[Congressional Record Volume 162, Number 103 (Monday, June 27, 2016)]
[Senate]
[Pages S4587-S4588]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                    INTELLIGENCE AUTHORIZATION BILL

  Mr. WYDEN. Mr. President, I want to take a few minutes tonight to 
discuss the Intelligence authorization bill for fiscal year 2017. The 
Senate has been asked to provide unanimous consent to move forward on 
this legislation, and I have objected to doing that and want to take 
just a few minutes to outline why I feel very strongly about this.
  The reality is, this legislation contains a number of valuable 
provisions, but once again it is being driven by the same issues the 
Senate looked at last week, and that was the McCain amendment, which 
involved a major change with respect to national security letters. My 
colleague is a valuable member of the Intelligence Committee and knows 
what I am talking about.
  But to set the backdrop is again, I want it understood how important 
it is to make clear that it is a very dangerous time. Those of us who 
sit on the Intelligence Committee are acutely aware of that. A couple 
of times a week we go into that special room and come away with a very 
clear recognition that there are people out there who do not wish our 
country well. So that is not in question. This is a dangerous time. 
Given these dangers, it is especially important--critically important--
that law enforcement and intelligence authorities have the tools they 
need to protect the American people.

  Tonight, I wish to start with where we really left off with the 
amendment from the Senator from Arizona, the McCain amendment involving 
national security letters, because that amendment deals with the very 
same concern that has led me to object to the Intelligence 
authorization bill tonight.
  I don't take a back seat to anybody--not anybody--in terms of making 
sure our intelligence and law enforcement officials have the tools they 
need to protect our country at a dangerous time. That is why in 2013, I 
began working for it then, and we got it into the USA FREEDOM Act. I 
wrote the provision that became section 102 of the USA FREEDOM Act. It 
said that when our government--the FBI or our intelligence and law 
enforcement community--believed it has to move quickly and it has to 
move immediately, our government could do that. It could go get the 
information that has been in question--the email materials, the text 
message logs, the chat records, and all of these digital 
communications. Under section 102, the government could move 
immediately to get this information and then come back after the fact 
and settle up with the court. Never once has the court denied the 
government.
  I recall that during the debate over the McCain amendment, the 
distinguished chairman of the Intelligence Committee said that he was 
concerned that the FBI might have to wait around for a month--no way, 
absolutely no way, out of the question. Under section 102, there is not 
going to be any dawdling. There is not going to be waiting around. The 
government can move and move immediately to protect the American 
people.
  Given that the government has those tools for the FBI and 
intelligence officials--making sure that we have the tools needed to 
protect the security and well-being of the American people--that is a 
reason for being very careful about thinking through big changes in 
these national security letters and what the changes would be, 
specifically. This was in the McCain amendment. It is in the 
Intelligence authorization bill. An FBI field office could issue a 
national security letter, in effect, administratively. It is an 
administrative subpoena without any court oversight. For example, the 
national security letters could be used to collect what are called 
electronic communication transaction records. This would be email, chat 
records, and text message logs.
  I have had Senators come up to me to ask me about whether this could 
be true. When I was responding to questions at home about that this 
weekend, folks or people asked: Does this really mean that the 
government can get the Internet browsing history of an individual 
without a warrant, even when the government has the emergency authority 
if it is really necessary?
  The answer to that question is: Yes, the government can. The 
government can get access to Web browsing history under the 
Intelligence authorization legislation, under the McCain amendment, and 
they can do it without getting a warrant--even when the government can 
go get it without a warrant when there is an emergency circumstance.
  The reality is Web browsing history can reveal an awful lot of 
information about Americans. I know of little information that could be 
more intimate than that Web browsing history. If you know that a person 
is visiting the Web site of a mental health professional or a substance 
abuse support group or a particular political organization or a 
particular dating site, you know a tremendous amount of private, 
personal, and intimate information about that individual. That is what 
you get when you can get access to their Web browsing history without a 
warrant, even, as I have said, when the government's interest is 
protected in an emergency.
  The reality is that getting access to somebody's Web browsing history 
is almost like spying on their thoughts. This level of surveillance 
absolutely ought to come with court oversight. As I have spelled out 
tonight, that is possible in two separate ways. There is the 
traditional approach with getting a warrant. Then under section 102, 
which I wrote as part of the USA FREEDOM Act, the government can get 
information when there is an emergency and come back later after the 
fact and settle.
  The reality is the President's surveillance review group has said 
that they believe court oversight should be required for this kind of 
information.
  In effect, now we have some law enforcement and intelligence 
officials saying that we ought to go in exactly the opposite direction. 
By the way, George W. Bush agreed that we ought to be careful about 
gathering this information. He didn't want this particular power.
  Maybe somebody could argue that, well, intelligence and law 
enforcement officials ought to be able to do this because it is more 
convenient for them. To tell you the truth, if we were talking about 
convenience or protecting the American people in an emergency, I would 
be pretty sympathetic to the government's argument. But that is not the 
choice. As to the government's interest, given the safety of the 
American people being on the line, the government goes to get that 
information immediately--the Web browsing history, the chat records, 
and the email. The government gets it immediately under the specific 
language of section 102.
  What this really comes down to is that we have had this horrible 
tragedy in Orlando. So we are all very concerned about the safety and 
the well-being of the American people. When we are home, there is no 
question--as I am sure it is in the case of the Presiding Officer of 
the Senate, my colleague from Ohio, and myself--that the American 
people want policies that protect their security and their liberty. 
They want policies that do both. Frankly, they don't think they are 
mutually exclusive. They think the government ought to be doing both.

  After a tragedy--and you can almost set your clock by it--
increasingly, proposals are being brought up that really don't do much 
of either. They don't do much to advance security. In this case, you 
protect people's security with that emergency authority when the well-
being of our people is on the line and the public wants their liberties 
protected. They are certainly going to be very concerned about someone 
being able to see their Web browsing history with an administrative 
subpoena and no court oversight.

[[Page S4588]]

  I am going to touch on one other section of the Intelligence 
authorization bill that concerns me, but I will say that I supported 
that emergency authority very strongly. I was the first to propose it 
in 2013. I did so because I said I wanted to make sure--since I am one 
of the longer serving members of the Intelligence Committee, and I am 
very pleased to have the Presiding Officer of the Senate on it--and I 
wanted to be able to say that my focus has been to show that security 
and liberty are not mutually exclusive. We can do both. I think, with 
what we have outlined this afternoon, we can, in fact, do both. That is 
why section 102 of the USA Freedom Act is so important. It spells out 
how and when the well-being and safety of the American people is on the 
line. There isn't anybody going to be dawdling around. What the 
distinguished chairman of the Intelligence Committee said about people 
waiting for a month to get a national security letter is not going to 
happen--not if you use section 102. We are making it clear how 
important security is. But we are also saying that we are not going to 
needlessly erode these sacred and vital constitutional protections of 
the American people, which is what you would be doing if a field office 
of the FBI, administratively and without court oversight, could go out 
and scoop up scores of browsing records.
  That is why I have objected to giving unanimous consent to the 
intelligence authorization bill. We always do it publicly. That is why 
I am on the floor tonight.
  I will tell my colleagues that this bill, on the key issue of 
national security letters, is essentially a redo of the vote that took 
place last week on the McCain legislation.
  I close by saying that while the Intelligence authorization bill does 
contain other provisions that I think are quite constructive, I am 
troubled that the bill also would erode the jurisdiction of the 
independent privacy board for the second year in a row. Here, in 
particular, is where we all want to concentrate on U.S. persons. That 
is what is so important--focusing on U.S. persons. At a time when 
telecommunications systems around the world are beginning to merge--and 
this will increasingly be the case in the digital domain--the 
individual's U.S. or non-U.S. status is not always readily apparent. So 
I am concerned about some of the restrictions that are in the 
authorization, as well that I think they really ignore the way in which 
telecommunications systems have changed around the world and the 
difficulty in recognizing quickly an individual's U.S. or non-U.S. 
status.
  With that, I note our friend and colleague is on the floor to give 
his remarks.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Ohio.
  Mr. BROWN. Mr. President, I appreciate the always good insight from 
the senior Senator from Oregon, my colleague on the Finance Committee. 
I say thank you to Senator Wyden.

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