[Congressional Record Volume 161, Number 87 (Tuesday, June 2, 2015)]
[Senate]
[Pages S3447-S3448]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                            USA FREEDOM ACT

  Mr. TOOMEY. Madam President, I rise today to speak on H.R. 2048, the 
USA FREEDOM Act. I want to put it in some context and discuss why I 
voted the way I did today, but first, a little background.
  It has been now more than a decade since Al Qaeda launched its deadly 
attacks on U.S. soil that we all remember so well, killing 2,977 people 
in New York City, in Washington, DC, and just outside of Shanksville, 
PA, injuring about 2,700 more, and taking away far too many parents, 
children, wives, husbands, families, and friends.
  As we gather here today, we face other grave threats as well. One of 
the most grave threats is the threat of the Islamic State of ISIS. 
Secretary of Defense Hagel described it this way. He said ISIS is 
``beyond anything that we've seen'' and constitutes an ``imminent 
threat to every interest we have.''
  We know this is a brutal group. They behead people. They crucify 
people. They burn people alive. They systematically sell young girls 
into slavery. They control large regions in the Middle East now. They 
have their sights set on attacking the United States.
  We know there are radicalized ISIS sympathizers and adherents here in 
the United States. Many of them are eager to carry out this group's 
destructive ambitions right here in our own country.
  We know ISIS has the resources to carry out attacks on our homeland. 
Al Qaeda spent about half a million dollars. That is what it cost them 
to plan and execute the entire attack on the World Trade Center and the 
Pentagon. ISIS has amassed a $2 billion fortune--4,000 times as much 
money as Al Qaeda spent on September 11. ISIS collects something on the 
order of an additional $1 million to $2 million every day through the 
variety of means it has because of the land it controls. So this is a 
very serious threat.
  Like any other threat, we have an obligation to protect the American 
people from this to the extent we can. In the process, we have an 
obligation to strike an appropriate balance between the national 
security we owe our constituents, the American people, and the robust 
civil liberties we ought to protect because they are enshrined in our 
Constitution and important to our country. In my view, section 215--the 
controversial part of the USA PATRIOT Act--appropriately struck that 
balance.
  The best policy we could have pursued this week would have been to 
reauthorize section 215 in pretty much the form it has been in. If we 
had done so, we would have been repeating what we had done many times 
before by overwhelming bipartisan majorities I think seven previous 
times. In 2005, 2006, 2009, 2010, and 2011, Congress reauthorized the 
USA PATRIOT Act, including section 215. Congress did that because there 
is nothing radical about section 215 or the PATRIOT Act. This--what 
became a very controversial section recently--simply gave our national 
security officials the same kind of ability to access documents, 
reports, and other tangible items when investigating a potential 
international terrorist attack that a grand jury has and has long had 
when investigating ordinary criminal events such as a car theft.
  It is important to note what section 215 did not authorize. It did 
not authorize the NSA to conduct wiretaps or listen in on any phone 
conversations. That has never happened. Despite that, there has been 
rampant misinformation about the telephone metadata program, as it is 
referred to, that was conducted under section 215, so I want to discuss 
that a little bit.
  I think one of the most important things to stress here is that this 
metadata program contained only information a third party had. It was 
not private information that an individual possessed; it was third-
party information held by a telephone company. What is that information 
the phone companies have always had? It is a phone number. It is a date 
and time of a call. It is the duration of a call. It is the number 
being called. That is it. That is the sum total of all of the 
information in this so-called metadata program. Because that is all the 
information, it was completely anonymous. Not only did it not include 
any context of any conversation--that was not possible. Conversations 
have never been recorded, so the contents have never been captured. But 
it also did not contain any identifying information with the phone 
numbers. There are no names, no addresses, no financial information. 
There is no information that would in any way identify anybody with any 
particular number.
  So what did the government do with the metadata it had received? 
Well, it stored it all in a big database, on a big spreadsheet with all 
of those numbers. That is all it was, was a lot of numbers.
  When the government discovered a phone number from a known terrorist, 
when a group of special ops American forces took down a terrorist group 
somewhere and grabbed a cell phone, then the government could conduct a 
search of the metadata, but first a Federal judge would have to give 
permission.
  After running the search to determine whether in that metadata there 
had been phone calls between the known terrorists and numbers in that 
database, even after doing the search, the government still had no 
information identifying the phone number because that is not in the 
database. Of course, as I said before, certainly there was no content 
because content had never been recorded.
  But a link might be established--and if it were to be established, if 
Federal investigators discovered that the known terrorist was in 
regular phone communications, for instance, with someone in the United 
States, then that fact could be turned over to the FBI, and the FBI 
could conduct an investigation, which might be a very useful 
investigation to have.
  Well, we have had a number of officials who have told us how 
important this program has been, the intelligence value we have 
received. President Obama, himself, explained that had the section 215 
metadata program been in place prior to 9/11, the government might have 
been able to prevent the attack. Remember, we learned afterward about 
our inability to connect the dots. This was a program that was designed 
to enable us to connect those dots.
  Even the critics of this program--which, as we know, there are many--
have never suggested this program was in any way abused, that any 
individual person had their rights violated, that there was any breach. 
That case has never been made, not that I have heard. Given the value 
of the program--as we have heard from multiple sources--and the 
complete absence of any record of any abuse of the program, in my view, 
Congress should have reauthorized this program, including section 215.
  But, instead, we have passed an alternative, and that is the USA 
FREEDOM Act. I voted against this measure today because I am concerned 
the USA FREEDOM Act does not provide us with the tools we need at a 
time when the risks have been as great as ever. Let me just mention 
some of these.
  First, under the USA FREEDOM Act, it is entirely possible that the 
government may not be able to continue any metadata program at all. I 
say that because the bill explicitly forbids the government from 
maintaining the database that we have been maintaining and instead the 
bill assumes that private phone companies will retain the data, and 
then the government will be able to access that data as needed.
  But there is a problem with this assumption. The problem is the bill 
doesn't require the phone companies to preserve any of this data. Under 
the USA FREEDOM Act, the phone companies could destroy the metadata 
instantaneously after a phone call occurs.
  They have a regulatory obligation to keep billing information, but a 
lot of bills are unlimited calls with a single monthly charge. They 
have no statutory or regulatory requirement to retain the records of 
these calls. As currently practiced, I am not aware of any phone 
companies that retain this data for the 5 years our intelligence 
officials believe is the necessary timeframe to provide the security 
they would like to provide.

[[Page S3448]]

  There is another problem, it seems to me, with the USA FREEDOM Act; 
that is, it is entirely possible the time period contemplated for 
establishing the software that will enable the government to query the 
many different private phone company databases--that timeframe will not 
be long enough. We don't know whether it is going to be long enough. We 
will just find out, I suppose, when the time comes. But this is a 
complex exercise that has to be carried out in real time, and the USA 
FREEDOM Act simply creates a deadline. It doesn't ensure that we will 
have this in place.
  A second concern I have is that the USA FREEDOM Act weakens other 
intelligence-gathering tools that are unrelated to any of the metadata 
programs which have received most of the attention.
  So the USA FREEDOM Act gives intelligence officials----
  The PRESIDING OFFICER. The Senator from Pennsylvania has used 10 
minutes.
  There is an order to recognize the Senator from South Dakota.
  Mr. TOOMEY. Madam President, I ask unanimous consent for 30 seconds 
to wrap up.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. TOOMEY. Madam President, I conclude by saying that we are at 
least at as great a risk as we have ever been, and the first priority 
of the Federal Government of the United States is to protect people of 
the United States.
  I am deeply concerned that the USA FREEDOM Act diminishes an 
important tool for providing for this security, and I hope that in the 
coming months we can address this bill and try to correct the many 
flaws it has.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from South Dakota.

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