[Congressional Record Volume 161, Number 72 (Tuesday, May 12, 2015)]
[Senate]
[Pages S2772-S2779]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                            USA FREEDOM ACT

  Mr. LEE. Mr. President, I am here to speak in support of the USA 
FREEDOM Act, a bill that would restrain the power of government to 
collect data on phone calls made by average, everyday, ordinary, law-
abiding American citizens--300 million-plus Americans--without any 
suspicion that any one of them is engaged in any kind of criminal 
activity, any kind of activity involving the collection of foreign 
intelligence.
  I appreciate the support I have received for this bill, and I 
appreciate the opportunity to work with my distinguished colleague, the 
senior Senator from Vermont. Senator Leahy and I feel passionate about 
this issue. Although Senator Leahy and I come from different ends of 
what some would perceive as the political spectrum and although we 
don't agree on every issue, there are many issues on which we do agree. 
There are many issues, such as this one, on which we can say that these 
issues are neither Republican nor Democratic, they are neither liberal 
nor conservative, they are simply American issues, constitutional 
issues. They are issues that relate to the proper order of government. 
They are issues that relate to the rule of law itself.
  The Constitution of the United States protects the American people 
against unreasonable searches. It does so against a long historical 
backdrop of government abuse. Over time, our Founding Fathers came to 
an understanding that the immense power of government needs to be 
constrained because those in power will tend to accumulate more power 
and, in time, they will tend to abuse that power unless that power is 
carefully constrained.
  America's Founding Fathers were informed in many respects by what 
they learned from our previous national government, our London-based 
national government. They were informed, in part, by the story of John 
Wilkes.
  John Wilkes--not to be confused with John Wilkes Booth, the assassin 
of Abraham Lincoln--John Wilkes was a member of the English Parliament. 
He was a member of Parliament who in 1763 found himself at the 
receiving end of King George III's justice.
  In 1763, John Wilkes had published a document known as the North 
Briton No. 45. The North Briton was a weekly circular, a type of news 
magazine in England--one that, unlike most of the other weeklies in 
England at the time, was not dedicated to fawning praise of King George 
III and his ministers. No. This weekly would from time to time 
criticize the actions of King George III and his ministers.
  At the time John Wilkes published the North Briton No. 45, he became 
the enemy of the King because he had criticized certain remarks 
delivered by the King in his address to Parliament. While not openly 
directly critical of the King himself, he criticized the King's 
minister who had prepared the remarks.
  For King George III, this was simply too much; this simply could not 
stand. So, before long, on Easter Sunday 1763, John Wilkes found 
himself arrested, and he found himself subject to an invasive search--a 
search performed pursuant to a general warrant and one that didn't 
specify the names of the individuals to be searched, the particular 
places to be searched, or the particular items subject to that invasive 
search. It said, basically, in essence: Go and find the people 
responsible for this horrendous publication, the North Briton No. 45, 
and go after them. Search through their papers and get everything you 
want, everything you need.
  John Wilkes decided that his rights as an Englishman prevented this 
type of action--or should have, under the law, prevented this type of 
action--so he chose to fight this action in court. It took time. John 
Wilkes spent some time in jail, but he eventually won his freedom. He 
was subsequently reelected to multiple terms in Parliament. Because he 
fought this battle against the administration of King George III, he 
became something of a folk hero across England.
  In fact, the number 45, with its association with the North Briton 
No. 45--the publication that had gotten him in trouble in the first 
place--the number 45 became synonymous not only with John Wilkes but 
also with the cause of freedom itself. The number 45 was a symbol of 
liberty not only in England but also in America. People would celebrate 
by ordering 45 drinks for their 45 closest friends. People would 
recognize this symbol by writing the number 45 on the walls of taverns 
and saloons. The number 45 came to represent the triumph of the common 
citizen against the all-powerful force of an overbearing national 
government.
  With the example of John Wilkes in mind, the Founding Fathers were 
rightly wary of allowing government access to private activities and 
the communications of citizens. They feared not only that the 
government could seize their property but that it could gain access to 
details about their private lives. It was exactly for this reason that 
when James Madison began writing what would become the Fourth

[[Page S2773]]

Amendment in 1789, he used language to make sure that general warrants 
would not be the norm and, in fact, would not be acceptable in our new 
Republic.
  Ultimately, Congress proposed and the States ratified the Fourth 
Amendment to the U.S. Constitution, which provides in pertinent part 
that any search warrants would have to be warrants ``particularly 
describing the place to be searched and the persons or things to be 
seized.''
  General warrants are not the norm in America. General warrants are 
not acceptable in America. They are not compatible with our 
constitutional system. Yet, today, we see a disturbing trend, one that 
bears some eerie similarities to general warrants in the sense that we 
have the NSA collecting information--data--on every phone call that is 
made in America. If a person owns a telephone, if a person uses a 
telephone, the NSA has records going back 5 years of every number a 
person has called and every number from which a person has received a 
call. It knows when the call was placed. It knows how long the call 
lasted.
  While any one of these data points might themselves not inform the 
government too much about a person, researchers using similar data have 
proven that the government could, if it wanted to, use that same data 
set, that same database to discern an awful lot of private information 
about a person. The government could discern private information, 
including a person's religious affiliation; political affiliation; 
level of activity politically, religiously, and otherwise; the 
condition of a person's health; a person's hobbies and interests. These 
metadata points, while themselves perhaps not revealing much in the 
aggregate, when put into a large database, can reveal a lot about the 
American people.
  This database is collected for the purpose of allowing the NSA to 
check against possible abuses by those who would do us harm, by agents, 
foreign intelligence agents, spies. But the problem here is that the 
NSA isn't collecting data solely on numbers that are involved in 
foreign intelligence activity, nor is it collecting data solely on 
phone numbers contacted by those numbers suspected to be involved in 
some type of foreign intelligence activity. They are just collecting 
all of the data from all of the phone providers. They are putting it in 
one database and then allowing that database to be searched.
  This issue was recently challenged in court. It was challenged and 
was recently the subject of a ruling issued by the U.S. Court of 
Appeals for the Second Circuit based in New York. Just a few days ago, 
this last Thursday, the Second Circuit concluded that Congress, in 
enacting the PATRIOT Act, in enacting section 215 of the PATRIOT Act--
the provision in the PATRIOT Act that claims to justify this bulk data 
collection program--the Second Circuit concluded that section 215 of 
the PATRIOT Act does not authorize bulk collection. It does not 
authorize the NSA to simply issue orders to telephone service providers 
saying: Send us all of your data. The language in the PATRIOT Act 
permitted the government to access the records that were ``relevant to 
an authorized investigation.'' That is the language from section 215 
that is at issue.
  The government argued in that case that the term ``relevant'' in the 
context of the NSA's work meant and necessarily included every record 
regarding every telephone number used by every American. By 
interpreting it this way, they tried to basically strip all meaning 
from the word ``relevant.'' If Congress had meant every record, 
Congress could have said every record. It did not. That is not to say 
it would have been appropriate for Congress to do so, and had Congress 
legislated in such broad terms, I suspect there would have been 
significant concern raised, if not in court then at least within this 
Chamber and within the House of Representatives. But, importantly, 
Congress did not adopt that statutory language. Congress instead 
authorized NSA to collect records that are ``relevant to an authorized 
investigation.''
  The Second Circuit agreed that this is a problem, holding last week 
that the bulk collection program exceeded the language of the statute--
specifically, the word ``relevant.'' While ``relevant'' is a broad 
standard, it is intended to be a limiting term whose bounds were read 
out of the statute by a government willing to overreach its bounds.
  The proper American response to government overreach involves setting 
clear limits--limits that will allow the people to hold the government 
accountable. We must not permit this type of collection to continue.
  While it is true that a single call record reveals relatively little 
information about a person, again, the important thing to remember is 
that when we aggregate all of this data together, the government can 
tell a lot about a person. I have every confidence that and I am 
willing to assume for purposes of this discussion that the hard-
working, brave men and women who work at the NSA have our best 
interests at heart. I am willing to assume for purposes of this 
discussion that they are not abusing this database as it stands right 
now.
  Some would disagree with me in that assumption, but let's proceed 
under that assumption, that they are law-abiding individuals who are 
not abusing their access to this database. Who is to say the NSA will 
always be inhabited only by such people? Who is to say what the state 
of affairs might be 1 year from now or 2 years or 5 years or 10 or 15 
years? We know that in time people tend to abuse these types of 
government programs.
  We know from the Church report back in the 1970s that every 
administration from FDR through Nixon used our Nation's intelligence-
gathering activities to engage in espionage. It is not a question of if 
such tools will be abused; it is a question of when they will be 
abused. It is our job as Senators to help protect the American people 
against excessive risk of this type of abuse. That is why Senator Leahy 
and I have introduced the USA FREEDOM Act. It directly addresses the 
bulk data collection issue while preserving essential intelligence 
community capabilities.
  Rather than relying on the government's interpretation of the word 
``relevant,'' our bill requires that the NSA include a specific 
selection term--a term meant to identify a specific target--and that 
the NSA then use the term to limit to the greatest extent reasonably 
practicable the scope of its request.
  We give the government the tools to make targeted requests in a 
manner that parallels the current practice at the NSA--in many 
respects, a practice that is currently limited only by Presidential 
preferences.
  This bill would enable the court to invite precleared privacy experts 
to help decide how to address novel questions of law, if the court 
wanted input.
  The bill also would increase our security in several ways, including 
by providing emergency authority when a target of surveillance enters 
the United States to cause serious bodily harm or death and instituting 
the changes necessary to come in line with the Bush era nuclear 
treaties.
  This bill was negotiated in consultation with the House Judiciary 
Committee, the House Intelligence Committee, and the intelligence 
community at large. It is supported by the chairman and ranking members 
of the House Judiciary Committee, the House Intelligence Committee, and 
the Director of National Intelligence. It enjoys broad support from 
industry and from privacy groups.
  This is a compromise--an important compromise that will enable us to 
protect Americans' privacy while giving the government the tools it 
needs to keep us safe. This is a compromise that is expected to pass 
the House overwhelmingly, and it is a bill I think we should take up 
and pass as soon as they have voted.
  So I would ask my friend, my colleague, the distinguished senior 
Senator from Vermont, about his insights. My friend from Vermont has 
served his country well, having served a significant amount of time in 
the U.S. Senate. Prior to that time, he served as a prosecutor--a 
prosecutor who had to follow and was subject to the Fourth Amendment.
  I would ask Senator Leahy, in his experience as a prosecutor and as a 
Senator, what he sees as the major benefits to this legislation and the 
major pitfalls to the NSA's current practice of bulk data collection.
  The PRESIDING OFFICER (Mr. Flake). The Senator from Vermont.

[[Page S2774]]

  Mr. LEAHY. Mr. President, the senior Senator from Utah has laid out 
very well the reasons for the changes proposed in the House and 
proposed by his and my bill. He also said something we should all think 
about. A couple of minutes ago, he said: Assuming everybody is 
following the rules today, are they going to follow the rules tomorrow 
or next year or the year after?
  When he mentioned that, he also mentioned my years as a prosecutor. 
Let me tell a short story. I became one of the officers of the National 
District Attorneys Association and eventually vice president. A number 
of us had occasion to meet the then-Director of the FBI, J. Edgar 
Hoover. I thought back to some of the frightening things he said about 
investigating people because of their political beliefs. You could tell 
Communists because they were all ``hippies driving Volkswagens'' was 
one of the things he said; secondly, that the New York Times was 
getting too leftist in some of its editorials and was coming very close 
to being a Communist paper, and he was making plans to investigate it 
as such. Think about that for a moment. The New York Times had 
criticized him editorially, and he was thinking he should investigate 
it as a Communist paper.
  Not long thereafter, he died. We found out more and more about the 
secret files he had on everybody, from Presidents to Members of 
Congress. What if a J. Edgar Hoover had the kinds of tools that are 
available today? That would be my response to the Senator from Utah, 
and that is why I totally agree with him that we have to think about 
not just today but what might happen in the future.
  For years, Section 215 of the USA PATRIOT Act has been used by the 
NSA to justify the bulk collection of innocent Americans' phone 
records. Americans were appropriately outraged when they learned about 
this massive intrusion into their privacy.
  Look at what happened last week. The highly respected Federal Second 
Circuit Court of Appeals confirmed what we have known for some time: 
The NSA's bulk collection of Americans' phone records is unlawful, it 
is not essential, and it must end. That basically says it all. It is 
unlawful, it is not essential, and it should end.
  Under the government's interpretation of Section 215, the NSA or FBI 
can obtain any tangible thing so long as it is ``relevant'' to an 
authorized investigation. Think for a moment back to J. Edgar Hoover--
and I do not by any means equate the current Director of the FBI or his 
predecessors with what happened back then, but if you have somebody 
with that mindset.
  In the name of fighting terrorism, the government convinced a secret 
court that it needed to collect billions of phone records of innocent 
Americans--not because those phone records were relevant to any 
specific counterterrorism investigation but, rather, because the NSA 
wanted to sift through them in the future. This is an extraordinarily 
broad reading of the statute--one that I can say, as someone who was 
here at the time, that Congress never intended--and the Second Circuit 
rightfully held that such an expansive concept of ``relevance'' is 
``unprecedented and unwarranted.'' Such an interpretation of 
``relevance'' has no logical limits.
  This debate is not just about phone records. If we accept that the 
government can collect all of our phone records because it may want to 
sift through them someday to look for some possible connection to 
terrorists, where will it end?
  We know that for years the NSA collected metadata about billions of 
emails sent by innocent Americans using the same justification. Should 
we allow the government to sweep up all of our credit card records, all 
of our banking or medical records, our firearms or ammunition 
purchases? Or how about anything we have ever posted on Facebook or 
anything we have ever searched for on Google or any other search 
engine? Who wants to tell their constituents that they support putting 
all this information into government databases?
  I say enough is enough. I do not accept that the government will be 
careful in safeguarding this secret data--so careful that they allowed 
a private contractor named Edward Snowden to walk away with all this 
material. What is to stop anybody else from doing exactly the same 
thing?
  During one of the six Judiciary Committee hearings that I convened on 
these issues last Congress, I asked the then-Deputy Attorney General 
whether there was any limit to this interpretation of Section 215. I 
did not get a satisfactory answer--that is, until the Second Circuit 
ruled last week and correctly laid out the implication of this theory. 
They said that if the government's interpretation of Section 215 is 
correct, the government could use Section 215 to collect and store in 
bulk ``any other existing metadata available anywhere in the private 
sector, including metadata associated with financial records, medical 
records, and electronic communications (including e-mail and social 
media information) relating to all Americans.'' I don't think you are 
going to find many Americans anywhere in the political spectrum who 
want to give this government or any other government that kind of power 
because nothing under the government's interpretation would stop it 
from collecting and storing in bulk any of this information.
  The potential significance of this interpretation is staggering. It 
is no wonder that groups as disparate as the ACLU and the National 
Rifle Association have joined together to file a lawsuit in the Second 
Circuit to stop this bulk collection program.
  Congress finally has the opportunity to make real reforms not only to 
Section 215 but to other parts of FISA that can be used to conduct bulk 
collection. Tomorrow, the House will consider the bipartisan USA 
FREEDOM Act of 2015. Senator Lee and I have introduced an identical 
bill in the Senate. If enacted, our bill will be the most significant 
reform to government surveillance authorities since the USA PATRIOT Act 
was passed nearly 14 years ago. Our bill will end the NSA's bulk 
collection program under Section 215. It also guarantees unprecedented 
transparency about government surveillance programs, allows the FISA 
Court to appoint an amicus to assist it in significant cases, and 
strengthens judicial review of the gag orders imposed on recipients of 
national security letters.
  The USA FREEDOM Act is actually a very commonsense bill. That is why 
Senator Lee and I were able to join together on it. He is right--we 
come from different political philosophies, different parts of the 
country, and obviously we don't agree on all things, but we agreed on 
this because it makes common sense and it is something that should 
bring together Republicans and Democrats. It was crafted with 
significant input from privacy and civil liberties groups, the 
intelligence community, and the technology industry. It has support 
from Members of Congress and groups from across the political spectrum.
  Mr. President, I ask unanimous consent to have printed in the Record 
editorials from the Washington Times, the Washington Post, USA TODAY, 
and the Los Angeles Times in support of the USA FREEDOM Act.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                [From the Washington Times, May 7, 2015]

                        Big Brother Takes a Hit


 The courts give an assist to repealing intrusions into the privacy of 
                                everyone

       Sen. Mitch McConnell, the Republican majority leader, has 
     made it clear to his colleagues that he wants the USA Patriot 
     Act, including the controversial parts of the legislation 
     scheduled to expire at the end of June, fully extended. He's 
     seems ready to do whatever he can to get his way.
       The USA Patriot Act was enacted in the days following Sept. 
     11, when the nation trembled on the verge of panic, with 
     little debate and little opposition in Congress. The Patriot 
     Act has been recognized since on both left and right as 
     unfortunate legislation that granted too much power to the 
     government to snoop into the lives, calls and emails of 
     everyone in the name of national security.
       Mr. McConnell thought he could force the Senate to either 
     let the law lapse, to panic everyone again, or get an 
     extension without modification until the year 2020. Even as 
     Mr. McConnell praised the National Security Agency's reliance 
     on the act to justify the collection of telephonic 
     ``metadata'' from millions of Americans, the 2nd U.S. Circuit 
     Court of Appeals was writing the decision, released Thursday, 
     declaring the government program, first revealed by Edward 
     Snowden, illegal because the language of the act cannot be 
     read to justify such sweeping government action.
       The lawsuit was brought by the American Civil Liberties 
     Union and joined by groups,

[[Page S2775]]

     including the National Rifle Association, and welcomed by 
     civil libertarians across the land. To continue the program, 
     the Obama administration would presumably have to persuade 
     Congress to adopt language specifically authorizing the NSA 
     to collect and hold such data. That attempt might be 
     forthcoming.
       The court's decision gives a boost to the advocates for the 
     USA Freedom Act, which would modify the Patriot Act. The 
     Freedom Act is expected to pass in the House and Mr. 
     McConnell's strategy to kill it in the Senate may not work 
     now, given the appeals court's decision.
       Sen. Patrick Leahy, the ranking Democrat on the Senate 
     Judiciary Committee, read the 97-page opinion and said, 
     ``Congress should take up and pass the bipartisan USA Freedom 
     Act, which would ban bulk collection under Section 215 and 
     enact other meaningful surveillance reforms.''
       The opinion of the liberal senator from Vermont is shared 
     by the conservative Rep. James Sensenbrenner of Wisconsin, an 
     author of the Patriot Act who has since regretted its excess. 
     He joined the ACLU lawsuit as ``a friend of the court,'' and 
     said Thursday that ``it's time for Congress to pass the USA 
     Freedom Act in order to protect both civil liberties and 
     national security with legally authorized surveillance.''
       When the chips are down, blind partisanship, with genuine 
     cooperation, can still be put aside.
                                  ____


                [From the Washington Post, May 10, 2015]

               New Rules for the National Security Agency

       For months, Congress has debated the National Security 
     Agency's telephone metadata collection program, without 
     legislative result. Now two factors have combined to make 
     that frustrating situation even less sustainable. The 
     legislative authority that first the George W. Bush 
     administration and then the Obama administration cited for 
     the program, Section 215 of the Patriot Act, is expiring on 
     June 1. And, on Thursday, the U.S. Court of Appeals for the 
     2nd Circuit ruled that their interpretation of Section 215 
     was wrong anyway.
       Congress needs to respond, and the sooner the better. To be 
     sure, the court's ruling has no immediate practical impact, 
     since the three-judge panel considered it superfluous to stop 
     the program less than a month before Section 215 expires. The 
     court's reasoning, though, could, and should, influence the 
     debate. Judge Gerard E. Lynch's opinion noted that the NSA's 
     mass storage of data, basically just in case it should be 
     needed for a subsequent inquiry, stretched the statute's 
     permission of information-gathering ``relevant to an 
     authorized investigation'' beyond ``any accepted 
     understanding of the term.''
       Intelligence and law enforcement must be able to gather and 
     analyze telephone metadata, but that requirement of national 
     security can, and must, be balanced by robust protections of 
     privacy and civil liberties. Under the current system, those 
     protections consist of the NSA's own internal limitations on 
     access to the database, subject to supervision by the Foreign 
     Intelligence Surveillance Court (FISC)--which operates in 
     secret and considers arguments only from the government. A 
     democratic society requires more explicit, transparent 
     protections.
       There is, fortunately, a promising reform proposal readily 
     available: the USA Freedom bill, which enjoys bipartisan 
     support in both chambers as well as broad endorsement from 
     President Obama--and the affected private industries as well. 
     In a nutshell, it would abandon the bulk collection of the 
     NSA's metadata, and warrantless searches of it, in favor of a 
     system under which telecommunications firms retained the 
     information, subject to specific requests from the 
     government. Those queries, in turn, would have to be approved 
     by the FISC. Along with the bill's provisions mandating 
     greater disclosure about the FISC's proceedings, the 
     legislation would go a long way toward enhancing public 
     confidence in the NSA's operations, at only modest cost, if 
     any, to public safety.
       The measure has passed the House Judiciary Committee by a 
     vote of 25 to 2. In the Senate, it failed to muster 60 votes 
     last year when Democrats were in the majority, and its 
     prospects appear even dimmer now that the Republicans are in 
     control; their leader, Sen. Mitch McConnell (Ky.) favors 
     reauthorizing Section 215 as-is.
       Mr. McConnell's view--that the statute does, indeed, 
     authorize bulk metadata collection--was legally tenable, 
     barely, before the 2nd Circuit's opinion. Now he should 
     revise it. If the Senate renews Section 215 at all, it should 
     only be a short-term extension to buy time for intensive 
     legislating after June 1--with a view toward enacting reform 
     promptly. If the anti-terrorism effort is to be sustainable, 
     Congress must give the intelligence agencies, and the public, 
     a fresh, clear and, above all, sustainable set of 
     instructions.
                                  ____


                     [From USA Today, May 10, 2015]

              Patriot Act Calls for Compromise in Congress


     proposal on nsa and phone records would go a long way toward 
                    rebalancing security and liberty

       In the years since the USA Patriot Act was approved in the 
     frantic days following 9/11, it has become steadily more 
     apparent that the law and the way it was applied were an 
     overreaction to those horrific events.
       The most flagrant abuse is the government's collection of 
     staggering amounts of phone ``metadata'' on virtually every 
     American. That program--which collects the number you call, 
     when you call and how long you talk--was secret until Edward 
     Snowden's leaks confirmed it in 2013.
       Last Thursday, a federal appeals court--the highest to rule 
     on the issue--found that the program is illegal. You'd think 
     the unambiguous ruling from a unanimous three-judge panel 
     would finally force changes to the bulk collection program.
       But that's not necessarily going to happen, even though a 
     compromise has emerged in Congress that would go a long way 
     toward rebalancing security and liberty.
       Under the compromise, the data would remain with the phone 
     companies instead of the government. Requests to access the 
     database would have to be far more limited, and each would 
     require approval from the Foreign Intelligence Surveillance 
     Court.
       The new procedure would eliminate some of the phone 
     collection program's most intrusive features, while keeping 
     the security it offers at a time when the terrorist group 
     Islamic State brings new threats. The measure has support 
     from Republicans and Democrats, liberals and conservatives, 
     and a long list of civil liberties and privacy groups.
       It would also satisfy the court, which didn't dispute 
     Congress' right to create such a program, just the executive 
     branch's right to do so without Congress' assent.
       Yet instead of embracing the compromise, Senate Majority 
     Leader Mitch McConnell, Republican presidential hopeful Sen. 
     Marco Rubio of Florida, and others are working to sabotage 
     it. They want the Senate to ensure that the program will 
     continue just as it is after parts of the Patriot Act expire 
     at the end of this month.
       While the phone program's benefits are dubious, its costs 
     are clear. Several major tech companies have said that 
     privacy intrusions have hurt U.S. companies. Meanwhile, 
     innocent Americans suffer an assault to their privacy each 
     day the government collects data on their calls. And if this 
     sort of collection goes on, history demonstrates the 
     government is likely to abuse it.
       As the appeals court ruling warned, if the government's 
     interpretation were correct in stretching the law to collect 
     phone data, it could use the same interpretation to ``collect 
     and store in bulk any other existing metadata available 
     anywhere,'' including financial records, medical records, 
     email and social media.
       Choosing between privacy and security in these dangerous 
     times is difficult. But, despite what supporters of bulk 
     collection insist, lawmakers don't have to choose.
       A carefully built compromise allows access to phone 
     records, but with genuine privacy safeguards. The nation 
     would be no less secure. And the civil liberties on which the 
     nation was built would be better protected.
                                  ____


               [From the Los Angeles Times, May 6, 2015]

               The USA Freedom Act: A Smaller Big Brother

       Last fall, Congress was on the verge of doing away with the 
     most troubling invasion of privacy revealed by Edward 
     Snowden: the National Security Agency's indiscriminate 
     collection of the telephone records of millions of Americans. 
     But then opponents cited the emergence of Islamic State as a 
     reason for preserving the status quo. The Senate failed to 
     muster the 60 votes needed to proceed with the so-called USA 
     Freedom Act.
       But the legislation has staged a comeback. Last week the 
     House Judiciary Committee approved a bill of the same name 
     that would end bulk collection--leaving phone records in the 
     possession of telecommunications providers. The government 
     could search telephone records only by convincing a court 
     that there was ``reasonable, articulable suspicion'' that a 
     specific search term--such as a telephone number--was 
     associated with international terrorism. And rules would be 
     tightened so that investigators couldn't search records from, 
     say, an entire state, city or ZIP Code.
       Americans were understandably alarmed in 2013 when Snowden 
     revealed that information about the sources, destination and 
     duration of their phone calls was being vacuumed up by the 
     NSA and stored by the government, which could then ``query'' 
     the database without court approval for numbers connected to 
     suspected terrorists. After initially defending the program, 
     President Obama modified it a bit, but he left it to Congress 
     to make the fundamental change of ending bulk collection.
       We had hoped that Congress would take a fresh look at 
     whether this program is necessary at all, given a 
     presidential task force's conclusion that it was ``not 
     essential to preventing attacks.'' But if Congress is 
     determined to continue the program, it must establish 
     safeguards. The bill does this, though there is room for 
     improvement. For example, unlike last year's Senate bill, 
     this measure doesn't require the government to destroy 
     information it obtains about individuals who aren't the 
     target of an investigation or suspected agents of a foreign 
     government or terrorist organization.
       Approval is likely in the House, but prospects in the 
     Senate are more doubtful. Senate Majority Leader Mitch 
     McConnell (R-Ky.) has said that ending bulk collection of 
     phone records would amount to ``tying our hands behind our 
     backs.''
       That was, and is, a specious objection. Under this 
     legislation, the government can

[[Page S2776]]

     continue to search telephone records when there is a 
     reasonable suspicion of a connection to terrorism. But it 
     will no longer be able to warehouse those records, and it 
     will have to satisfy a court that it isn't on a fishing 
     expedition. Those are eminently reasonable restrictions--
     unless you believe that the war against Islamic State and 
     similar groups means that Americans must sacrifice their 
     right to privacy in perpetuity.

  Mr. LEAHY. Mr. President, additionally, I ask unanimous consent to 
have printed in the Record a letter from the major technology industry 
companies and trade associations in support of the USA FREEDOM Act.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                                     May 11, 2015.
     Hon. John Boehner,
     The Capitol, Washington, DC.
     Hon. Nancy Pelosi,
     The Capitol, Washington, DC.
       Dear Speaker Boehner and Democratic Leader Pelosi: We, the 
     undersigned technology associations and groups, write to 
     express our strong support for H.R 2048, the USA Freedom Act, 
     as reported by the House Judiciary Committee on April 30th by 
     a vote of 25 to two.
       Public trust in the technology sector is critical, and that 
     trust has declined measurably among both U.S. citizens and 
     citizens of our foreign allies since the revelations 
     regarding the U.S. surveillance programs began 2 years ago. 
     As a result of increasing concern about the level of access 
     the U.S. government has to user-generated data held by 
     technology companies, many domestic and foreign users have 
     turned to foreign technology providers while, simultaneously, 
     foreign jurisdictions have implemented reactionary policies 
     that threaten the fabric of the borderless internet.
       The USA Freedom Act as introduced in the House and Senate 
     on April 28th offers an effective balance that both protects 
     privacy and provides the necessary tools for national 
     security, and we congratulate those who participated in the 
     bipartisan, bicameral effort that produced the legislative 
     text. Critically, the bill ends the indiscriminate collection 
     of bulk data, avoids data retention mandates, and creates a 
     strong transparency framework for both government and private 
     companies to report national security requests.
       Meaningful surveillance reform is vital to rebuilding the 
     essential element of trust not only in the technology sector 
     but also in the U.S. government. With 21 days remaining until 
     the sunset of certain national security authorities, we urge 
     you to swiftly move to consider and pass the USA Freedom Act 
     without harmful amendments.

  Mr. LEAHY. Some would argue that no reforms are needed. 
Unfortunately, they do not go into the facts, as the Second Circuit 
did; they invoke fearmongering and dubious claims about the utility of 
the bulk collection programs to defend the status quo. These are the 
same arguments we heard last November when we were not even allowed to 
debate an earlier version of the USA FREEDOM Act because of a 
filibuster.
  Last week, some Senators came to the floor to argue that the NSA's 
bulk collection of phone records might have prevented 9/11. Now, this 
specter is always raised, that it might have prevented 9/11 and is 
vital to national security. We also heard that if we enact the USA 
FREEDOM Act, that will somehow return the intelligence community to a 
pre-9/11 posture. None of these claims can withstand the light of day.
  I will go back to some of the facts--not just hypotheses. Richard 
Clarke was working in the Bush administration on September 11, 2001. I 
asked him whether the NSA program would have prevented those attacks. 
He testified that the government already had the information that could 
have prevented the attacks, but failed to properly share that 
information among Federal agencies. Likewise, Senator Bob Graham, who 
investigated the September 11 attacks as part of the Senate 
Intelligence Committee, also debunked the notion that this bulk 
collection program would somehow have prevented the 9/11 attacks.
  The NSA's bulk collection of phone records simply has not been vital 
to thwarting terrorist attacks. When the NSA was embarrassed by the 
theft of all of their information and the news about the NSA's phone 
metadata program first broke, they defended the program by saying it 
had helped thwart 54 terrorist attacks. Well, I convened public 
hearings on this and under public scrutiny, that figure of 54 initially 
shrunk to: Well, maybe a dozen. We scrutinized that further. They said: 
Well, maybe it was two. Everybody realized that the government had to 
tell the truth in these open hearings. And then they said: Maybe it was 
one. That sole example was not a ``terrorist attack'' that was 
thwarted. It was a material support conviction involving $8,000 not a 
terrorist plot.
  Numerous independent experts also have concluded that the NSA's bulk 
collection program is not essential to national security. I mention 
these things, because as soon as you come down and say: We are all 
going to face another 9/11, we are all going to face ISIS, we are all 
going to face these terrible attacks if we do not have this program--
yet we can show that it has not stopped any attacks.
  The President's Review Group, which included former national security 
officials, stated: The bulk collection of American's phone records was 
not essential to preventing attacks, and could readily have been 
obtained in a timely manner using conventional Section 215 orders.
  So we can go with hysteria and overstatements or we can go with 
facts. In my State of Vermont, we like facts. We should not be swayed 
by fearmongering. Congress cannot simply reauthorize the expiring 
provisions of the USA PATRIOT Act without enacting real reforms.
  When the House passes the USA FREEDOM Act tomorrow and sends it to 
the Senate, we should take it up immediately, pass that bill. The 
American people are counting on us to take action. They did not elect 
us to just kick the can down the road or blindly rubber stamp 
intelligence activities that now have been found by the court to be 
illegal. Congress should pass the USA FREEDOM Act this week.
  I thank my good friend from Utah for yielding to me. I totally agree 
with his position.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. LEE. Mr. President, I ask unanimous consent to extend the 
colloquy for a period of an additional 15 minutes to allow a couple of 
other Members to participate in the colloquy.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LEE. I would like to now hear from my friend and colleague, the 
junior Senator from Nevada, Mr. Heller, and hear his thoughts on how 
people in his State--how people he knows across the country feel about 
this program and what we ought to do about it.
  The PRESIDING OFFICER. The Senator from Nevada.
  Mr. HELLER. Mr. President, today, I rise to join this bipartisan 
group calling for support of the USA FREEDOM Act. I want to begin by 
thanking my friend and colleague from Utah for his hard work and effort 
on behalf of the American people on this, my friend from Vermont for 
his actions also, and other Members of this Chamber.
  Together, what we are trying to do is bring transparency, 
accountability, and, most importantly, freedom to the American people--
freedom from an unnecessary and what has now been declared an illegal 
invasion of American's privacy. I am talking specifically about section 
215 under the PATRIOT Act. Just last week, a Federal appeals court 
ruled that this National Security Agency program that collects 
Americans' calls--these records are now illegal.
  Our national security and protection of our freedom as Americans are 
not mutually exclusive. Allowing the Federal Government to conduct vast 
domestic surveillance operations under section 215 provides the 
government with too much authority. This court's ruling only reaffirms 
that the NSA is out of control.
  Under section 215, the FBI can seek a court order directing a 
business to turn over certain records when they have reasonable grounds 
to believe the information asked for is ``relevant to an authorized 
investigation of international terrorism.'' However, the NSA has 
wrongly interpreted this to mean that all--all--telephone records are 
relevant.
  So they are collecting and storing large amounts of data in an 
attempt to find a small amount of information that might be relevant. 
If we reauthorize these laws without significant reforms, we are 
allowing millions of law-abiding U.S. citizens' call records to be held 
by the Federal Government. I see this as nothing but an egregious 
intrusion of Americans' privacy.
  So what does the NSA know? They know someone from my State in Elko, 
NV, got a call from the NRA and then

[[Page S2777]]

called their Senator. So what does the NSA know? They know someone from 
Las Vegas called the suicide hotline for 20 minutes and then called a 
hospital right after. So what does the NSA know? They know you called 
your church or received a phone call from political action committees.
  So does the previous administration, does this administration or 
perhaps the next administration care about your party affiliation? Do 
they care about your religious beliefs? Do they care about your health 
concerns? How about your activities in nonprofit tax-exempt entities? 
Maybe not today, as the Senator from Utah said, but what about 5 years 
from now, what about 10 years from now and even 15 years from now?
  That is why I have been working with my colleagues since the last 
Congress to pass the USA FREEDOM Act, and I am proud to join as an 
original cosponsor of this bill in this new Congress. Those reforms are 
not just a pipeline dream that will die in the Senate. This is a 
substantive bill that carefully balances the privacy rights of 
Americans and the needs of the intelligence community as they work to 
keep us safe.
  That is why the House Judiciary Committee has passed this bill on a 
bipartisan basis and the full House of Representatives is expected to 
pass it later this week. Let me be clear. We are not here to strip the 
intelligence community of the tools needed to fight terrorism. To my 
colleagues who feel that the USA FREEDOM Act will do this, I would ask 
them to read this letter from our intelligence community.
  In my hand, I have a letter signed by the Attorney General and the 
Director of National Intelligence that was sent to Senator Leahy last 
year. I would like to read a portion of this. ``The intelligence 
community believes that your bill preserves essential intelligence 
community capabilities; and the Department of Justice and the Office of 
the Director of National Intelligence support your bill and believe 
that it is a reasonable compromise that enhances privacy and civil 
liberties and increases transparency.''
  We are not here to harm the operational capabilities of the 
intelligence community who safeguard us every day. What we are here to 
do is provide the American people the certainty that the Federal 
Government is working without violating their constitutional rights. 
That is why I have also consistently opposed and voted against the 
PATRIOT Act during my time in Congress.
  I will do everything I can to end the PATRIOT Act, but if I cannot do 
that, I will work to gut the PATRIOT Act of the most egregious sections 
that infringe upon American citizens' privacy and their civil 
liberties. That is what the reforms of the USA FREEDOM Act begin to 
achieve. This legislation, among other things, will rein in the dragnet 
collection of data by the National Security Agency. It will stop the 
bulk collection of American communication records by ending the 
specific authorization under section 215 of the PATRIOT Act.
  We are reaching a critical deadline as several Foreign Intelligence 
Surveillance Act provisions expire at the end of May. I want to be 
clear that I expect reforms to our surveillance programs, and I will 
not consent to a straight reauthorization of the illegal activities 
that occur under section 215 of the PATRIOT Act.
  It is time for our Nation to right this wrong, make significant 
changes necessary to restore America's faith in the Federal Government, 
and restore the civil liberties that make our Nation worth protecting. 
I want to again thank the Senator from Utah and my colleague from the 
State of Vermont for their hard work and effort on behalf of all 
Americans in protecting their privacies and their civil liberties. I 
will turn my time back over to the Senator from Utah.
  Mr. LEE. Mr. President, we would like to hear next from my friend and 
colleague, the junior Senator from Montana, on this issue.
  The PRESIDING OFFICER. The Senator from Montana.
  Mr. DAINES. Mr. President, I want to thank the Senator from Utah, my 
good friend, for his leadership on the USA FREEDOM Act. I recently 
returned from an official trip to the Middle East with leader McConnell 
and several of my fellow first-term Senators. We met with leaders in 
Israel, Jordan, Iraq, Kuwait, and Afghanistan to discuss the political 
and security issues facing Middle Eastern nations.
  We also met with a number of American servicemembers who are bravely 
securing our country in these crisis-stricken regions and working every 
day to keep our Nation safe from the extreme forces that wish to 
destroy us. These meetings painted a very clear picture; that terror 
imposed by extreme forces such as ISIS and the threats facing our 
allies in the Middle East are real and they are growing every single 
day.
  But the growing presence of ISIS in the Middle East is not just 
affecting the long-term security of nations such as Iraq and Syria, it 
is no longer a risk isolated geographically to the Middle East.
  These extreme Islamic forces are working every day to harm the 
American people within our borders and on our soil. It is critical our 
law enforcement officials and our intelligence agencies have the tools 
they need to find terrorists in the United States and abroad, identify 
potential terror attacks, and eradicate these risks. ISIS is not just 
working to inflict physical damage upon our country and our people, 
this extreme group and other like-minded terrorists are intent on 
destroying our very way of life, our Nation's foundation of freedom and 
justice for all.
  But as we strengthen our intelligence capabilities, we must, with 
equal vigor and determination, protect our Constitution, our civil 
liberties, the very foundation of this country. If the forces of evil 
successfully propel leaders in Washington to erode our core 
constitutional values, we will grant these terrorists a satisfying 
victory. We must never allow this. We must uphold the Constitution. We 
must work to protect the balance between protecting our Nation's 
security while also maintaining our civil liberties and our 
constitutional rights.
  That is why I, similar to so many Montanans, am deeply concerned 
about the NSA's bulk metadata collection program and its impact on our 
constitutional rights. This program allows the NSA to have uninhibited 
access to America's phone records. I firmly believe this is a violation 
of America's constitutional rights and it must come to an end. 
Montanans have also long been concerned that the NSA has overreached 
its legal authority when implementing its bulk data collection program.
  The recent ruling from the New York-based Second Circuit U.S. Court 
of Appeals confirmed it. The court ruled unanimously that section 215 
of the PATRIOT Act does not authorize the NSA's bulk collection of 
Americans' phone metadata, but this is not the first time the legality 
of NSA's bulk data practices have been questioned.
  A 2015 report from the Privacy and Civil Liberties Oversight Board, 
which is a nonpartisan, independent privacy board, found that section 
215 does not provide authority for the NSA's collection program. The 
report raised serious concerns that the NSA's program violated the 
rights guaranteed under the First and Fourth Amendments. The report 
states:

       Under the section 215 bulk records program, the NSA 
     acquires a massive number of calling records from telephone 
     companies every day, potentially including the records of 
     every call made across the Nation. Yet Section 215 does not 
     authorize the NSA to acquire anything at all.

  The report concludes:

       The program lacks a viable legal foundation under section 
     215. It implicates Constitutional concerns of the first and 
     fourth amendments, raises serious threats to privacy and 
     civil liberties as a policy matter, and has shown only 
     limited value. For these reasons the government should end 
     the program.

  I strongly agree. In addition, the independent Commission found that 
the bulk collection program contributed only minimal value in 
combatting terrorism beyond what the government already achieves 
through other alternative means. So claims that this program provides 
unique value to our security were not validated, and, in fact, were 
refused by the Commission.
  As Montana's Senator, I took an oath to protect and defend the 
Constitution. It is a responsibility and a promise I take very 
seriously. That is why I have joined Senators Lee, Leahy, and others to 
introduce the USA FREEDOM Act

[[Page S2778]]

of 2015. This bipartisan legislation will end the NSA's bulk data 
collection program, while also implementing greater oversight, 
transparency, and accountability in the government's surveillance 
activities.
  The USA FREEDOM Act strikes the right balance between protecting our 
security and protecting our privacy. It still allows necessary access 
to information specific to an investigation, with an appropriate court 
order, and provides the flexibility to be able to move quickly in 
response to emergencies, but it stops the indiscriminate government 
collection of data on innocent Americans once and for all.
  I have long fought to defend Montanans' civil liberties, protecting 
privacy and constitutional rights from Big Government overreach. After 
spending 12 years in the technology sector, I know firsthand the power 
that data holds and the threats to American civil liberties that come 
with mass collection.
  As Montana's loan representative in the U.S. House, I cosponsored the 
original USA FREEDOM ACT that would have ended the NSA's abuses and 
overreach. I also supported efforts led by Congressman Justin Amash to 
amend the 2014 Defense appropriations bill and end the NSA's blanket 
collection of Americans' telephone records.
  We made significant ground last year in raising awareness of this 
overreach, but the fight to protect America's civil liberties and 
constitutional freedoms is far from over. That is why I am proud to 
stand today as a cosponsor of the USA FREEDOM Act of 2015 and a strong 
advocate and defender of America's right to privacy. As risks facing 
our homeland and our interests overseas remain ever present, it is 
critical that our law enforcement has the tools they need to protect 
our national security from extremists who would destroy our Nation and 
our very way of life.
  The USA FREEDOM Act provides these tools, but we must also remain 
vigilant to ensure that American civil liberties aren't needlessly 
abandoned in the process. We need to protect and defend the homeland. 
We need to protect and defend the Constitution.
  I stand today with the full confidence that the USA FREEDOM Act 
achieves both, and I urge the Senate to pass it.
  I yield back.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. LEE. Mr. President, I ask unanimous consent to extend the 
colloquy by an additional 5 minutes so we can hear from my friend and 
colleague, the Senator from Connecticut, Mr. Blumenthal.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Connecticut.
  Mr. BLUMENTHAL. Mr. President, I thank my colleague from Utah, my 
friend and very distinguished colleague, as well as our friend from the 
State of Vermont for their leadership this morning and throughout the 
drafting and formulating of this very well-balanced compromise--a 
balance between security, which we must be able to preserve and defend, 
and our privacy and other essential constitutional rights, which we 
need to protect just as zealously, because the reason for fighting to 
preserve our security is so we maintain and preserve our great 
constitutional rights.
  That balance can be struck. It is feasible, achievable, and this 
measure of the USA FREEDOM Act is a strong step in the right direction.
  I wish to talk today about one of its great virtues, which is an 
American virtue, the virtue of due process having an effective 
adversarial process, one that is transparent and provides for effective 
appellate view. The lack of an adversarial process, as well as 
transparency and effective appellate review, is one of the reasons the 
USA FREEDOM Act is absolutely necessary.
  We know bulk collection of megadata is unnecessary. The President's 
own review group made that fact clear. We also know bulk metadata 
collection is, essentially, un-American. This country was founded by 
people who, rightly, abhorred the so-called general warrant that 
permitted the King's officials to rummage through their homes and 
documents. No general warrant in our history has swept up as much 
information about innocent Americans as orders allowing bulk 
collection.
  Last week, the Second Circuit Court of Appeals told us something 
more; that we now know bulk collection is unauthorized. It is illegal. 
It is unauthorized by statute and has been so for the last 9 years that 
the government has collected bulk data of this kind.
  The question is, How did it happen? How did we arrive at a point 
where the Government of the United States has been collecting data 
illegally for 9 years? We know that in May of 2006, the FISA Court--the 
Foreign Intelligence Surveillance Court--first was asked whether the 
Federal Government could collect the phone records of potentially every 
single American, and it said yes.
  It failed the most crucial test of any court, which is to uphold our 
liberties against any legal onslaught. It got it wrong because the 
government's argument hinged on a single word, the word ``relevance.'' 
The court ruled that relevance means all information. In other words, 
the court had to decide whether relevant information means all 
information, and it said yes.
  That judgment was just plain wrong, and it did not strike the Second 
Circuit as a difficult question. It doesn't strike us--now in 
retrospect--as a difficult question. The Second Circuit held that the 
Federal Government's interpretation is ``unprecedented and 
unwarranted.'' Never before, in the history of the Nation, has this 
kind of bizarre overreaching been successfully entertained.
  Now, the court--the Foreign Intelligence Surveillance Court--didn't 
even issue an opinion. There was no way for anyone to know that this 
bulk metadata collection had been authorized because the court never 
told anyone, never explained itself. One can hope the Court knew what 
it was thinking at the time, but we don't know what it was thinking.
  Now, I don't mean any disrespect to the FISA Court, which is composed 
of judges who have been confirmed by this body, article 3 judges who 
serve because they have been appointed by the Chief Justice of the 
United States.
  The reason the court got this issue so fundamentally wrong, I think, 
is because it heard only one side of the argument. It heard only the 
government's side. It heard only the advocates seeking to collect in 
this sweeping way that was contrary to statute and, in my view, also 
contrary to fundamental rights and principles.
  The USA FREEDOM Act corrects that systemic problem. It not only 
enables, but it requires the court to hear both sides.
  We know from our life's experience that people make better decisions 
when they hear both sides of an argument. Judges on the courts know 
they want to hear both sides of the argument before they make a 
decision. Often they will appoint someone to make the other side of the 
argument, if there isn't anyone to do so effectively. They want 
effective representation in the courtroom.
  That is why I have advocated from the very start and proposed--and 
the President affirmed--that there needs to be advocacy for our 
constitutional rights before the court. The other side of the 
government's argument needs to be represented.
  We need a FISA Court we can trust to get it right because this 
proposal for an adversarial proceeding in no way contemplates an 
abridgement of secrecy or unnecessary delay. Warrants could proceed 
without delay. They could proceed without violation of confidentiality 
and secrecy, but the systemic problem would be fixed so the FISA Court 
would hear from both sides.
  This act also is important because it would bring more transparency 
to FISA Court decisions, requiring opinions to be released, unless 
there is good reason not to do so. It would require some form of 
effective appellate review so mistakes could be corrected.
  These kinds of changes in the law are, in fact, basic due process. 
They are the rule of law throughout the United States in article 3 
courts, and these changes will make the FISA Court look like the courts 
Americans are accustomed to seeing in their everyday experience. When 
they walk into a courtroom in any town in the State of Connecticut or 
the State of Utah or the State of Montana, what they are accustomed to 
seeing is two sides arguing before a judge, and that is what the FISA 
Court would look like--rather than one side making one argument,

[[Page S2779]]

whether it is for bulk collection of metadata or any other intrusion on 
civil rights and civil liberties, there would be an advocate on the 
other side to make the case that it is overreaching, that it is 
unnecessary, that it is unauthorized. In fact, that is what the Second 
Circuit said the government was doing by this incredibly overextended 
overreach in bulk collection of metadata.
  Unless and until this essential reform is enacted, along with other 
critical reforms that are contained in the USA FREEDOM Act, I will 
oppose reauthorization of section 215, and I urge my colleagues to do 
so as well.
  I thank my colleagues from Utah and Vermont for their leadership and 
all who have joined in this morning's discussion. The colloquy today, I 
think, illustrates some important points of why the USA FREEDOM Act is 
important at this point in our Nation's history.
  I yield the floor.
  Mr. LEE. Mr. President, I appreciate the patience of Senator Hatch 
and his willingness to wait while we finished this exercise.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Utah.

                          ____________________