[Congressional Record Volume 163, Number 151 (Tuesday, September 19, 2017)]
[Senate]
[Pages S5826-S5827]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
FISA and CFIUS
Mr. CORNYN. Mr. President, as the subway attack in London last week
proves all too well, when terrorism goes underground, it doesn't
disappear. Every day there are individuals operating in the world's
shadows in places like the Parsons Green station in Fulham. They mean
to do our allies and us great harm, and they are not going away.
As President Trump said last week, in this era in which attacks like
that in London are the new normal, we have to be proactive. We can't
take our security for granted. We can't naively assume that when it
comes to threats like that and others even bigger, our country is out
of the woods. One way to be proactive and to keep our country safe is
to reauthorize section 702 of the Foreign Intelligence Surveillance
Act.
Earlier this month, Attorney General Jeff Sessions and Director of
National Intelligence Dan Coats sent a letter to congressional
leadership calling for this reauthorization. It is easy to see why.
Title VII of the Foreign Intelligence Surveillance Act allows the
intelligence community to collect vital information about international
terrorists, cyber actors, and other important foreign intelligence
targets. Information collected under one particular section--section
702--produces particularly important foreign intelligence that helps
prevent terrorist attacks and malign state actors as well. It does so
by focusing on non-U.S. persons, which is important, because, as it is
called, it is foreign intelligence surveillance. It focuses on non-U.S.
persons located outside of the United States who are foreign
intelligence targets.
But that is not all. Just as importantly, section 702 also includes a
comprehensive oversight regime to make sure the privacy of U.S. persons
is protected under the Constitution. That is done by not only oversight
here in the Senate and in the House through the intelligence committees
but also by the Foreign Intelligence Surveillance Court, which monitors
compliance with the law.
There has been some criticism of this provision, but I must say that
the overwhelming support for the section 702 reauthorization is quite
remarkable in this polarized environment in which we live. Even the
Privacy and Civil Liberties Oversight Board gave the program a ringing
endorsement.
But the criticism that has been made is actually based on very few
actual facts and often reflects a misunderstanding, both of the purpose
of FISA and the controls that constrain government action. Just to be
clear, section 702 does not allow intelligence personnel to evade the
Fourth Amendment to the U.S. Constitution. It may not be used to
intentionally target a citizen of the United States. That citizen could
be in New York or New Delhi. It simply doesn't matter. He or she is off
limits.
[[Page S5827]]
Section 702 also does not allow for bulk collection or the unlimited
dissemination of intelligence that is obtained. Rather, the
government's capabilities are specifically circumscribed.
Finally, section 702 does not ignore the possibility that
intelligence personnel will inadvertently obtain information about U.S.
persons, but that statute requires intricate procedures to minimize
this type of incidental collection to make sure that American citizens
are not swept up in foreign intelligence surveillance targets.
Because of these safeguards, section 702 achieves a careful balance,
preserving privacy and civil liberties while giving our intelligence
personnel the flashlights they need to find terrorists and other
adversaries operating in the dark.
This careful balance is why scholars at the U.S. Naval Academy,
commenting on section 702, summarized that ``there is simply no good
case for not reauthorizing when it comes up for renewal.''
I say to my colleagues that the time for renewal is fast approaching.
That is why today I join the Attorney General and the Director of
National Intelligence in recommending the speedy enactment of
legislation reauthorizing title VII before it sunsets later this year.
Section 702 is only one piece of our dense security puzzle. It
complements many other pieces of legislation that were designed to
handle our incredibly diverse array of threats, and I just want to
mention one other.
We need to strengthen the Committee on Foreign Investment in the
United States, also known as CFIUS. Yesterday we passed the National
Defense Authorization Act which contains an important CFIUS provision.
I would like to thank the senior Senator from Arizona, the chairman of
the Armed Services Committee, as well as the ranking member, the senior
Senator from Rhode Island, for including it in the National Defense
Authorization Act, which we approved yesterday.
This provision is critically important, as it could help strengthen
the process by which we screen investment by foreign companies to
ensure that our military superiority and our technological edge is not
whittled away by foreign governments that might use our technology
against us or to undermine our industrial base here in the United
States.
As my colleagues know, many national security threats don't make the
headlines. Some of them emerge gradually. They develop quietly when
countries like China begin acquiring American technology in every way
possible, knowledgeable of our laws, and with a conscious strategy to
try to evade and circumvent those protections in order to grab our
technological edge and undermine our industrial base.
It has been reported that the Chinese Government has already made
investments in robotics and artificial intelligence, pouring some $30
billion into early-stage U.S. technologies over a 6-year period.
When the Chinese are able to get their hands on our cutting-edge
technology, just imagine the boost for their long-term military
capabilities.
But here is the problem. CFIUS needs to be modernized and brought up
to date in order to plug these holes that currently exist in the
protective regime. Secretary Mattis, the Secretary of Defense, said
that CFIUS ``needs to be updated to deal with today's situation.'' I
agree.
My provision included in the NDAA would begin that process. It
requires the Secretary to find and propose ways to make the current
CFIUS process work more effectively. The NDAA also sets the stage for
more comprehensive reform that I will be discussing in the coming days
and weeks.
I want to thank the senior Senator from Idaho, the chairman of the
Banking Committee, for taking this important issue up in the Senate
Banking Committee just this last Thursday. As chairman, his leadership
on the committee has been indispensable, and CFIUS reform is just the
latest example.
The bipartisan legislation I am spearheading is called the Foreign
Investment Risk Review Modernization Act. It will modernize the CFIUS
process to prepare our country to meet the 21st century threats, and I
plan to introduce it soon.
This bill would ensure, first, that the government scrutinizes
closely those nations that are the biggest threats to our national
security; second, that CFIUS obtains more authority to look at
investment deals that, as of today, don't fall under its purview, just
as certain joint ventures based overseas and minority-position
investments in companies do not currently fall within its purview; and,
third, it would give CFIUS the means to assess rapidly developing
technologies our export control regime has not yet figured out how to
handle.
Colleagues, I hope you will join me in supporting this important
reform package, and I look forward to further debate on this topic.
I yield the floor.