans under section 702, directly or incidentally. 
In fact, the only Americans who might be worried about their 

[[Page S227]]

being swept up under section 702 are those who are deliberately 
communicating with foreign terrorists. But all Americans will benefit 
from a host of additional protections under the law.
  The critics' second and related concern is that incidental collection 
can be used in domestic criminal prosecutions. They are concerned that 
the U.S. Government could collect information without ever having to 
obtain a warrant and then use it to investigate and punish Americans 
for crimes.
  Again, this fear is misplaced under this bill. It is mitigated by 
analysis done by the Privacy and Civil Liberties Oversight Board in 
2014, who, after a comprehensive review, found no evidence of 
intentional abuse. Concerns of the critics are also mitigated by the 
FBI, which under this bill has to obtain a court order before it can 
access the contents of 702 communications in support of a purely 
criminal investigation, as opposed to an intelligence-gathering 
activity. It is also mitigated by the fact that section 702 
intelligence can be used as evidence against Americans only in 
instances of the most serious crimes. Apart from obtaining a court 
order, it can only be used if the Attorney General determines that the 
criminal proceeding involves national security or other heinous crimes, 
such as murder, kidnapping, or crimes against children.

  The critics' preferred approach--and they introduced bills to this 
effect last year--would prohibit the government from using any 702 
collection to investigate these dangerous, violent crimes, and 
therefore it would potentially protect dangerous criminals engaged in 
some of the most egregious behavior imaginable--something I think we 
would not want to do.
  That brings us to the skeptics' third problem, which deals with 
oversight. They fear that the reauthorization of this legislation could 
spell the end of congressional monitoring of the program. They have 
chastised this possibility as one that is ``callous in its disregard 
for our cherished Bill of Rights.''
  They are entirely correct to insist, in light of recent events, that 
Congress should continue to engage in rigorous oversight of the 
intelligence community and make sure that our surveillance tools aren't 
used for political ends. But we already have oversight in spades, and 
under this bill, we will have even more.
  First of all, the House bill reauthorizes the program for only 6 
years--not indefinitely. At the end of 2023, we will revisit section 
702. In the meantime, existing and extensive oversight of section 702 
will continue. As I mentioned, for example, there is judicial review. 
The Foreign Intelligence Surveillance Court annually reviews section 
702, and other courts have examined the use of section 702 in support 
of criminal cases. All agree that section 702 does not violate the 
Fourth Amendment to the U.S. Constitution. Even the Ninth Circuit, 
which is frequently out of line with other circuits and the Supreme 
Court, agrees that section 702 is constitutional.
  Courts, of course, are not the only oversight mechanism; there are 
ones within the executive branch, which I alluded to earlier, including 
routine reviews by the Department of Justice and the Office of the 
Director of National Intelligence. Of course, congressional committees, 
such as the Senate Intelligence Committee and the Judiciary Committee, 
both of which I serve on, also receive regular reporting on the 702 
program and hold open and closed hearings on the subject.
  Ultimately, the approaches that are preferred by the 702 critics 
would force the FBI to rebuild the wall between criminal and national 
security investigators that existed before the attacks in New York on 
9/11 and would cause the FBI to stovepipe its section 702 collection, 
contrary to the recommendations of numerous commissions, including the 
9/11 Commission and the Fort Hood Commission. We need to remember that 
the FBI protects our national security both as an intelligence agency 
and as a law enforcement agency. In other words, it wears two hats. So 
we can't wall off the FBI from the content of crucial communications, 
and we can't wall off the FBI from intelligence agencies, such as the 
National Security Agency and the Central Intelligence Agency. That was 
the situation the FBI was in leading up to September 11, 2001.
  We can't forget the increasingly dangerous world we are living in and 
the diverse array of threats that confront us. FBI Director Chris Wray 
has summarized our threat landscape. It is one that includes not only 
large mass-casualty events like 9/11 in the United States and similar 
recent attacks in Europe but also more isolated and diffuse lone-wolf 
and homegrown violent extremist threats that give law enforcement and 
national security investigators much less time to detect and disrupt. 
Imposing additional obstacles to accessing this critical information 
could either delay us when time is of the essence or, worse, prevent us 
from being able to connect the dots of information that the U.S. 
Government has already lawfully collected.
  Real-world examples show how devastating this could be. A tip under 
702 from the NSA, the National Security Agency, is what helped the FBI 
stop an attack on the New York City subway system in 2009. There is 
also Hajji Iman, who at one point was the second in command of ISIS. 
Section 702 helped us get him and take him off the battlefield. Then 
there is ISIS recruiter Shawn Parson--702 revealed his terrorist 
propaganda and identified members of his terrorist network. There are 
many, many more examples of instances where 702 helped us identify, 
disrupt, and prevent attacks against the homeland here in the United 
States and innocent civilians.
  Whether it is combatting terrorism, detecting and countering cyber 
threats, uncovering support to hostile powers, or acquiring 
intelligence on foreign adversary militaries, 702 is one of our most 
effective tools, and we simply can't afford to blunt the sharpness of 
its blade or dull the focus of its lens.
  In closing, I want to make one final point clear. I agree that, in 
the words of one critic, the Fourth Amendment is not a ``suggestion.'' 
It is a core constitutional protection of our sacred freedom. But 
reauthorizing section 702 would not suddenly relegate the Fourth 
Amendment to second-tier status. Every court that has considered the 
matter has said so, and frankly, it is obscene to ignore the balanced, 
pro-privacy reforms in the House-passed bill that would provide even 
greater protections for the Fourth Amendment rights of Americans.
  The truth is that section 702 has never been systematically abused. 
It has helped stop terrorist attacks both at home and abroad. It has 
helped defend our troops on the battlefield. It has been critical to 
the Russian collusion probe and other counterintelligence work. As I 
said, every court--every single court--that has considered the program 
has found it to be lawful and constitutional; in other words, 
consistent with the Fourth Amendment in the U.S. Bill of Rights.
  So we can all rattle the saber of civil liberties to score political 
points, but large, misguided changes to 702 are not the way to go. The 
House-passed bill will provide greater transparency and procedural 
protections for the Fourth Amendment rights of innocent, law-abiding 
Americans, while at the same time allow us to remain vigilant in 
protecting the homeland and our troops abroad and our national security 
at large by making sure we have the information we need in order to 
connect the dots with the threats to our national security.
  Mr. President, I yield the floor.


  Mr. COTTON. Mr. President, it is of the highest importance that we 
reauthorize title VII of the Foreign Intelligence Surveillance Act, 
especially section 702. It is one of the best tools we have for 
detecting and preventing terrorist attacks against our country, and it 
has a long track record of success.
  It is one reason that Najibullah Zazi today is not a household name, 
but yet just another bin Laden wannabe sitting behind bars. He was 
planning to blow up the New York subway system, but he never got the 
chance because our intelligence community and law enforcement 
professionals stopped him in his tracks by using information collected 
under section 702. That is how vital this program is, and that is why I 
will be voting yes on this legislation.
  That being said, the bill we are voting on today is not my ideal 
legislation. If I had my way, we would be voting on a permanent 
reauthorization with no changes. That was the White House's position 
when I worked together with the administration and introduced a section 
702 extension bill earlier this past summer, and the administration has 
said all along that they wanted a clean and permanent reauthorization.
  The people who rely on this program and know better than anyone just 
how valuable it is believed it was good as is. The way I see it, if the 
threats against our country will not sunset in 6 years, why would we 
sunset this vital program? But I understand we usually have to 
compromise around here. I am glad to see a provision I offered to 
increase the maximum penalty for the misuse of classified information 
included in this bill. So while I worry this bill might make it harder 
for our intelligence community and law enforcement professionals to 
protect our country, I am going to vote yes.
  As a result, you can imagine my surprise as I listened to the 
program's critics. There is a lot of misinformation out there. I want 
to take this opportunity to set a few things straight.
  First off, there is nothing unconstitutional about this program. 
Section 702 targets foreigners on foreign soil--not Americans--and it 
is specifically designed to protect Americans against unreasonable 
searches. You don't have to take my word for it, though. Every district 
court that has looked at this question has found section 702 to be 
  That includes, by the way, the so-called ``about'' collection. If you 
are trying to collect information about a foreign target, and an 
American citizen mentions that target in an email, I would suggest that 
we would want our intelligence community to know about that. Does that 
mean that they incidentally picked up information about American 
citizens? Yes. But let's be frank here. The only way to prevent this 
kind of incidental collection is to prohibit any collection at all. If 
our intelligence community couldn't track an email address or phone 
number simply because they theoretically might pick up information 
about an American citizen, they simply could not do their jobs.
  It is difficult, if not impossible, to tell if many email addresses 
belong to a foreigner just by looking at it. For example, is 
5675309@gmail.com an American email address or not? Who knows? Did the 
National Security Agency discontinue its ``about'' collection at one 
point recently? Yes, but to me that is evidence that this program 
works. Contrary to what its critics believe, the NSA voluntarily ceased 
collecting information in the name of protecting privacy. The NSA 
respected the minimization standard imposed by the Foreign Intelligence 
Surveillance Court. The safeguards worked just like they were supposed 
to. This bill says that the NSA can continue so-called ``about'' 
collection only once it gets approval from the FISA Court and from 
  Yes, section 702 has a whole host of safeguards built in to protect 
Americans' privacy, and this bill adds more still. If the FBI wants to 
review information collected under 702 on a U.S. person for a criminal 
investigation that is not related to national security or foreign 
intelligence, it has to get a court order based on probable cause, even 
though the Constitution does not require it. Or if the FBI wants to 
query 702 information, it can do so only under FISA Court-approved 
guidelines. Finally, just to make sure the FBI is following the law, 
this bill requires the DOJ inspector general to check up on the FBI's 
compliance and report back to Congress.
  Finally, the critics say the Attorney General can just sneak past all 
these safeguards by designating an investigation as a domestic crime 
related to national security or a transnational crime. That ignores the 
layers upon layers of oversight we have in place to prevent just that 
kind of abuse. Not only the DOJ inspector general but the FISA court 
and Congress will continue watching the FBI's use of this program, 
keeping guard against such misuse.
  So I find the critics' arguments to be wholly without foundation. 
Section 702 is constitutional and strikes a pretty good balance between 
security and privacy. There is no good reason to let this program 
expire and no good reason to hold this reauthorization up any longer. 
Let's remember, after all, that last year there were two terrorist 
attacks against New York City within 6

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weeks, not to mention a Christmas Eve plot against Pier 39 in San 
Francisco that was disrupted. Also, Admiral Rogers, the Director of the 
National Security Agency, has testified that the intelligence community 
would not have been able to put together its intelligence assessment 
about Russia's interference in our 2016 Presidential campaign without 
this vital program.
  We face a lot of threats. Terrorism, spying, and nuclear 
proliferation are just a few. They are not going away any time soon, 
and neither is the Russian threat of meddling in our politics, either. 
It is past time we gave this tool back to our intelligence community so 
they can continue the hard work of keeping our country safe.
  I yield the floor.


  Mr. HEINRICH. Mr. President, the Senate will be voting soon on a bill 
to reauthorize the FISA Amendments Act. Most Americans likely do not 
recognize the name of the bill, but they probably know what this bill 
addresses--our government's surveillance of communications.
  As a member of the Senate Intelligence Committee, I have learned a 
great deal about our post-9/11 surveillance laws and how they have been 
implemented, and I have determined that there are reforms that need to 
be made to the FISA Amendments Act--specifically section 702--before we 
renew this law.
  The single biggest flaw in section 702 is how it has been 
interpreted. The language of the law--the collection of foreign 
intelligence of U.S. persons reasonably believed to be located outside 
the United States--anticipates that incidental or accidental collection 
of Americans' emails or even phone calls could occur, but under the 
FISA Amendments Act as written, there is nothing to prohibit the 
intelligence community from searching through a pile of communications 
collected under this statute to deliberately search for the phone calls 
or the emails of specific Americans. This is not what Congress intended 
when the law was written, and now we are being asked to vote on this 
law at the last minute with not a single amendment allowed.
  Many of us have called this the backdoor search loophole since it 
allows the government to search for Americans' communications without a 
warrant--let me repeat that--without a warrant. The USA Rights Act, of 
which I am a cosponsor, includes a fix to this loophole. It also 
includes other key reforms to the statute that I support. But that 
commonsense bill is not the one on the floor today. The bill before us 
today would actually take us backward. It doesn't require a warrant to 
search for Americans' communications. It makes it quite easy to resume 
the ``about'' collections on Americans--a practice that the government 
has literally abandoned. It grants new authorities to allow section 702 
data to be used in domestic criminal prosecutions of American citizens.
  I strongly believe that the Federal Government needs a way to monitor 
foreign communications to ensure that we remain a step ahead of the 
terrorists and those who would threaten our national security. The FISA 
Amendments Act has been beneficial to the protection of our national 
security. I don't question the value of the foreign intelligence that 
this law provides. I have seen it with my own eyes. But I also strongly 
believe that we need to balance the civil liberties embodied in our 
Constitution with our national security imperatives. It is the 
responsibility of Congress to find that balance. The bill that is 
before us today could come closer to that standard if we improve it 
through the adoption of amendments that I and my colleagues would offer 
if we had the opportunity. But this bill is being fast-tracked, and we 
are left with only the choice of an up-or-down vote.
  The American people deserve better than the legislation before us 
today. The American people deserve better than warrantless wiretapping.
  I urge my colleagues to consider the gravity of the issues at hand 
and to oppose reauthorization until we can have a real opportunity for 
debate and reform.
  Thank you, Mr. President.
  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. WYDEN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.

[[Page S237]]

  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. WYDEN. Mr. President, I believe the American people should be 
deeply concerned about the vote the Senate took yesterday to invoke 
cloture; in effect, ending real debate and preventing the Senate from 
considering any amendments to the Foreign Intelligence Surveillance Act 
  This isn't what is called regular order. This isn't how the Senate 
ought to operate. In fact, it is not even how the Senate has handled 
surveillance bills in the past. Even in the weeks after the horrendous 
attacks of 9/11, the Senate considered amendments to the PATRIOT Act. 
In 2008, when the Senate first considered section 702, the Foreign 
Intelligence Surveillance Act, there were, in fact, amendments.
  Now debate has been cut off, and no Senator--neither a Democrat nor a 
Republican--is going to be allowed to offer an amendment. What the 
country is going to be left with is a deeply flawed bill that, in a 
number of ways, is actually worse than current law.
  I want to talk first about whose rights are at stake. We are talking 
primarily, at this part of my address, about Americans who talk to 
foreigners overseas--law-abiding Americans whose communications can get 
swept up under this law. They could be, for example, American 
businesspeople--perhaps somebody working for a tech company in Colorado 
or Oregon or perhaps somebody working for a steel company in the 
Midwest. These are American businesspeople--law-abiding people--talking 
to a foreign contact. They could be swept up under this law or we could 
be talking about first-, second-, or third-generation Americans talking 
to family and friends still overseas. Maybe they are catching up. Maybe 
they are talking about kids and grandkids. Maybe they are just talking 
about their hopes and aspirations, but they are still law-abiding 
Americans who could get swept up in this bill. We could be talking 
about American journalists covering foreign stories. We could be 
talking about U.S. servicemembers talking to foreign friends they made 
while deployed. Try to get your arms around that one.
  I think it is particularly unfortunate because one of the things I am 
proudest of is I was able to ensure that Americans overseas--
servicemembers--would have their privacy rights protected. We have a 
law passed to do that.
  I remember George W. Bush had reservations about that proposal I made 
to protect the privacy rights of our law-abiding servicemembers 
overseas. He originally said he might veto the bill. In the end, it was 
in his press release saying how great it was, and I think it was 
because nobody had really talked about the rights of these wonderful 
men and women who wear the uniform in the United States.
  We did it right back when George W. Bush was President. We protected 
the privacy rights of our servicemembers overseas. Now we are talking 
about walking back the rights of those U.S. servicemembers if they are 
talking to foreign friends they made while deployed, and we could be 
talking about American teachers and researchers seeking information 
from foreigners.
  Now this body isn't going to have a chance to even consider reforms 
that might protect the constitutional rights of these Americans--the 
businessperson, the servicemember, the first-, second-, or third-
generation American immigrant--because what has happened is the Senate 
is being forced to vote on a reauthorization bill without any public 
discussion about any kind of alternatives. The one committee 
consideration--what is called a markup--occurred entirely in secret. 
That is public law being debated in secret.
  Yesterday, the Senate discussed whether to cut off debate on a bill 
that authorizes vast, unchecked surveillance powers in less time than 
it takes to shop for the week's groceries. So now, with no amendments 
possible, there is not going to be a single opportunity for the public 
to see its representatives explain why they are supporting or why they 
are rejecting these key reforms.
  You can only conclude from this that opponents of reforms were just 
scared. They were frightened. They just didn't want to have them 
debated in the open. They must be worried that the more Americans 
understand about the program--and the more they hear about commonsense, 
bipartisan proposals to fix it--the more the public is going to say we 
can do better. We can do better than the status quo because the public, 
once they have the benefit of a little transparency and a little open 
debate, what I have seen--and I just finished my 865th open-to-all town 
meeting at home in Oregon. Once you talk to folks at home about these 
issues, they understand that security and liberty aren't mutually 
exclusive; that sensible policies get you both and not-so-sensible 
policies and failure to look at the issues really get less of both.
  My view is the Senate let down the American people yesterday. In my 
view, we have a solemn obligation to deliberate, to consider 
amendments, and to vote up or down. I think that is really what the 
Senate is all about.
  One of the worst arguments for jamming this bill through without 
amendments was that somehow this law was going away. It just wouldn't 
be around. It was expiring.
  First, Members who wanted to debate reforms were prepared to go to 
this floor many months ago. Nothing stood in the way of a floor debate 
last year. Even today, there is no reason to rush all this through. 
Absolutely nothing prevents the Congress from extending 702 authorities 
for a week or two to allow us to carry out our constitutional 
responsibilities. By the way, the Director of National Intelligence has 
said publicly and on the record that its authorities continue until 
April. I was stunned.

  I had Senators on both sides of the aisle whom I like very much--
good, dedicated Senators--saying: Oh, my goodness, we have to act. If 
we don't act in the next few days, oh, my goodness, powerful tools we 
need to stop the terrorists--and I will not take a backseat to anybody 
in terms of stopping the terrorists--they are going to be gone. That is 
just not true.
  Mr. President, I ask unanimous consent to have printed in the Record 
an article with the statement from the Office of National Intelligence, 
where the Director said on the record that its authorities would 
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                [From The New York Times, Dec. 6, 2017]

 Warrantless Surveillance Can Continue Even if Law Expires, Officials 

                          (By Charlie Savage)

       Washington.--The Trump administration has decided that the 
     National Security Agency and the F.B.I. can lawfully keep 
     operating their warrantless surveillance program even if 
     Congress fails to extend the law authorizing it before an 
     expiration date of New Year's Eve, according to American 
       National security officials have implored Congress for the 
     past year and a half to extend the legal basis for the 
     program, Section 702 of the FISA Amendments Act, before it 
     lapses at the end of the month. They portrayed such a bill as 
     the ``top legislative priority'' for keeping the country 
       But with Congress focused on passing a major tax cut and 
     divided over what changes, if any, to make to the 
     surveillance program, lawmakers may miss that deadline. 
     Hedging against that risk, executive branch lawyers have now 
     concluded that the government could lawfully continue to spy 
     under the program through late April without new legislation.
       Intelligence officials nonetheless remain intent on getting 
     lawmakers to pass a durable extension of Section 702 by the 
     end of the month--warning that even a stopgap short-term 
     extension of several months, as some lawmakers have proposed, 
     would risk throwing the program into a crisis in the spring.
       ``We fully expect Congress to reauthorize this critical 
     statute by the end of the year,'' said Brian Hale, a 
     spokesman for the Office of the Director of National 
     Intelligence. ``Not doing so would be unthinkable in light of 
     the considerable value Section 702 provides in protecting the 
       The expiring law grew out of the Bush administration's 
     once-secret Stellarwind warrantless surveillance program 
     after the Sept. 11 attacks. After it came to light, Congress 
     enacted the FISA Amendments Act of 2008 to legalize a form of 
     the program.
       Under Section 702, the N.S.A. and the F.B.I. may collect 
     from domestic companies like AT&T and Google the phone calls, 
     emails, texts and other electronic messages of foreigners 
     abroad without a warrant--even when they talk with Americans. 
     The program has expanded to a broad array of foreign 
     intelligence purposes, not just counterterrorism.
       If Congress fails to reauthorize the law this month, Mr. 
     Hale acknowledged that the government believes it can keep 
     the program going for months. Its reasoning centers on a 
     legal complexity in how the program works: Under the law, 
     about once a year, the secretive Foreign Intelligence 
     Surveillance Court

[[Page S238]]

     sets rules for the program and authorizes it to operate for 
     12 months.
       The court last issued a one-year certification on April 26. 
     That matters because a little-noticed section of the FISA 
     Amendments Act says that orders issued under Section 702 
     ``shall continue in effect until the date of the 
       Mr. Hale said the provision, which is recorded in federal 
     statute books as a ``transition procedures'' note 
     accompanying the main text of the law, makes it ``very 
     clear'' that ``any existing order will continue in effect for 
     a short time even if Congress doesn't act to reauthorize the 
     law in a timely fashion.''
       Given that conclusion, the government is making no plans to 
     immediately turn off the program on New Year's Day, no matter 
     what happens in Congress, according to a United States 
     official familiar with the Section 702 program who spoke on 
     the condition of anonymity to discuss a sensitive topic.
       The disclosure has significant ramifications for the debate 
     over the program.
       Congressional leaders have discussed including an extension 
     of the program in other must-pass legislation, like a 
     spending bill to keep the government from shutting down. But 
     lawmakers will face less pressure to jam through such a move, 
     short-circuiting a full and open debate over reform 
     proposals, if the alternative is not an immediate termination 
     of the collecting of intelligence authorized by the law.
       Little consensus exists in Congress about what, if any, 
     changes to make to the law as part of extending it. Lawmakers 
     have submitted legislation spanning the gamut from making the 
     law permanent without changes to imposing significant new 
     limits to safeguard the privacy rights of Americans whose 
     communications get swept up in the program, as well as a 
     range of intermediary proposals.
       One key disagreement centers on what limits, if any, to 
     impose on how government officials may search for, gain 
     access to or use in court information about Americans that 
     gets swept into the warrantless surveillance program. Some 
     lawmakers want to impose a broad provision forcing officials 
     to get a warrant before they may query the repository about 
     an American. Some want a more limited requirement that 
     officials get a court's permission to gain access to the 
     results of such a query if it is for a criminal investigation 
     but not a national security one. Some want to impose no new 
       Another major issue confronting lawmakers is what to say, 
     if anything, about the N.S.A.'s old practice of collecting, 
     from network switches on the internet's backbone, 
     international emails and other such messages that mention a 
     foreigner who is a target of surveillance but are neither to 
     nor from that person. The N.S.A. recently halted that 
     practice but wants to retain the flexibility to turn it back 
     on; some bills would codify a ban on it, and some would not.
       The question of a Section 702 overhaul, and trade-offs 
     between national security powers and privacy protections, has 
     scrambled the usual party lines. Representative Robert W. 
     Goodlatte of Virginia, the Republican chairman of the 
     Judiciary Committee, has warned that legislation whose 
     changes fall short of a compromise bill that he worked out 
     with Democrats on his committee is unlikely to pass the 
       In an interview, Senator Ron Wyden, an Oregon Democrat, 
     declined to comment on the government's theory, but said he 
     was open to making it possible to have a full and open debate 
     over the proposed changes to the surveillance law early next 
     year if time runs out this month.
       ``We've seen this movie before: wait until the last minute, 
     and then say, 'crowded congressional calendar, dangerous 
     world, we've just got to go along with it,'' Mr. Wyden said. 
     ``Anything now that creates an opportunity for several months 
     of real debate, I'll listen to.''
       Either way, the United States official said the executive 
     branch and the courts would still need a durable new version 
     of the law well before the late-April deadline. The problem, 
     the official said, is that it will take a significant amount 
     of time to develop new procedures based on the new law, 
     submit them to the Foreign Intelligence Surveillance Court, 
     make changes the court wants and then work with 
     communications companies to implement the new certifications.
       Mr. Hale declined to comment on those specifics, but said 
     that a gap in the surveillance program's legal authorization 
     would generate uncertainty.
       ``So while the orders would be in effect for a short time 
     after the end of the year, the fact is that we would need to 
     be planning for the end of the program,'' Mr. Hale said, 
     ``and that cannot be done in a matter of days--to effect that 
     takes some time, and is not like turning on or off a light 
       Planning to turn off the Section 702 program, the other 
     official said, would include steps to mitigate that change as 
     much as possible, including by systematically going through 
     the list of more than 100,000 foreigners abroad who are being 
     targeted under the program and triaging which are the most 
     critical, then developing lengthy packages of information to 
     submit to the surveillance court to seek individualized 
     orders to wiretap them.
       But because of the resources such an effort would require 
     and the higher legal standard the government would need to be 
     able to meet, surveillance would ultimately cease on most of 
     the Section 702 targets, the official added.

  Mr. WYDEN. Thank you, Mr. President.
  Despite yesterday's vote, I regret to have to say I am going to have 
to oppose this legislation's final passage. My view is, if this bill 
does not go forward now, it is possible to get Democrats and 
Republicans back to work together to ensure there is a meaningful 
debate on the floor of the U.S. Senate and that this is done with ample 
time to meet this window that the Office of National Intelligence has 
talked about publicly, but if that doesn't happen, the Senate has 
denied itself the opportunity to even attempt to fix this badly flawed 
  This surveillance authority allows the government to sweep up some 
untold amount of law-abiding Americans' communications. The government 
says, of course, that its targets are terrorists, and this is about 
keeping Americans safe from terrorism. I don't take a backseat to 
anybody in terms of fighting terrorist threats.
  Having served on the Intelligence Committee for some time now, I can 
tell all Members and the public there is no question that the terrorist 
threat is real and that there are significant numbers of people who 
represent a very real threat to the well-being of our country.
  Now, if somebody says, We have to keep Americans safe from terrorism, 
I am all in. I would submit that I don't know of a single U.S. 
Senator--not 1 out of 100--who is not all in on this fight against 
terrorism, but that is not what the law says. The law says that, under 
section 702, the government can collect, without a warrant, the 
communications of foreigners ``to acquire foreign intelligence 
  Here is how the law defines ``foreign intelligence information.'' It 
is information that relates to the conduct of the ``foreign affairs of 
the United States.'' That is just about any piece of information about 
a foreign country.
  Who can the government target to get all of this information? Anybody 
``expected to possess, receive, and/or is likely to communicate'' that 
information. So if you unpack that, you don't have to be a terrorist 
suspect or any kind of threat to the United States to be a target under 
section 702 of the Foreign Intelligence Surveillance Act. The 
government just has to think you know something the government wants to 
  That is why so many Americans--Democrats, Republicans, and 
Independents--are worried about getting their private communications 
swept up. They are law-abiding people, as I have been saying--
servicemembers, businesspeople, Americans who, on a regular basis, talk 
to friends, families, and contacts overseas. They are worried because, 
based on what the law says, which I have just read, those foreigners 
could be the targets, and Americans' communications could be collected 
by the government.
  Now, for years, I and other Members of the Congress--both Houses, 
both parties--tried to at least get an estimate of how many law-abiding 
Americans' communications have been getting swept up. As recently as 
April 2017, the Director of National Intelligence said the public was 
going to get some kind of estimate, but in June, the Director suddenly 
changed course and told the public and the Congress: You are not 
getting anything. What that means is no one knows the size of the 
database. Nobody knows how many Americans' private communications are 
sitting there, waiting to be searched and possibly used against those 
  Just yesterday, the Privacy and Civil Liberties Oversight Board was 
invoked by those opposing reforms, but what that Board had to say about 
the sheer volume of Americans' communications being swept up is 
actually, in their words, ``too much expansion in the collection of 
U.S. persons' communications or the uses to which those communications 
are put may push the program over the [constitutional] line.''
  So here they were being cited, in effect, as supporters for the 
status quo when I just read you their concern about the status quo.
  This is why today section 702 of the Foreign Intelligence 
Surveillance Act is an end-run on the Constitution, and it is what the 
Presiding Officer and other Members of this body--both Democrats and 
Republicans--have wanted to change.

[[Page S239]]

  This end-run is not just about the collection. It is that, after all 
the communications of our people are swept up, the government can go 
searching for individual Americans through all that data. They don't 
have to be suspected of anything. The government just has to decide on 
its own that your private communications might reveal some intelligence 
or some evidence of a crime, and like the collection of the 
communications, that search can take place without a warrant--no 
warrant on the collection of Americans' communications, no warrant on 
searching for individual Americans. This is a case of two wrongs 
certainly not making a right.
  What the Senate did last night was prevent any debate on this basic 
constitutional question. The USA Rights Act, introduced by 15 Senators 
of both parties, would have required a warrant for those searches of 
  Our colleagues Senator Leahy and Senator Lee have legislation 
requiring a warrant--a Democrat and a Republican. Other Members have 
had their own proposals. None of them are going to get heard by the 
  We had a chance to consider amendments. We could have fixed the 
underlying bill, which doesn't require any warrants for any searches 
for Americans. Let me just repeat that. The underlying bill does not 
require any warrants for any searches for Americans--none, not in 
intelligence cases, not in criminal cases. Warrantless fishing 
expeditions for Americans can just go on and on and on.
  The bill's so-called reform only applies to the government's access 
to the results of the searches, but it really doesn't even do that. It 
only kicks in if the government is already well down the road of 
investigating somebody.
  This means the bill provides more rights to criminal suspects than to 
innocent Americans. Think about what that is going to mean in Texas or 
Oregon or North Carolina or anywhere else in the country. As I have 
described it, this bill provides more rights to criminal suspects than 
to innocent Americans.
  It gets worse because the bill is even narrower than that. It imposes 
no limitations at all if the government determines the search relates 
to national security or to a criminal matter that has anything at all 
to do with national security. Why are opponents of reform happy now? 
Because their bill does nothing.
  I went and read the Director of National Intelligence's statistics 
for 2016. The CIA and the National Security Agency conducted over 5,000 
warrantless searches for Americans, according to this material. It 
doesn't include the FBI, whose searches are supposedly too numerous to 
even count. It doesn't include communications records, which number in 
the tens of thousands.
  How many times does the government encounter a situation in which, 
under this bill, there would even be the possibility of needing a 
warrant? Exactly one--that is right--one among the thousands and 
thousands of warrantless searches for Americans. Even that is an 
overstatement because that one instance in 2016 could have occurred 
prior to a predicated investigation; in which case, it, too, would be 
exempt from warrant requirements.
  Basically, this bill we will vote on provides an easy-to-read roadmap 
to the government to make sure it never has to get a warrant for 
anything. Meanwhile, the thousands of Americans subject to warrantless 
backdoor searches each year have no protections at all.
  Had there been amendments, I think there would have been the familiar 
argument against requiring a warrant for searches of Americans' private 
communications. We would have heard that section 702 of the Foreign 
Intelligence Surveillance Act is necessary to connect the dots between 
suspects and terrorists.
  Here is why that is misleading. Opponents of reform like to talk 
about a tip to the government that somebody is acting strange on a 
bridge. They say this is a situation where the government needs to go 
directly to reading the private communications of this person. That is 
just not how the Constitution works.
  Think about it. Would you want the content of your private 
communications searched, accessed, and read just because somebody has a 
slight suspicion about you?
  Here is the misleading part. Opponents of reform say that, unless the 
government searches for and reads the emails, it just can't connect the 
dots to the terrorists. That is just false. The government already has 
the authority to get this information and in a less intrusive way.
  Some may remember just a few years ago there was a debate about 
ending metadata--the bulk collection of millions of phone records of 
law-abiding Americans. What remained at the end of that debate was the 
authority of the government to go get the phone and email records of 
anyone as long as the records were relevant to an investigation. If it 
is an emergency, the government can get those records immediately 
without having to go to the court first.
  I want to emphasize that because it is something I have felt very 
strongly about. I wrote that section, section 102 of the USA Freedom 
Act, because I wanted to make sure it was clear in this debate about 
finding policies where security and liberty are mutually exclusive, 
where we have both, that the strongest possible message was sent; that 
if the government believes there is an emergency, the government can 
move immediately--immediately--to get the information it needs and then 
come back later and settle up with the court.
  When I have the opportunity to be in the Oval Office, which I have 
had several times--it is a wonderful honor and privilege given by the 
people of Oregon to pursue these issues--I will say what I say to the 
President, not what the President says back because I think those are 
private communications of the President. At one point in this debate, I 
said to President Obama: If you and your staff feel the current 
emergency provisions are not adequate, if you think they are not strong 
enough, I want to know about it because I will work with you to make 
sure they do the job.
  That is because when there is an emergency and the security and well-
being of the American people is on the line, the government gets a 
chance to move quickly, come back, and settle later with the court. I 
have included that in essentially all the legislation that I have 
authored. This provision of the Foreign Intelligence Surveillance Act 
is what allows the government to connect the dots without going 
directly to the content of private communications. That is how our 
system is supposed to work. The government gets less intrusive 
information on Americans, using a lower standard, first.
  But what if the government needs the content of communications 
urgently? What if the government sees an immediate threat and believes 
it has no choice but to read those communications right away? As I 
said, that is why we had the amendment that I have described in USA 
Freedom Act, and it is why we said in our amendment to section 702--in 
this proposal--that we would also have an emergency exception. Again, 
the USA Freedom Act has an emergency exception, and our reform to 
section 702 of the Foreign Intelligence Surveillance Act has an 
emergency exception. In this case, under our proposal, in an emergency, 
the government can search for and read those communications immediately 
and seek a warrant later. Our proposal also includes other exceptions 
to the warrant requirement, such as a hostage situation, where a search 
might help save someone.
  I bring this up only by way of saying that reformers have been very 
clear. When the government has an emergency that is defined by the 
government--not by somebody else who might conceivably not have all the 
information--what we did in the USA Freedom Act is what we are doing in 
section 702 of the Foreign Intelligence Surveillance Act, which is 
protecting the American people in an emergency.
  Now, there are other facts about warrantless backdoor searches that 
opponents of a warrant requirement omit from public argument. For years 
after the original passage of section 702 of the Foreign Intelligence 
Surveillance Act, the CIA and the National Security Agency didn't have 
the authority to conduct these searches. What is more, the Bush 
administration never asked the FISA Court, or the Foreign Intelligence 
Surveillance Act Court, for those authorities. The Bush administration 
didn't think it was a problem

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that the CIA and the NSA couldn't conduct warrantless backdoor searches 
of Americans. But now people act like the warrantless searches are 
somehow inseparable from the broader program. They pretend that we 
really can't have an effective foreign intelligence collection program 
unless you just make sure you are violating the rights of Americans.
  This week should have been an opportunity to discuss the facts of how 
this bill could have been improved. It should have been an opportunity 
to clarify that Americans don't have to choose between security and 
liberty. It should have been the Senate's chance to push back against 
scare tactics and fearmongering and to lay out for the public what the 
government does and doesn't need to protect us. Instead, we get a bill 
that isn't necessary for our security and does nothing to protect our 
  There are other important amendments that are not going to be 
considered. One relates to what is known as ``abouts'' collection, a 
process in which two innocent Americans could have their communications 
swept up if they just write an email referencing a foreign target. We 
are talking communications entirely among individuals who themselves 
are not targets and are, potentially, all Americans. The whole concept 
is just contrary to the Fourth Amendment. As the privacy board 
concluded, there was ``nothing comparable'' in the law.
  ``From a legal standpoint, under the 4th Amendment, the government 
may not, without a warrant, open and read letters sent through the mail 
in order to acquire those that contain particular information. 
Likewise, the government cannot listen to telephone conversations, 
without probable cause about one of the callers or about the telephone, 
in order to keep recordings of those conversations that contain 
particular content.''
  That is the quote from the privacy board, and we sure heard on the 
floor sponsors of the status quo, in my view, suggest that the privacy 
board had a different view of what they were up to.
  From a practical standpoint, this form of collection was so 
problematic that the government itself was forced to shut it down. Now, 
the underlying bill says: Go ahead and start it up, as long as you tell 
Congress. Congress has to be told anyway.
  Based on the bill before us, if Congress does what it does best--
which is nothing--the government can just go ahead.
  Again, I don't think that is what the public thinks the Senate should 
be about. If the government ever wants to get back into the business of 
this collection, it can come to the Congress and get it authorized. 
If their argument wins the day, so be it, but preemptively writing into 
black letter law this form of collection, sight unseen, means that this 
Senate is surrendering our constitutional responsibilities.

  This is one of the examples, the ``abouts'' collection, which I 
mentioned, of why this bill actually is a retreat from current law. 
Congress has never approved ``abouts'' collection. It wasn't in the 
2008 bill creating the law or the first reauthorization of section 702. 
It happened because of a secret interpretation of law, and most of 
Congress knew nothing about it. But now, for the first time, when the 
government itself has suspended it--largely because they know it had 
been abused--what we are doing is essentially setting up what amounts 
to a fast-track process to write it back into the law. It defines 
``abouts'' collection broadly--broader even than the government--and it 
invites its resumption.
  The Senate also is not going to get to consider an amendment limiting 
how information on Americans can be used against Americans. The bill 
allows unlimited secret use of section 702 information--all collected 
without a warrant--in any investigation or in any administrative or 
civil procedures against Americans. Now, Americans understand how the 
government can thoroughly disrupt their lives without ever charging 
them with a crime, particularly if they are doing it based on secret 
  But even when it comes to using 702 information as evidence in 
criminal proceedings against Americans, the bill provides no real 
protections. All the government needs is for the Attorney General to 
determine that the criminal proceedings relate to national security or 
involve a set of crimes that have nothing at all to do with national 
security. There is a catch-all category called ``transnational crime.'' 
Now, I have tried for some time to get the government to tell me what 
this ``transnational crime'' is. I haven't gotten much of a response. 
In any case, the underlying bill here specifically says that the 
Attorney General's decisions cannot be challenged in court.
  So there you are. If the Attorney General decides that the crime you 
are being charged with somehow relates to national security or is a 
``transnational crime,'' that decision by the Attorney General is 
really pretty much sacred. You can go to jail without ever being 
allowed to challenge the government's use of section 702 information 
against you--information obtained without a warrant and potentially 
uncovered as a result of warrantless searches specifically conducted to 
find your communications and communications about you.
  The ways in which the government could potentially use this 
information, collected without a warrant to investigate and prosecute 
Americans and those in the United States, are limitless--immigration 
status, recreational drugs, back taxes. The list goes on and on. I 
don't think Americans think that is how the system is supposed to work. 
Is that what a warrantless foreign intelligence surveillance bill is 
supposed to do? I don't think so--immigration status, recreational 
drugs, back taxes--but this bill allows it.
  The bill leaves in place other problems that affect our rights. One 
of them is the issue of what is called parallel construction. That is a 
lot of fancy legalese that says that, even if information against an 
American originally comes from section 702, if the government 
subsequently constructs a case from other collection, it never has to 
tell that American that it used section 702. My bill, with Senator Paul 
and 13 other Senators, would have fixed that.
  The bill we are voting on shortly, without any debate on amendments, 
also leaves in place a big catch-22 that prevents anybody from ever 
challenging section 702 in court. Section 702 collection is secret, so 
almost no one can prove definitively that they personally were swept 
up. That means it is also almost impossible to get standing to go to 
court to challenge section 702. I am sure it pleases opponents of 
reform, but it means that section 702 isn't going to be part of any 
court review process where both sides of the adversarial system get 
  Fixing this problem is not, as so many in the House misleadingly 
said, giving rights to terrorists. That was part of the fear-mongering 
that went on. This is simply saying that section 702 is not exempt from 
constitutional challenges that apply to every single Federal statute--
by the way, the hallmark of our constitutional system.
  There are other problems that could have been fixed with amendments. 
I am particularly troubled by the fact that the underlying bill doesn't 
fix the problem of reverse targeting. This is where the government 
targets a foreigner overseas when it is really interested in collecting 
the communications of an American without a warrant. Right now, the law 
as written allows this collection to continue without a warrant, 
unless, in effect, the only purpose of the collection is to obtain the 
American's communications. My concern is that, if the government has 
even the slightest interest in the foreign target, it is not going to 
seek a warrant, regardless of the intensity of the government's 
interest in the American on the other end of the phone or the email. 
This could mean, again, frequent, ongoing searches of the American's 
communications. It could mean the use of the American's communications 
in investigations and criminal proceedings. There is a solution to 
this, and we proposed it; that is, if a significant purpose for 
targeting a foreigner is to get an American's communications, the 
government would need a warrant--pretty simple. I note that the 
Presiding Officer of the Senate is supportive of reforms and our 
bipartisan coalition. I very much appreciate that.
  Just think about that. We had a solution to the fact that reverse 
targeting had been abused. We simply said, if a significant purpose of 
the government for targeting a foreigner is to get an

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American's communications, the government would need a warrant--and, of 
course, we have an emergency exception in the bill as well.
  The bill also doesn't prevent the government from directing service 
providers to modify or weaken encryption without any court oversight. I 
am telling you that this problem has been underappreciated. As we all 
know, there is an ongoing debate about whether the government should be 
able to mandate backdoor weaknesses in encryption. I believe this kind 
of authority is just a loser all around. I think Americans, if you 
weaken strong encryption, will be less safe. Certainly, parents who are 
concerned about a youngster don't want to weaken the protection in 
their smartphone for the tracker so they can keep tabs on their 
kids. If the government is allowed to mandate backdoor weaknesses in 
our products, I believe we will be less safe, we will have less 
liberty, and it will be a big loser for many of our high-skilled, high-
wage companies.

  I have already announced that, if there is any effort to weaken 
strong encryption, I will do everything in my power to block that 
legislation because it is a loser from a security standpoint, it is a 
loser from a liberty standpoint, and it will be bad news for a lot of 
our companies that pay good wages for the high skills of Americans, but 
even those who argue that the government should be able to mandate 
backdoor weaknesses in encryption assure us it is only going to happen 
if the court orders it. But under section 702, the government could 
direct a service provider to do that without any court awareness at 
all. And, of course, Congress might not know either.
  Again, we would have liked to have fixed this here on the floor. The 
bipartisan legislation I have with Senator Paul requires that the FISA 
Court approve the kind of technical assistance the government is 
seeking from providers, which would also result in the Congress finding 
out. This bill we will be voting on soon doesn't do that. As a result, 
the court and the Congress could end up totally in the dark about an 
issue that I think is absolutely central to the security and well-being 
of our people in the 21st century.
  The bill also provides no clarification on the question of whether 
section 702 of the Foreign Intelligence Surveillance Act can be used to 
collect communications the government knows are entirely domestic. Put 
your arms around that. This law is called the Foreign Intelligence 
Surveillance Act, and we can't even get a straight answer from the 
government's Director of National Intelligence about whether the law 
can be used to collect communications the government knows are entirely 
  When I first asked the head of national intelligence whether 702 
provided this authority, he said in a public hearing: No. That would be 
against the law.
  Then, apparently, he told folks in the news media that he was 
answering a different question than the one I asked.
  Once again, I asked the Director of National Intelligence to answer 
the question I had asked, at which point he then wrote and said that 
the whole thing was classified.
  This is the essence of what is secret law. I believe it is the kind 
of thing that erodes trust in the government and in the intelligence 
community specifically.
  Had we been able to have a real debate, I would have offered an 
amendment that would, in effect, write in the black letter law what the 
head of national intelligence told me at first when I asked him ``Could 
FISA be used to collect wholly domestic communications?'' before all 
this George Orwell stuff. The head of national intelligence said: No, 
FISA could not be used to collect wholly personal communications. That 
answer would have reassured the American people.
  After all of this back-and-forth and the bizarre situation where the 
Director of National Intelligence says the whole thing is classified 
after he has already given an answer in public, now the public isn't 
going to have an opportunity to see its representatives address this 
issue or take a position.
  Supporters of the bill point to provisions related to oversight of 
section 702. Here is how inadequate those are. Yesterday, we again 
heard about the privacy board. Right now, the privacy board is 
restricted to reviewing counterterrorism programs. Most intelligence 
programs aren't neatly categorized that way. They are broader than 
that. And, of course, the effect on Americans' privacy has nothing to 
do with whether a collection program is about terrorism or anything 
else. This bill leaves in place completely arbitrary limits on the 
privacy board and their ability to oversee the country's intelligence 
  The bill does not meaningfully strengthen the FISA Court in a way 
that I think is very basic. There are people with top security 
clearances who appear before the court and provide the only alternative 
view in what is otherwise basically the government's show. The FISA 
Court has often gone years without addressing serious legal and 
constitutional questions. Sometimes, the court never gets to them. 
Right now, these sort of friends of the court are only heard from when 
the court invites them. But imagine if these folks who have top 
security clearances were informed about what was going on and could 
raise issues with the court whenever they felt it was important. This 
would not hinder the FISA Court, but it would greatly improve the 
chance that the court would consider serious issues earlier. Once 
again, no reform.
  There are also basic principles of transparency that are ignored in 
the bill. Right now, the CIA and the NSA are obligated to inform the 
public how many searches of Americans they conduct. The FBI is not. I 
don't see a good argument why Congress shouldn't change that. The 
American people deserve to know how often the CIA and the NSA conduct 
warrantless searches looking for information on them. They deserve to 
know how often the FBI does so, particularly because the FBI conducts 
searches for evidence of a crime as well as for intelligence.
  I believe I have outlined the faults of the bill. This is not reform. 
It is not even business as usual; it is a retreat. It is, in fact, 
worse than just extending the program's business as usual because, for 
the first time, it writes into black letter law the problematic 
practices that I have outlined. There is not real oversight. There is 
not transparency. That is what the public demands. That is what I heard 
people asking for at the townhall meetings I held last weekend in 
Oregon. Americans still have a lot of unanswered questions about the 
  There are certainly many Members of Congress who share my concerns 
who have devoted much of their career to ensuring that Americans have 
security and liberty. I want to especially express my appreciation to 
Senators Paul and Lee. They have been tireless champions. Chairman 
Leahy has led on this critical matter for decades. Senator Heinrich, my 
seatmate on the Intelligence Committee, is one of this body's rising 
stars because he is willing to dig deeply into the issues. In the 
House, 183 Members voted for the most comprehensive section 702 reform 
bill, the House version of the USA RIGHTS Act. As we saw last night--
and the President of the Senate and I were involved in a lot of those 
deliberations down here in the well of the Senate--this was a very 
close vote.
  A lot of people say: Well, the reformers are going to say their 
piece, and they are going to get 6, 8, 10 votes and the like.
  I think, last night, we really brought home what I hear Americans 
say, Democrats, Republicans--by the way, many Independents--who have 
questions about the way the government works and want to see their 
liberties protected in a way that also keeps them safe, and a big group 
of Members in the other body. And last night, a big group of Senators 
said: What a quaint idea. Let's have the U.S. Senate be the U.S. 
Senate. Let's have a few amendments.
  It was communicated to the leaders. I want to thank Senator Schumer 
for making it clear that he thought that some amendments would make 
this a better, fuller, and more complete debate. I think it is very 
unfortunate, with the fact that there are so many important issues 
here--it is an important bill. I hope people have seen that--having 
spent a lot of time on these issues over the years, I think we really 
need to have more time spent on this floor getting a chance to debate 
these issues, having Senators of both

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parties work in good faith, work toward constructive solutions.
  I think support for what we sought last night, which is a real debate 
and real solutions and actual amendments--I think more and more 
Americans are coming around to see that is the way to proceed because 
Americans aren't going to buy the idea that, well, we will just say you 
have to give up some of your liberty to have security. Ben Franklin 
said it very well: Anybody who gives up their liberty to have security 
doesn't really deserve either.
  What we need are smart policies. That is why I talked about 
encryption. Strong encryption makes us safer. It also protects our 
liberty. That is why I outlined some of the deep flaws in this bill. I 
think this bill puts on fast track going back to ``abouts'' collection, 
where somebody is barely mentioned and, all of a sudden, the government 
is collecting the communication.
  I will oppose final passage of this legislation. Nothing is 
preventing the Congress from getting this right. As I mentioned, the 
office of national intelligence--the Director of the relevant agency 
has said there is plenty of time for us to take this bill, have a few 
amendments, a real debate, and come up with a bill that better ensures 
that Americans are both safe and free.
  With that, I yield the floor.