[Congressional Record Volume 156, Number 48 (Thursday, March 25, 2010)]
[Senate]
[Pages S2108-S2109]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




               EXPIRING DOMESTIC SURVEILLANCE PROVISIONS

  Mr. WYDEN. Madam President, the U.S. Senate recently approved a 1-
year extension of the expiring provisions of the Patriot Act with a 
voice vote. The extension was subsequently approved by the House and 
signed into law by President Obama. As I have argued for years that the 
Patriot Act is in need of serious reform, I would like to outline the 
changes I will keep working for as a member of the Senate Select 
Committee on Intelligence.
  Many of my colleagues who agree with me that reforms are needed think 
it would be difficult to have a constructive debate on domestic 
surveillance in the Senate right now. They think that next year will be 
a better time to have this debate, and that waiting will lead to a 
better opportunity to restore the best possible balance between 
fighting terrorism ferociously and protecting American rights and 
freedoms.
  Personally, I think that the reforms I am outlining today should have 
been made years ago. But based on the debate on the Patriot Act that 
took place in the Senate Judiciary Committee last fall, I agree that 
those of us who believe in reform need to spend more time making our 
case to our colleagues and the American people. So I will briefly 
address those reforms that I think are necessary, and the ways that I 
would like to see this debate move forward between now and next 
February, when these provisions will come up for renewal again.
  The three expiring provisions all involve domestic surveillance in 
one way or another. One regards the use of roving wiretaps for 
intelligence purposes, one regards the surveillance of so-called ``lone 
wolf'' terrorist suspects, and one involves government access to 
business records. I have cosponsored legislation that would create 
additional safeguards on the use of roving wiretaps, and I think that 
it is appropriate to debate whether the ``lone wolf'' statute should be 
reformed or repealed, particularly given the fact that it has never 
been used. But it is the business records provision, section 215 of the 
Patriot Act, which I believe is most in need of reform.
  Section 215 of the Patriot Act is referred to as the ``business 
records'' provision, but it actually covers any personal information 
that is held by any sort of institution or third party--including 
banks, hospitals, libraries, and retail stores of all types. And it 
doesn't just apply to documents; it applies to ``any tangible thing'', 
which means it covers things like blood or tissue samples as well.
  Prior to 9/11, if the FBI or another government agency was conducting 
an intelligence investigation and wanted to obtain an individual's 
personal records from the business or institution that was holding 
them, the government agency had to have evidence indicating that the 
person whose records they wanted was a terrorist or a spy. Section 215 
of the Patriot Act lowered this standard to permit the government to 
collect any records deemed ``relevant to an investigation''.
  ``Relevant'' is an incredibly broad standard. In fact, it could 
potentially permit the government to collect the personal information 
of large numbers of law-abiding Americans who have no connection to 
terrorism whatsoever.
  As an alternative to ``relevance'', I and other senators have 
advocated for what I call the ``nexus to terrorism'' standard. Under 
this standard, the government could use the Patriot Act to obtain any 
records pertaining to a terrorist suspect, or the suspect's activities, 
or any individual that the suspect has been in contact with or directly

[[Page S2109]]

linked to in any way. This is a much broader standard than the one that 
existed before 9/11, and it would give the FBI and other government 
agencies significant flexibility in terrorism investigations. But it is 
much tighter than the standard that is currently written into law as 
part of the Patriot Act, and it would greatly reduce potential 
intrusions on the privacy of law-abiding Americans.
  Switching to a ``nexus to terrorism'' standard is not a radical 
proposal. In 2005, the Senate passed a bill that would have replaced 
the ``relevance'' standard with one requiring a ``nexus to terrorism''. 
In fact, this bill was passed by unanimous consent. And President Obama 
cosponsored similar legislation in 2007. So this proposal has received 
significant bipartisan support in the past. And in my judgment, it 
would go a long, long way toward restoring the balance between security 
and freedom that is so important to Americans.
  I have cosponsored legislation that would make ``nexus to terrorism'' 
the standard for accessing individuals' business records for 
intelligence purposes. Over the next year, I will continue to argue for 
the merits of this standard. I will also continue to press for more 
transparency about how the Patriot Act has actually been interpreted 
and applied in practice. As I have said before, there is key 
information that is relevant to the debate on the Patriot Act that is 
currently classified. Over the past two and a half years, I have 
pressed the executive branch to declassify this information in a 
responsible way, so that members of Congress and the public can have an 
informed debate about what the law should actually be.
  I have raised this issue numerous times, in classified letters and in 
meetings with high-level Administration officials. Many of these 
classified letters were also signed by other senators, including 
Senator Feingold and Senator Durbin. In a partial response to our 
requests, the Attorney General and the Director of National 
Intelligence have prepared a classified paper that contains details 
about how some of the Patriot Act's authorities have actually been 
used, and this paper is now available to all members of Congress, who 
can read it in the Intelligence Committee's secure office spaces.
  Providing this classified paper to Congress is a good first step, and 
I would certainly encourage all of my colleagues to come down to the 
Intelligence Committee and read it, but by itself this step does not go 
nearly far enough. Ensuring that members of Congress have information 
about how the law has been interpreted and applied is obviously 
essential, but it is just as essential for the public to have this 
information as well. Most members of the public do not expect to have 
detailed information about how intelligence collection is actually 
conducted, but they do expect to understand the boundaries of what the 
law does and does not allow, so that they can ratify or reject the 
decisions that public officials make on their behalf.
  I am particularly concerned about this because I believe that there 
is a discrepancy between what most Americans believe is legal and what 
the government is actually doing under the Patriot Act. In my view, any 
discrepancy of this sort is intolerable and untenable, and can only be 
fixed by greater transparency and openness. This is why I think it is 
so important for the executive branch to declassify the information 
that I have asked them to take action on.
  I expect that convincing the executive branch to take decisive action 
on this issue will not be easy, and that it will not happen quickly. 
But I have been engaged on this issue for two and a half years already, 
so I think it should be clear by now that I do not intend to give up. 
As Congress prepares to resume debate on the Patriot Act next year, I 
will continue to press the administration to find a way to release this 
information in a manner that serves the public interest and does not 
harm national security. And I hope that my colleagues will join me in 
this effort.

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