[Congressional Record Volume 164, Number 10 (Wednesday, January 17, 2018)]
[Senate]
[Pages S213-S214]
FISA
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)]
[Senate]
[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
is.
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
government.
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
statute?
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)]
[Senate]
[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'
communications.
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
program.
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
ordered.
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
turn.
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
Committees.
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
communications
[[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
constitutional.
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
Congress.
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
[[Page S236]]
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
reauthorization.
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
continue.
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
Say
(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
officials.
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
safe.
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
nation.''
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
expiration.''
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
constraints.
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
House.
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
switch.''
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
bill.
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
information.''
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
know.
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
Americans.
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
Americans.
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
Senate.
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
[[Page S240]]
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
liberty.
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
information.
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
heard.
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
[[Page S241]]
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
domestic.
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
programs.
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
program.
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
[[Page S242]]
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.
[...]
