[Congressional Record Volume 166, Number 90 (Wednesday, May 13, 2020)]
[Pages S2387-S2388]


  Mr. McCONNELL. Madam President, speaking of keeping our Nation safe, 
the Senate has work of our own to do this week to ensure the safety and 
security of our Nation. In addition to fighting this historic pandemic, 
it is

[[Page S2388]]

also our job to keep sight of the other threats to national security 
that are still evolving, independent of COVID-19.
  Far from any frontline hospital, the PRC's domineering approach to 
contested territories in the South China Sea is keeping the men and 
women of the U.S. Seventh Fleet on high alert.
  From dark corners of cyber space, Russia busies our national security 
and intelligence experts with a steady flow of infectious propaganda 
and disinformation.
  From the Mediterranean to the Gulf of Aden, Iran continues to expand 
its regional influence, sow division, promote terror, and threaten 
America and its partners.
  And across Afghanistan, the Taliban, al-Qaida, and ISIS continue to 
undermine the work of an international coalition and a representative 
  These are just a few of the global threats that were with us long 
before the COVID-19 crisis, and they have only gotten worse during the 
  History reminds us that when great nations confront profound 
challenges at home, their enemies and competitors do not pause their 
own efforts until the situation becomes more stable. Rather, from 
Beijing to Moscow, to caves in the Middle East, our adversaries would 
be tickled pink if the coronavirus caused the United States to lose our 
ability to multitask.
  Some of our Democratic colleagues have implied recently that it is 
beneath the Senate--beneath the Senate--to spend time on any business 
that does not exclusively pertain to the pandemic. I could not disagree 
more strongly. Common sense tells us that this crisis demands more 
vigilance on the other fronts of national security, not less. When we 
take our oaths of office as U.S. Senators, we swear to defend the 
Constitution against all enemies, foreign and domestic. This 
coronavirus may have shoved its way to the top of that list, but the 
list is still a long one, indeed.
  Unfortunately, for several weeks now, our Nation has been less 
prepared than normal to defend ourselves against those who wish us 
harm, and it is not because of the coronavirus. It is because House 
Democrats have failed to act.
  Back in March, the Senate passed a clean short-term extension of key 
authorities under the Foreign Intelligence Surveillance Act, while a 
broader renegotiation was under way. After the shameful abuses of the 
FISA process that marred the 2016 Presidential campaign, there was a 
clear need for meaningful reforms to bring more daylight and 
accountability into the process. But at the same time, many of us on 
both sides of the aisle were absolutely intent on preserving these 
critical national security tools that have helped keep America safe.
  While discussions were under way on how to strike the right balance, 
the Senate passed a bipartisan short-term extension so these important 
tools could remain in our national security professionals' hands while 
Congress got our act together. Unfortunately, Speaker Pelosi let that 
extension sit on her desk and gather dust. So, for more than 8 weeks--8 
weeks--these important tools have gone dark.
  Fortunately, the Attorney General and Members of Congress have worked 
together to craft a compromise solution that will implement needed 
reforms while preserving the core national security tools. These 
intense discussions produced a strong bill that balances the need for 
accountability with our solemn obligation to protect our citizens and 
defend our homeland.
  I understand several of our colleagues believe this compromise bill 
is not perfect. Sadly, imperfection is a fact of life when it comes to 
compromise legislation. While I respect my distinguished colleagues 
whose amendments we will be voting on later today, I urge Senators to 
vote against them. The current bill in its current form already strikes 
the correct and delicate balance, and there is certainly no guarantee 
that another, new version of this legislation would necessarily pass 
the House or earn the President's support. This version has already 
done both. We cannot let the perfect become the enemy of the good when 
key authorities are currently sitting expired and unusable.
  In sum, while the Senate continues overseeing the national response 
to the coronavirus crisis, we are also making sure the pandemic does 
not inflict even greater harm by distracting us from other threats and 
challenges that preceded it.
  Off the floor, our committees are working through a number of 
pressing national security nominations, from the Director of National 
Intelligence to the Secretary of the Navy, to other high-level openings 
at the Pentagon. When the time comes, I hope we will be able to fill 
these crucial openings promptly through bipartisan cooperation on the 
floor. I hope our Democratic colleagues think carefully before applying 
reflexive partisan delays even to vital security positions during a 
global emergency.
  We cannot put Homeland Security on autopilot because another crisis 
has our attention. The Senate can, will, and must continue to pay 
attention to both.


[Congressional Record Volume 166, Number 90 (Wednesday, May 13, 2020)]
[Pages S2388-S2412]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


  The PRESIDING OFFICER. Under the previous order, the Senate will 
proceed to the consideration of H.R. 6172, which the clerk will report.
  The senior assistant legislative clerk read as follows:

       A bill (H.R. 6172) to amend the Foreign Intelligence 
     Surveillance Act of 1978 to prohibit the production of 
     certain business records, and for other purposes.

  Mr. McCONNELL. 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. SCHUMER. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


  The PRESIDING OFFICER. The Senator from Montana

                               H.R. 6172

  Mr. DAINES. Mr. President, Americans want their privacy protected. 
For far too long, the Patriot Act and the Foreign Intelligence 
Surveillance Act, commonly referred to as FISA, have been used to 
trample the civil liberties of American citizens. For Montanans, the 
right to privacy is so fundamental that it is enshrined in our own 
constitution. In fact, very few States have such protections, but the 
drafters of the Montana Constitution recognized that privacy was 
essential to exercising all of the other freedoms that we hold so dear.
  The bill the U.S. House has sent us does have some good reforms, and 
it has some good provisions in it, including a provision from my 
bipartisan bill with my colleague from Oregon, Senator Wyden, called 
the Safeguarding Americans' Private Records Act, which would revoke the 
now terminated call detail record program, which secretly collected 
data on our cell phones and our land lines, as well as on our private 
conversations. Yet the House bill fails to enact real reforms to FISA 
that will

[[Page S2397]]

actually protect the privacy of the American people. We saw what a 
handful of scornful government bureaucrats did to President Trump when 
they abused FISA to serve their political motives. Our own government 
spied on an American citizen--a political adviser to then-Candidate 
Trump--with no oversight.
  What happened to President Trump can happen to anybody for any 
purpose, and that is a very serious problem. Republican or Democrat, we 
can't allow the abuse of our government intelligence services to be 
used for political attacks. It puts our democracy in danger, and it 
undermines the trust and the confidence that our citizens place in 
these same institutions that are meant to protect them.
  The House bill fails to prohibit the warrantless searches of browsing 
data in internet search history, and it fails to include any meaningful 
oversight and accountability. We need to get government out of our 
private lives and, instead, prioritize freedom and privacy. We can and 
must protect our national security and protect our civil liberties by 
making targeted reforms that will keep everyday Americans' privacy 
secure and continue to allow the government to go after the bad guys. 
The House bill does not go far enough, and we cannot compromise on an 
issue that is so vital to the very foundations of our government.
  Montanans sent me to Congress to get government off their backs, and 
I am working not only to get government off their backs but to get 
government out of their phones, out of their computers, and out of 
their private lives. At the end of the day, this is about protecting 
privacy, and today, this day, we have the opportunity to get these 
reforms right. I have been working on behalf of Montanans, with my 
Senate colleagues across the aisle, to ensure we take a very bipartisan 
approach to this issue
  In speaking on the Wyden-Daines amendment we will be voting on 
shortly, my bipartisan amendment is simple. It protects all Americans' 
civil liberties by prohibiting the collection of browser data and 
internet search history under section 215 of the Patriot Act. Browser 
data is some of the most personal and revealing information that can be 
collected on private citizens. Your internet search history can reveal 
extremely intimate information, including personal health data, 
religious beliefs, political beliefs, where you might go on your next 
vacation, even what you bought for your mom this past Mother's Day. I 
don't think the government should have access to such private 
information without a warrant. Section 215 of the Patriot Act is 
supposed to investigate potential terrorists, not spy on our own 
Americans' browser data.
  Let me be clear. My amendment doesn't stop the intelligence community 
from doing its job. I am grateful for our intelligence community, and 
it doesn't prevent it from doing its job or from accessing the data it 
needs to keep Americans safe. It simply requires our intelligence 
agencies to abide by the Constitution and work within our Nation's 
laws, which means requesting a probable cause warrant to get this type 
of information. That means they might have to go to a judge and prove 
they have a valid reason to believe that someone is involved in 
espionage or in a possible terrorism operation. Without my bipartisan 
amendment, the government will be able to access browser data through 
the secret 215 spy program with little to no oversight.
  At the end of the day, this is about securing our most basic Fourth 
Amendment rights, to protect our citizens' most personal data. In fact, 
recently, the Supreme Court found in the Carpenter decision that the 
government needed a warrant to access cell site location data because 
of how personal and invasive that information is.
  The current House bill before us does have a prohibition for the 
collection of cell site location data under section 215, and that is a 
good thing. My amendment simply extends this prohibition to include 
browser data and internet search history, which is even more sensitive 
and personal than location data.
  I agree with many of my colleagues that we need to have the tools in 
place to help find and stop our Nation's enemies, those who seek to 
harm America. We all agree on that, but we also need to make sure we 
are protecting Americans from our own government's spying and 
intervening in our personal lives. My amendment balances these 
important civil liberties and our national security by allowing the 
government to track down terrorists while also stopping them from 
violating the rights of law-abiding citizens.
  This is not a zero-sum game. We can have both. This amendment has 
strong bipartisan support. Senator Wyden and I have been working on 
this issue for months, and we are joined by a long list of bipartisan 
cosponsors, including Republican Senators Lee, Braun, and Cramer, as 
well as by Democratic Senators Leahy, Udall, Markey, and many more. The 
amendment is also supported by a diverse group of stakeholders across 
the political spectrum, from FreedomWorks and Americans for Prosperity 
on one end to the ACLU and Demand Progress on the other. Americans 
across the country overwhelmingly back this amendment.
  This is a core constitutional issue that brought a Democrat from 
Oregon together with a Republican from Montana. Montanans and 
Oregonians may have different priorities, but we all believe strongly 
in the right to privacy, in protecting our civil liberties, and in 
preserving our American way of life. I urge my Senate colleagues to 
stand with Senator Wyden and me to protect the privacy of all 
Americans, and I urge them to vote in favor of this amendment.
  Before I yield to Senator Wyden, I will also take a minute to speak 
in support of the Lee-Leahy amendment.
  This bipartisan amendment strengthens and clarifies the role and the 
authority of the amici in the FISA court. Unfortunately, we continue to 
see serious abuses and misuse of the FISA process. Most notably, the 
Department of Justice's inspector general found major abuses in 
applications to surveil President Trump's campaign adviser Carter Page. 
This abuse is just the tip of the iceberg.
  We need serious reforms that protect American citizens from 
government surveillance, and the Lee-Leahy amendment does just that. It 
gives Americans a fighting chance and brings some clarity and, 
importantly, some transparency to the FISA court. I encourage my 
colleagues to also join me in supporting this Lee-Leahy amendment.
  I see that my distinguished colleague and friend, the Senator from 
Oregon, Ron Wyden, is on the floor.
  I yield to Senator Wyden for his remarks.
  The PRESIDING OFFICER. The Senator from Oregon.

                           Amendment No. 1583

  Mr. WYDEN. Mr. President, I call up amendment No. 1583.
  The PRESIDING OFFICER. The clerk will report.
  The bill clerk read as follows:

       The Senator from Oregon [Mr. Wyden] proposes an amendment 
     numbered 1583.

  Mr. WYDEN. Mr. President, I ask unanimous consent that the reading of 
the amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment is as follows

 (Purpose: To remove internet website browsing information and search 
history from scope of authority to access certain business records for 
    foreign intelligence and international terrorism investigations)

       On page 7, strike lines 13 and 14 and insert the following:
     cell site location or global positioning system information.
       ``(C) An application under paragraph (1) may not seek an 
     order authorizing or requiring the production of internet 
     website browsing information or internet search history 

  Mr. WYDEN. Mr. President, I thank my colleague from Montana for our 
work on this effort, and I hope we can count on strong support from his 
caucus, the Senate majority, when we vote in a little bit.
  I rise to offer this bipartisan amendment because I think a basic 
question needs to be asked at this unique time: Is it right, when 
millions of law-abiding Americans are at home, for their government to 
be able to spy on their internet searches and their web browsing 
without its having a warrant? Should law-abiding Americans have to 
worry about their government's looking over their shoulders from the 
moment they wake up in the morning and turn on their computers to when 

[[Page S2398]]

go to bed at night? I believe the answer is no, but that is exactly 
what the government has the power to do without this bipartisan 
  I start by reflecting for a moment on how Americans are using the 
internet these days. They are helping kids with homework, checking out 
prescription drug prices for a sick parent, and visiting scores of 
different websites. In a pandemic, the internet may be their only 
connection to the outside world.
  So the questions we are presenting are, Don't those Americans deserve 
some measure of privacy? Don't they deserve better than their 
government's snooping into the websites they visit? How can this be 
that the government can spy on them when they are not suspected of 
doing anything wrong? Most importantly, how is this OK in America?
  With web browsing and searches, you are talking about some of the 
most intimate, some of the most personal, some of the most private 
details of the lives of Americans. Every thought that can come into 
people's heads can be revealed in an internet search or in a visit to a 
website: their health histories, their medical fears, their political 
views, their romantic lives, their religious beliefs. Collecting this 
information is as close to reading minds as surveillance can get. It is 
the digital mining of the personal lives of the American people.
  Now, typical Americans may think to themselves: I have nothing to 
worry about. I have done nothing wrong. The government has no reason to 
suspect me of anything. Why do I need to worry?
  Unfortunately, the question is not whether you did anything wrong. 
The question is whether government agents believe they have the right 
to look at your web searches. In other words, without this bipartisan 
amendment, it is open season on anybody's most personal information.
  Now, there is a simple solution: require a warrant. With this 
amendment, the government can go to court and, with a warrant, collect 
whatever it needs from those who actually threaten the safety of our 
people. In an emergency--something I feel very strongly about and 
worked for as a member of the Intelligence Committee--the Government 
can use emergency provisions, collect the information immediately, and 
settle up with the court later, proving once again that liberty and 
security are not mutually exclusive. This type of amendment helps to 
get you both.

  Now I will give a brief explanation of how we got here. Right now the 
Government can collect web browsing and internet search history without 
a warrant under section 215 of the PATRIOT Act. Section 215, from the 
beginning, has been the most controversial and dangerous provision of 
the FISA law. That is because it is so extraordinarily broad and so 
vague. Under section 215, the Government can collect just about 
anything, as long as the Government believes it is relevant to an 
investigation. This can include the private lives of many innocent, 
law-abiding Americans. As I indicated, they don't have to do anything 
wrong. They don't have to be suspected of anything. They don't even 
have to have been in contact with anyone suspected of anything. Their 
personal information in some way just has to be connected for relevance 
to what the Government is looking for.
  Back in 2001, when Congress passed the PATRIOT Act, Americans were 
rightly concerned about their Government collecting their library 
borrowing records without a warrant. My colleagues and the Presiding 
Officer might remember it because this was nationwide. People were up 
in arms about the prospect of the Government looking at library records 
of books they borrowed and the like.
  Well, I will state that what we are talking about today--looking at 
web history, browsing--it is thousands of times more invasive of 
privacy than the library records Americans were concerned about years 
  There is, regrettably, a long history of abuse of section 215. A few 
years ago, the Government decided it could use section 215 to justify 
the collection of every American's phone records. The Government 
secretly decided that phone records of millions of innocent law-abiding 
Americans were, again, somehow connected, somehow relevant to something 
the Government wanted. They wanted to get it without a warrant. It was 
only when this abuse was publicly revealed that Congress stepped in and 
began reining in the Government's phone record collection.
  The Supreme Court did determine recently that physical tracking of 
Americans as they move around requires a warrant. In this bill, 
Congress is finally getting around to stopping the Government from 
using section 215 to conduct warrantless collections of certain 
location data. The irony is--and I say this to my colleagues because of 
this unique time--that now that Americans have been asked to stay home 
and not move around so as to help our country fight this unprecedented 
contagion, they are more vulnerable to abusive surveillance than ever 
before. I think that is wrong.
  Whether they are in North Dakota, Washington State, Montana, Oregon, 
or in any of our home States, people are at home and they are living 
their lives online. Now more than ever I would say to Senators of both 
political parties--because I have long felt that these issues were 
fundamental to ensuring that we prove, as I stated earlier, that 
liberty and security are not mutually exclusive--that smart policies 
give you both, and not-so-smart policies don't give you either. During 
this pandemic, Americans deserve assurances that the Government isn't 
spying on them as they are home, where they think they are going to 
have some measure of privacy, and, probably, until they heard this 
debate, didn't know the Government could spy on them at home while they 
move around the internet.
  Americans deserve to know at this unique time that the Government 
does not engage in digital tracking of their personal lives. The 
warrantless collection of Americans' web browsing history offers 
endless opportunities for abuse.
  Donald Trump has called for an investigation of his political 
enemies. Attorney General Barr has injected himself into investigations 
that affect the personal interests of Donald Trump. All it would take 
is some innocent American's web browsing history to be deemed relevant 
to an investigation, and the Government is off to the races, collecting 
all of that personal information. Then, it wouldn't even matter whether 
that web browsing history had anything to do with the original goal of 
the investigation. For any number of reasons, the web browsing history 
of that innocent American could reveal, potentially, such embarrassing 
information that the person would be humiliated--humiliated--for years 
to come and, of course, it can be used against him or her.
  This is not a partisan proposition. Any administration given the 
direction of the law absent this amendment could be tempted to collect 
the web browsing and internet search history of political enemies--
politicians activists, journalists.

  Just before I wrap up, I am going to touch on some of the arguments 
against this amendment, because having served on the Intelligence 
Committee and having followed these issues closely, invariably, at some 
point in this discussion, someone is going to come and say: This 
bipartisan amendment is going to be pretty much the end of Western 
civilization as we know it. We are not going to be safe. It is not 
going to protect our liberties. It is going to set up arbitrary 
  I want to show how these arguments don't hold water. The first 
argument is that the Government needs this information before it can 
get a warrant. But without web browsing history, there is still plenty 
of information available to the Government, even without a warrant--
phone and email data, subscription data, business records. The biggest 
response to this argument is that it is Congress's responsibility to 
determine when some information is so sensitive that it requires a 
warrant. In this bill that was done with respect to geolocation 
information. I believe that digital tracking of innocent Americans 
demands the same protection.
  Let me say, as I did earlier, when there is an emergency, something 
that I have made a priority in my work on the Intelligence Committee, 
the government can go get the information immediately and then come 
back to the court later on and settle up.
  The other argument that I imagine we will hear is that this amendment

[[Page S2399]]

will create protections for Americans that don't exist in the criminal 
context. The problem with that argument is that Congress isn't 
legislating on the criminal law right now, but it does have a unique 
opportunity to prevent intrusive surveillance of Americans to prevent 
  FISA requires an extra layer of protection. That is because, unlike 
criminal law, FISA is secret. It is also a nonadversarial process. It 
relies on Government representations that we have learned, from the 
inspector general, are frequently inaccurate. When the Government uses 
FISA information against Americans, there is little or no notice or 
opportunity to challenge the surveillance.
  Most of all, it is subject to something that I have come to call 
``secret law.'' It is a law that nobody knows about in a coffee shop in 
Washington, North Dakota, or Montana. It is basically secretly 
interpreted. As I pointed out on the floor in the past, warning the 
American people about these secret interpretations, Americans sometimes 
don't learn about them for years, and when they find out, they are 
really unhappy.
  So I want to touch briefly on the amendment of the Senate majority 
leader, the McConnell amendment. Not only is the majority leader trying 
to block the bipartisan effort that we have been talking about, but his 
amendment would actually make the situation even worse. Right now the 
Government can collect web browsing internet searches of Americans 
without a warrant under section 215, but so far there has not been 
explicit congressional authorization for the Government to do it. The 
McConnell amendment would, for the first time, provide that 
authorization. The McConnell amendment would, in effect, tell the 
Government that Congress approves of the warrantless collection of 
Americans' most private information. Wrap your arms around that one--
Congress explicitly approving of the warrantless collection of 
Americans' most private information when millions of Americans are 
sitting at home today in Kansas, South Dakota, and all across the 
country, sitting at home believing that they have some expectation of 
  The McConnell amendment pretends to limit the collection of this 
personal information of Americans, but it is just a fake. What the 
amendment really does is meaningless, since the Government cannot 
collect content. But no one knows what that means when it comes to web 
browsing and internet search history. There is no clarity in the 
statute. There is no settled law in the courts. The Supreme Court has 
not weighed in. What the McConnell amendment does is invite the 
Attorney General to produce yet more secret law, yet another secret 
interpretation, designed, as these things always are, to allow for the 
collection of the broadest set of Americans' most private information.
  At some point, I believe the Senate needs to focus on a little bit of 
history. Section 215 was secretly interpreted and abused in the past. 
The use of these authorities to spy on Americans' web browsing and 
search history is a screaming alarm, warning us of future abuses. What 
the American people deserve and what this amendment provides is clarity 
and transparency about what the government cannot collect without a 
  One last argument is that we have heard that, if the Senate amends 
this bill, oh, my goodness, the House just will not do anything at all. 
Well, there were 75 House Democrats and many Republicans--I want to 
underline that, 75 House Democrats and many Republicans--who voted 
against this bill because it didn't include enough privacy reform. 
Adding key reforms like this amendment could only strengthen its 
support in the House.
  Americans will not tolerate warrantless Government spying on their 
most private information when they find out--when they find out that 
right now, during a pandemic, the Government has the authority to do 
that. I can't accept that level of unchecked surveillance.
  I am very grateful for the sponsors that we have. They were listed by 
my colleague from Montana.
  There are a great array of organizations that share our view that 
liberty and security are not mutually exclusive.
  I ask unanimous consent that a list of those organizations be printed 
in the Record
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

       Access Now; American Booksellers for Free Expression 
     American Civil Liberties; Union Americans for Prosperity; 
     Brennan Center for Justice at NYU School of Law Center for 
     Security; Race and Rights Constitutional Alliance Council on 
     American-Islamic Relations (CAIR); Defending Rights & 
     Dissent; Demand Progress Due Process Institute; Electronic 
     Privacy Information Center (EPIC); Free Press Action; 
     FreedomWorks; Government Accountability Project; Government 
     Information Watch; Human Rights Watch; Liberty Coalition; 
     Media Alliance; National Association for the Advancement of 
     Colored People (NAACP); National Coalition Against 
     Censorship; Oakland Privacy; PEN America; People Demanding 
     Action; People For the American Way; Progress America; Public 
     Citizen; Restore The Fourth; Secure Justice; South Asian 
     Americans Leading Together (SAALT); TechFreedom; The Project 
     for Privacy and Surveillance Accountability; Union of 
     Concerned Scientists; Woodhull Freedom Foundation; X-Lab.

  Mr. WYDEN. Mr. President, I will state that I think right now, during 
a unique time in American history when millions of Americans are at 
home and on line, they deserve to have the U.S. Senate step up, defend 
their privacy and constitutional rights, and protect them from abuses. 
This is the moment to stand up for those millions of people who have to 
be at home because we come together to deal with this contagion.
  I believe the Senate ought to pass the Wyden-Daines amendment and 
oppose the McConnell amendment to protect those people at home. In 
wrapping up, I also want to commend our friends Senators Leahy and Lee. 
As was noted, they have worked with us on a host of these efforts. I 
think they have a terrific amendment to strengthen the oversight role 
of the independent amici of the FISA Court. I hope Senators will also 
support it.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Cramer). The Senator from Montana.
  Mr. DAINES. Mr. President, this amendment is about protecting 
American privacy, about making sure that Government is not intruding on 
our most private data. It is about respecting the Constitution and the 
Fourth Amendment. The Wyden-Daines amendment simply prohibits the 
collection of browser and search history data under section 215. 
Browser data is extremely personal, sensitive, and should require a 
probable cause warrant to access. This data shouldn't be allowed to be 
collected behind closed doors with no traditional oversight.
  We can protect national security and protect the civil liberties and 
the constitutional rights of Americans at the same time. It is plain 
and simple. If you want to see an American's search history, than you 
better go to a judge and get a warrant.
  I yield the floor.

                       Vote on Amendment No. 1583

  The PRESIDING OFFICER. The question is on agreeing to the amendment.
  Mr. BARRASSO. I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  The clerk will call the roll.
  The bill clerk called the roll.
  Mr. THUNE. The following Senators are necessarily absent: the Senator 
from Tennessee (Mr. Alexander) and the Senator from Nebraska (Mr. 
  Further, if present and voting, the Senator from Tennessee (Mr. 
Alexander) would have voted ``nay.''
  Mr. DURBIN. I announce that the Senator from Washington (Mrs. Murray) 
and the Senator from Vermont (Mr. Sanders) are necessarily absent.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 59, nays 37, as follows:

                      [Rollcall Vote No. 89 Leg.]


     Cortez Masto

[[Page S2400]]

     Scott (FL)
     Scott (SC)
     Van Hollen



                             NOT VOTING--4

  The PRESIDING OFFICER. On this vote, the yeas are 59, the nays are 
  Under the previous order requiring 60 votes for the adoption of this 
amendment, the amendment is not agreed to.
  The amendment (No. 1583) was rejected.


                               H.R. 6172

  Mr. CORNYN. Mr. President, both at home and around the world, the 
fight to defeat the coronavirus seems all consuming. It has changed 
virtually every part of our lives, from the way we work to how we 
grocery shop. It dominates our conversations, our news cycles, and 
social media feeds. It is easy to feel like this is the only threat 
that the world is facing right now, but even a pandemic isn't enough to 
stop those who want to bring harm to our country or to the American 
people. As our fight against the coronavirus wages on, our dedicated 
counterterrorism and counterintelligence experts continue their 
critical work to identify potential threats against our country and to 
prevent them from being successful.
  One of the most powerful tools in their toolbox is the ability to 
covertly gather information about bad actors. That is absolutely 
critical to national security. Yet our commitment to public safety can 
be at odds with privacy and individual liberty. So we, as a country, 
must have sincere trust in both the people and the processes that 
govern that activity. That is why I fear that recent events have put 
our trust of both in grave jeopardy.
  Last December, the inspector general for the Department of Justice 
released his report on the FBI's counterintelligence investigation of 
the Trump campaign and its purported contacts with Russia. This 480-
page report outlined a pattern of concerning behavior by those who were 
charged with protecting and defending the United States and upholding 
our laws. The inspector general has detailed a number of truly 
disturbing and alarming facts about how the Russia investigation was 
conducted, specifically when it has come down to the abuse of the 
Foreign Intelligence Surveillance Act. He has identified 7 mistakes--I 
think he was being generous in calling them mistakes--in the initial 
Carter Page FISA

[[Page S2410]]

application and an additional 10 mistakes, or errors, in 3 renewals.
  Now, these were not typos or misspelled words. These were significant 
and material errors that misled and affected the independent judgment 
of the FISA Court, or the Foreign Intelligence Surveillance Court. In 
other words, they presented erroneous information--sometimes by 
omission, sometimes by commission--which may have affected the decision 
of the Foreign Intelligence Surveillance Court.
  To make matters worse, even as new and exculpatory information came 
to light, this information was not provided to the FISA Court. In a 
nutshell, this report raised a big red flag and led to the inspector 
general's conducting a subsequent audit on unrelated cases to see how 
widespread the problems were, but that audit revealed even more 
  The inspector general recently released an interim report based on a 
sample of 29 FISA applications. For four of these, the FBI could not 
even locate the Woods files, which were meant to include supporting 
documents for the claims made in the sworn applications. For the 
remaining 25 applications, an average of 20 ``issues'' were found in 
each, with 1 application having 65 ``issues.'' You might as well use 
the word ``errors.'' This is alarming and absolutely unacceptable.
  The Foreign Intelligence Surveillance Act has been amended several 
times over the more than 30 years that it has been law, particularly 
since 9/11. In light of these developments, it is time to, once again, 
strengthen the oversight of our Nation's intelligence activities and 
restore trust in our critical institutions.
  FISA reform is part of the congressional ``to do'' list. It has been 
for some time, and it still is. Before key provisions could expire last 
year, Congress extended these authorities through mid-March to provide 
time for a debate over future reforms. Of course, back then, no one 
suspected that we would be working on a pandemic response when that 
deadline arrived. With the coronavirus spreading across the country, it 
was hardly the time to debate the long-term changes that should be made 
to this program. So the Senate passed a short-term extension. Had our 
colleagues in the House passed that bill, those authorities would have 
still been intact through the end of the month.
  Unfortunately, as we know, that is not what happened. The Foreign 
Intelligence Surveillance Act's authorities expired nearly 2 months 
ago, and now our national security experts are without the tools they 
need to keep the American people safe. That must change.
  The bipartisan bill that we are considering today would reauthorize 
certain FISA provisions that are important to our national security 
while it would make significant reforms to prevent future abuses like 
we saw in 2016. At a time when it is clearly needed, this bill would 
strengthen the congressional oversight of the FISA process. It would 
also take steps to prevent future abuse of the FISA Court by requiring 
transcripts of court proceedings and increasing penalties for those who 
knowingly abuse the process for inappropriate reasons.
  One of the most significant changes we would see as a result is an 
end to the call detail record, or CDR, program. This program was 
created in 2015 to replace bulk collection with a more targeted 
approach, but the program has been riddled with issues from the start. 
Two years ago, the National Security Agency said that ``technical 
irregularities'' made it difficult to actually implement the program. 
The National Security Agency received a jumbled mess of call detail 
records from phone companies, and it was not able to separate the data 
records it should have received from the ones it should not have 
received. As a result, it ended up deleting all of the records dating 
back to 2015 when the CDR program was established. Clearly, this 
program was not delivering the targeted approach it was intended to 
provide. In fact, it just created more work--all to end up empty handed
  This legislation will put an end to the CDR program. The National 
Security Agency has said the cost simply outweighs the benefit, but we 
want to make sure we are also not wasting valuable human resources on a 
program that is failing to achieve its intended purpose. Above all, 
this legislation will restore authorities our counterintelligence and 
counterterrorism experts need to protect the American people.
  In order for these authorities to protect the American people and 
serve their intended purpose, we need trust--trust in the FISA Court, 
trust in our congressional committees, and trust in the professionals 
who actually work with these authorities. The USA FREEDOM 
Reauthorization Act will go a long way to restoring that trust while we 
continue to work on longer term reforms and empower our intelligence 
officials to carry out their sworn duties.
  This bill received broad, bipartisan support in the House, and I hope 
it will enjoy similar support in the Senate. This legislation will 
ensure that these critical national security tools remain intact while 
it takes serious quality control measures to prevent abuse.
  We can't have a repeat of the disastrous FISA abuse in 2016, and we 
cannot allow these critical surveillance authorities to disappear. The 
best of tools can be misused by people who are intent on abusing their 
power. That is what happened when the inspector general revealed the 
FISA warrants that were issued against the Trump campaign and Trump's 
associates in an effort to try to come up with some evidence of 
collusion and obstruction. In the end, not even the special counsel was 
able to find enough evidence to be able to make those cases.
  We shouldn't confuse the tools with the people who abuse those tools. 
We know that the Attorney General, William Barr; Chris Wray, the FBI 
Director; and Mr. Durham, the U.S. attorney who has been deputized by 
the Attorney General, are currently conducting investigations that 
will, perhaps, even lead to criminal charges, indictments, and 
potential convictions of those who abused these authorities in the 
  That should not change our attitude toward providing these necessary 
tools--things like business record collection, roving wiretaps, and 
lone wolf authority. By and large, these are tools that are used by law 
enforcement on a daily basis for domestic critical cases. Yet we are 
going to deny those tools to our counterintelligence officials? It 
makes no sense whatsoever. Our counterintelligence and counterterrorism 
experts rely on those authorities to keep us safe, and it is time we 
return this critical tool to their toolbox. I look forward to 
supporting this legislation and to restoring these lapsed authorities, 
which are critical to our national security.
  I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. LEAHY. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER (Mrs. Blackburn). Without objection, it is so 

                           Amendment No. 1584

  Mr. LEAHY. Madam President, I must admit that when I look around this 
body, it looks a little bit different than when I first came here, and 
I will be glad when we get back to normal. In the meantime, I want to 
say that I entered the Senate in the wake of Watergate in 1975. It was 
a time when the American people's faith in their institutions, 
including their intelligence agencies, was profoundly shaken.
  I remember standing on this floor, and the very first vote I cast was 
in favor of creating the Select Committee to Study Government 
Operations with Respect to Intelligence Activities and the Rights of 
Americans. That was called the Church Committee. It was the forerunner 
of our Intelligence Committee.
  Through the Committee's work, the American people soon learned of 
years of surveillance and other abuses that had occurred at the hands 
of the U.S. intelligence agencies. In response, the Senate came 
together, Republicans and Democrats together, to pass sweeping reforms 
to rein in this overreach.
  So much has improved over the 45 years with respect to the 
intelligence agencies' compliance with the law. I must admit that 
seeing the changes over the years gives me a great deal of confidence 
that we can continue to develop. But we do know that there are some 
inexcusable problems that remain. We have seen time and again

[[Page S2411]]

that the system we created with the government lawyers seeking approval 
for surveillance in a secret surveillance court falls short of 
protecting Americans' due process rights.
  I know a lot of our intelligence professionals. I have no doubt that 
our intelligence professionals work very hard. They are dedicated to 
protecting Americans, and they strive to follow the rules. I don't 
doubt that at all, but I can't escape the conclusion that the rules are 
simply not good enough. A process that operates in total secrecy, with 
no checks on the government's allegations or portrayal of the facts at 
issue, is bound to fall short. When it comes to justice--justice which 
is a bedrock of our democracy--well, to say it falls short is not good 
  Last fall, the Justice Department inspector general issued a report 
that detailed 17 errors or omissions in the FBI's FISA applications to 
surveil former Presidential campaign adviser Carter Page. While the 
inspector general did not find that the mistakes were politically 
motivated, those of us who were at those hearings know that the errors 
were nonetheless serious, and we have since learned that they were not 
isolated incidents.
  In March, just 2 weeks after the House passed the very legislation we 
are considering today, the inspector general released an even more 
damning report. He sampled just 29 applications for FISA surveillance. 
In those 29, he found deficiencies in 25 of the 29, with an average of 
20 issues on each application. Errors included a failure to disclose 
all exculpatory evidence. That is simply unacceptable. It strongly 
indicates that something is wrong and needs to be fixed within the FISA 
  I joined with Senator Lee of Utah. We have been working together to 
do just that--to define what the fixes might be. The heart of our 
proposal is to improve the amici program we created with the assistance 
of Members such as Senator Blumenthal with the USA FREEDOM Act of 2015. 
We created a process by which the FISA Court could appoint amici to 
provide an independent perspective on certain complex issues before the 
court. Amici do not act as defense attorneys, representing the target 
of the surveillance. They serve the court. But we gave the court narrow 
grounds to require the appointment of amici--novel or significant 
interpretation of law.
  While amici have since served the court well, they have only been 
appointed 16 times over the last 5 years. We have to do more to 
encourage the appointment of amici in cases that involve serious 
constitutional issues.
  My amendment with Senator Lee would create a presumption of amici 
participation in cases involving significant First Amendment issues, 
not just ``exceptional concerns'' as in the House bill. Importantly, we 
also create a presumption of amici participation when the FBI considers 
the case to be a ``sensitive investigative matter'' which the FBI would 
call an investigation involving the domestic media, a domestic 
religious organization, or a public official. I think all of us should 
agree that in those instances we ought to have somebody independently 
looking at them.
  Most critically, though, we would leave the decision to appoint amici 
entirely up to the FISA judge. Even if it would fall into all of these 
categories they could still say no. As a result, the argument that the 
expanded amici participation would duly burden the court doesn't even 
withstand the slightest scrutiny. If the judge believes amici would not 
be appropriate because the case is too time sensitive or too simple 
or too routine or for any other reason--any other reason--they have the 
discretion to not appoint amici at all. Under our amendment, throughout 
the FISA process, the judge maintains complete control. It is not a 
burden on the court. What it is doing is empowering the court. It is up 
to them.

  In reality, the number of cases that would have amici participation 
under our amendment would remain manageable. The cases likely to raise 
significant civil liberties issues would almost certainly be a small 
subset of applications related to U.S. persons, as foreigners abroad do 
not have constitutional rights like Americans. The total number of such 
U.S. person cases last year was just over 200.
  Perhaps this is why the courts themselves would not anticipate that 
our amendment would create a significant financial burden. The 
Administrative Office of the Courts estimated costs to be about 
$225,000 a year, which they can pay for out of their discretionary 
budget. There is plenty of money in there. In fact, the CBO scored the 
amendment as zero.
  But the benefits go far beyond zero. Responding to the latest 
inspector general report, which found serious issues in 25 of the 29 
FISA applications they reviewed, we would require that the government 
turn over all material exculpatory information to the court and make it 
available to amici, too, if one is appointed. That is a basic due 
process protection available in every public courtroom in America. It 
certainly was when I was a prosecutor. The FISA Court should be no 
  So, I think, with this any Senator should look at what Senator Lee 
and I have done. We have an opportunity to reform our flawed 
surveillance authorities. These opportunities don't come by often. We 
shouldn't squander it, especially when the Justice Department's own 
inspector general has been alerting us of the widespread problems 
within the FISA process.
  After the Church Committee found abuses within our intelligence 
agencies, something I first learned of when I got elected to the 
Senate, I saw the Senate come together, Republicans and Democrats, to 
respond decisively. While much has improved since then, they now are 
confronted with serious but solvable problems within the FISA process. 
I hope I have given the Senate and both parties something for them to 
come together.
  I want to thank Senator Lee for his partnership on this issue and 
also for his steadfast devotion to protecting the rights of all 
Americans. I am proud to stand with Senator Lee today. I urge all of 
our fellow Senators to stand with us, because if you stand with us you 
are standing up for the Constitution. Support this amendment, stand 
with the American people, and stand with our Constitution.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. LEE. Madam President, I call up my amendment No. 1584 and ask 
that it be reported by number.
  The PRESIDING OFFICER. The clerk will report the amendment by number.
  The senior assistant legislative clerk read as follows:

       The Senator from Utah [Mr. Lee] proposes an amendment 
     numbered 1584.

  (The amendment is printed in today's Record under ``Text of 
  Mr. LEE. Madam President, I ask unanimous consent to speak for a 
period not to exceed 5 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered
  Mr. LEE. Madam President, it has been an honor and a privilege to 
work with my friend and distinguished colleague, the senior Senator 
from Vermont, on this issue. Senator Leahy and I have, over the past 
decade, worked together on a number of projects including this one, 
including the USA FREEDOM Act.
  Senator Leahy and I come from different political parties and 
different ends of the political spectrum, and yet we share much in 
common, including a devotion to our families, a devotion to God, a 
devotion to this great country, and a devotion to the Constitution that 
has fostered the development of the greatest civilization the world has 
ever known. It is an honor and a privilege to stand with Senator Leahy 
in defense of the Fourth Amendment and the other rights articulated in 
our Constitution.
  Senator Leahy and I have confronted many opponents, and many 
opponents to the Lee-Leahy amendment have made arguments that I think 
need to be mentioned one final time before we vote on this matter. Many 
of them are arguing that this amendment would somehow hamper the 
ability of the FISA Court to approve applications quickly in the case 
of an emergency. This is simply untrue. In all these circumstances in 
which it would apply, our amendment would allow the FISA Court to issue 
a finding saying the appointment of amicus would, in that circumstance, 
be inappropriate. This the FISA Court could do in a single sentence.
  The FBI or some of its proclaimed self-appointed defenders also 

[[Page S2412]]

that this might make it harder for them to get surveillance 
applications approved. Let me just remind everyone that we are talking 
about the rights of U.S. persons--that is, of U.S. citizens and lawful 
permanent residents of the United States. These are rights that deserve 
to be protected. We have to remember that the purpose of the 
Constitution is not to make it easier to govern. The purpose of the 
Constitution is to provide structure and limitations on government 
because governments sometimes make mistakes.
  I find it especially tone deaf that the very agency--the very 
Bureau--that has now been found to have been in violation of its own 
policies and procedures--in not just one but two inspector general 
reports in the past year--for failing to follow its own policies is now 
the agency that many people are trying to defend in saying that we 
can't inform the American people of what is going on and we can't 
improve the process by which that agency operates.
  Power is always vulnerable to abuse. Warnings were made when this 
process was put into place, and exactly the kinds of abuses that we 
have now seen are the types of abuses that have occurred over and over 
or are the same ones that were foreseen.
  This isn't an indictment of any one agency or administration or 
person or political party. It is an affirmation of the Founding 
Fathers' trust in the checks and balances that they put in place in our 
founding document. James Madison so eloquently expressed this principle 
in Federalist 51:

       If men were angels, no government would be necessary. If 
     angels were to govern men, neither external or internal 
     controls on government would be necessary. In framing a 
     government which is to be administered by men over men, the 
     great difficulty lies in this: We must first enable the 
     government to control the governed; and in the next place, 
     oblige it to control itself.

  We cannot--notwithstanding the urging of many--simply wave our hands 
and say: No, we don't have to worry about this. It is OK because we 
have to worry about national security or it is OK because this is about 
foreign intelligence or this is about foreign intelligence gathering.
  We know that what the Lee-Leahy amendment is designed to protect are 
the rights of the American people--of U.S. persons--U.S. citizens and 
lawful permanent residents. Reforms in this amendment do not take 
anything away from the National Security Agency--nothing. We are just 
injecting greater fairness and accountability into this process.
  Insofar as we decide to have these programs, we have to have someone 
accountable in them. We have to have a process by which the information 
brought to bear within the Foreign Intelligence Surveillance Act Court 
is accountable and reviewable by someone.
  It makes sense to expand incrementally, mildly, but necessarily, the 
amicus curiae provisions that were put in place 4 years ago with the 
  I truly believe that we can find a proper balance here between 
privacy and security. I also believe that our privacy and our security 
are not at odds. Our privacy is, indeed, a part of our security and our 
security part of our privacy. You cannot have one without the other.
  The Lee-Leahy amendment brings us closer to that balance. I invite 
all my colleagues to support it and look forward to the moment, not far 
from now, when we will pass it.
  I yield the floor.

                       Vote on Amendment No. 1584

  The PRESIDING OFFICER. Under the previous order, the question is on 
agreeing to the amendment.
  Mr. LEE. I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  The clerk will call the roll.
  The senior assistant legislative clerk called the roll.
  Mr. THUNE. The following Senators are necessarily absent: the Senator 
from Tennessee (Mr. Alexander) and the Senator from Nebraska (Mr. 
  Further, if present and voting, the Senator from Tennessee (Mr. 
Alexander) would have voted ``yea.''
  Mr. DURBIN. I announce that the Senator from Washington (Mrs. Murray) 
and the Senator from Vermont (Mr. Sanders) are necessarily absent.
  The PRESIDING OFFICER (Mr. Cramer). Are there any other Senators in 
the Chamber desiring to vote or change their vote?
  The result was announced--yeas 77, nays 19, as follows:

                      [Rollcall Vote No. 90 Leg.]


     Cortez Masto
     Scott (FL)
     Scott (SC)
     Van Hollen



                             NOT VOTING--4

  The PRESIDING OFFICER. Under the previous order requiring 60 votes 
for the adoption of this amendment, the amendment is agreed to.
  The amendment (No. 1584) was agreed to.
  The PRESIDING OFFICER. The Senator from Colorado.
  Mr. GARDNER. Mr. President, I wish to congratulate my colleague from 
Utah for his extraordinary work to continue to protect the civil 
liberties of the people of this country.