[Congressional Record Volume 169, Number 205 (Wednesday, December 13, 2023)]
[Senate]
[Pages S5946-S5956]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          LEGISLATIVE SESSION

                                 ______
                                 

  NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2024--CONFERENCE 
                           REPORT--Continued

  The PRESIDING OFFICER. The Senate will now resume legislative 
session.
  Mr. MANCHIN. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. MERKLEY. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER (Ms. Butler). Without objection, it is so 
ordered.
  The Senator from Oregon.


                         TSA Facial Recognition

  Mr. MERKLEY. Madam President, a question: Do we want a government 
surveillance state in the United States of America?
  Movies like ``Gattaca,'' where citizens are tracked through their 
DNA, or ``Minority Report,'' where citizens are tracked through their 
retina scan, warn us what can happen under a fictional government 
surveillance state. But we don't need to depend upon movies and fiction 
to understand what a surveillance state means because we have, right 
now, a real-life government surveillance state in China. China's 
government surveillance state already tracks more than 1 million Uighur 
citizens through facial recognition.
  As cochair of the Congressional-Executive Commission on China, I have 
had a front-row seat on how China uses facial recognition technology to 
track and to enslave a million people. And I have watched with some 
alarm as the U.S. Government has begun to expand its own use of facial 
recognition technology tied to databases, especially because there has 
never been a debate, let alone a vote, here in the U.S. Senate about 
whether or not we want to have a national facial recognition system 
controlled by the government. We have never had a debate related to the 
risks that that involves in terms of its potential threat to our 
freedom and to our privacy.
  So I want to force there to be such a debate. I want to force there 
to be a vote. A government with power to track us everywhere we go is a 
real threat to privacy, a real threat to freedom. That is why Senator 
John Kennedy and I have introduced the bipartisan Traveler Privacy 
Protection Act to curtail the use of facial recognition technology by 
TSA.
  Step-by-step, slowly, steadily, TSA is expanding its system of facial 
recognition technology. And let's just take a look at what that looks 
like. In 2018, TSA began with a 3-week test of facial recognition where 
passenger photos and data were deleted immediately. Then, in 2019, they 
did a second test, but they allowed the photos and data to be stored 
for up to 6 months. By 2020, we are talking about the ability by the 
TSA to hold photos and data for up to 2 years. In 2021, we are now 
talking about TSA beginning to match facial recognition photos against 
the Customs and Border Protection database--all of these steps taking 
place really with no recognition by Americans that this program is 
expanding in this fashion, certainly no discussion here in the Senate 
committees and Senate floor about this steady expansion. Ultimately, 
what the TSA is aiming at is a world in which your face is your 
driver's license; your face is your passport. Well, that means a 
massive database and massive tracking of Americans wherever they go.
  This summer, the TSA announced plans to expand from the current 25 
airports where facial recognition technology is used to 430 airports 
across the country. So no matter where you live, this system of 
tracking citizens is coming to your community.
  In fact, as you see the geographic expansion, we are also seeing that 
technological expansion. TSA Administrator David Pekoske said in April 
of this year, a few months ago, at the South by Southwest Conference:

       Eventually we will get to the point [where] we will require 
     biometrics across the board.

  What he is really saying here is, right now, we are allowing some 
opt-out from the use of facial photos at the airport--and I will have 
more to say about that in a moment. It is very difficult to exercise 
that opt-out, but in the near future, the opt-out is going to go away. 
Everyone will have to be scanned everywhere you go in the TSA system.
  Requiring facial recognition should set off alarm bells for everyone.
  Once you have built the infrastructure of the database and the 
cameras, then it is easy and tempting for the government to use that 
infrastructure to track you in the name of security. I am reminded of 
Benjamin Franklin's warning that ``those who would give up essential 
Liberty to purchase temporary Safety, deserve neither Liberty nor 
Safety.''
  I know there will always be a story about some bad guy hiding out in 
some town somewhere who gets caught on a camera and might not have 
gotten caught otherwise, but allowing the government to know where you 
are at all times is an enormous price to pay. It is a price paid in the 
loss of privacy and the loss of freedom. And that is why it needs to be 
debated, and that is why we need to put a brake on this system until we 
consciously lay out what we consider acceptable for the use of such 
technologies. We really don't know how a future government will use or 
misuse this technology, but we do know how it is misused in nations 
like China.
  You know, passengers, as you go to the airport, are confronting a 
long line in which they see a lot of signs that I will show you in a 
moment. But what they don't understand is when they get to the front of 
the line, the TSA is going to go like this, directing you to stand in 
front of the camera. Many of us in this Chamber have experienced that 
because when you travel through Reagan National, that is exactly what 
happens every day, every week.
  I was pretty surprised to see that show up with no signage saying 
that this was an opt-in program, which is the way the TSA had 
originally described it. But they changed it to an opt-out program, 
again, without clear debate or laws here in our Chamber being discussed 
or being passed.
  As you stand in the line--these are pictures I have taken in previous 
trips through Reagan National. The things they want you to know have 
these big signs like this: ``You are entering an

[[Page S5947]]

area where all persons and property are subject to additional 
screening.'' OK. Good to know. You might trigger an alarm or have 
additional screening or, hey, you got any questions or comments? Here 
is how you reach us for live customer service assistance--or firearms, 
including shotgun chokes, are not allowed through security checkpoints. 
All firearms must be declared.

  That is fine. These are things that they want you to know. There are 
actually seven different signs at Reagan National as you stand in line, 
but there is no sign saying that when you get to the TSA checkout 
point, you have an option to check out--to opt out of the program--no 
clear signs like this.
  So I brought the head of TSA in and had a conversation about the fact 
that they are not informing citizens, and as a result of that, there is 
now some information--some information but not adequate information.
  Now, here is a chart or a picture that I took. As you are directed 
here to the checkout, and you can see the driver's license--the sign is 
set sideways so nobody can read it until the moment that you are 
stepping up to the carousel. By then, you are all focused on doing what 
the guard is telling you to do, what the TSA agent is telling you to 
do.
  I found this a little humorous that they put out these signs--after I 
gave them a hard time--but they placed them deliberately so people 
couldn't see them.
  Let's take a look at what that old sign says: ``Self-service 
biometric identity verification technology paving the path for a safe 
and secure travel experience.''
  Well, these type of signs are very different than the signs I just 
showed you. They are very detailed, and this is only when you actually 
reach the kiosk. Nobody has the chance to read this entire thing and 
realize what it is about. It doesn't say ``facial recognition'' at the 
top. It doesn't say: ``Remember, you have two options here'' in nice 
big print.
  You have embedded in this--there are some details. Right down here it 
says ``Photo capture is optional,'' but you have to read through this 
and understand what it is talking about. Meanwhile, TSA is saying: Get 
in front of the camera. So that is really not a sufficient way of 
educating citizens and having a true opt-out or an opt-in program.
  Now they have got a new sign. Now, this one also doesn't say ``facial 
recognition.'' And if you look down here to see what is highlighted: 
``Use your physical ID. Use your eligible digital ID.''
  These are not about opting out. No, they are about how to actually 
use facial ID. But there is a little tag down here at the bottom: ``If 
you decide to opt out of facial matching, notify the officer.'' Well, 
nobody, in the 2 seconds or 3 seconds you have as they motion you to 
step forward, where you can actually see this sign, is going to read 
this whole document and go: Oh, what is this all about--hidden at the 
bottom?
  I mean, it is completely clear the TSA has no intention of actually 
having an opt-in program, and they have no intention of truly having an 
opt-out program because they are hiding all the information about the 
fact that you have that right.
  Now, because of my complaints to the TSA--because of my advocacy--I 
said: You know, you need to have signs on the way in that alert people, 
and then you need to have a sign by the camera. Well, they didn't do 
any signs on the way in, but they did do a little sign right by the 
camera at the last second. It says: ``You may opt out of facial ID 
validation,'' and in smaller print, ``Please inform the TSA officer if 
you do not want the camera used. See additional information on the blue 
signs nearby.'' So they refer you over to read a more complex document.
  Again, none of this makes sense if you want to give people real 
information because this is the last second as the officer is pointing 
to you to step in front of the camera.
  The sign looks pretty large in this chart, but it is actually a 
little kind of 5 by 8 sign, again, to my point.
  This sign also says: ``Your photo and limited biographic information 
will be deleted after your transaction.'' Well, if you hear that--
``Your photo and limited biographic information will be deleted after 
your transaction''--it sounds like it will be deleted, like, 
immediately.
  But what is TSA's real policy? That they can retain your data for 2 
years. That is a big difference between a sign that implies that it is 
deleted immediately and the fact that they are going to keep your data 
in a database for up to 2 years.
  It is outrageous that TSA continues to shuttle people through its 
facial recognition system and not tell people, clearly, it is optional 
and not tell people they are holding onto their biometric data. Worse, 
the agents are not at all clear about the rules of opting out, because 
I have repeatedly opted out and have tried to opt out.
  And so I have the experiences to share with you. Here is what 
happens:
  You get 4 or 5 feet out, waiting for the next person to leave, 
because there is a line that says: Don't go there. Then they mushroom 
you forward. The TSA immediately points to the camera, and on the far 
side of the camera is where you have to put your driver's license in, 
forcing you to step in front of the camera.
  So you say: I am choosing to opt out, Officer.
  And they say: Get in front of the camera--because they are not really 
familiar with what that means because nobody is informed; so nobody is 
doing it.
  Then you say: No. There is an option to opt out, and I am choosing to 
opt out.
  Then you have to explain it to the TSA agent: So I am giving you my 
driver's license, and I will even put it into that machine, but I am 
not stepping in front of the camera, which means you have to reach 
under the machine like this and, like, slide it in there. Then you have 
got to take it out, bring it back, hand it to the officer. They look at 
the photo on the screen that has been taken of your driver's license. 
They compare it to your face--all very good. Or they say: You stand 
over there.
  So twice, of the several times I have attempted to opt out, I have 
been directed to stand over there, in a rather hostile fashion, while 
they have gone and found somebody to address the fact that this 
passenger is refusing to do what they say and step in front of the 
camera. Eventually, it gets resolved, but the first time, it included: 
And you, sir, are going to hold everyone up at this airport.
  Well, thank you very much. It is supposed to be possible just to opt 
out and hand you my driver's license.
  Stand over there, sir. No, don't move--all of which I would be happy 
to share with you on a recording because it is legal to take photos 
when you are in line at the TSA.
  This is not OK. The massive expansion of state surveillance, which 
will create a national surveillance system here in America, with the 
potential for great abuse by the government, has to be debated here, 
has to be addressed here in the Senate Chamber. We need to put a halt 
on this expansion of this technology, and we need to do it soon.
  Let me be clear: The legislation that Senator John Kennedy and I are 
proposing would not affect Customs and Border Protection. So don't tell 
me that some terrorists who will come into the country would have been 
caught because of facial recognition technology but for our not having 
it. What I am really talking about is creating a surveillance state--or 
stopping a surveillance state--inside the United States of America, not 
at the borders. What the legislation would do is guarantee that you 
could move about freely without being tracked everywhere by the 
government.
  Let me also note that the TSA has been refusing to share their error 
rate from their initial studies. In many facial recognition systems, 
there is a lot higher error rate for people with brown or black skin, 
but they won't share that data.
  They just say: Oh, it is accurate.
  They say: It only has a 3-percent error rate.
  Well, I would sure like to see the breakdown on that. A 3-percent 
error rate means they have 68,000 people a day who are erroneously 
addressed through this computer system.
  Then they try to say: Well, this will be a more efficient system. It 
will be faster.
  They still have to have the agent right there. I have watched it go 
faster

[[Page S5948]]

for individuals--TSA agents--who are both grabbing the driver's license 
and then comparing it to the face than it does in the photo system.
  So they will make arguments, but I think we need to thoroughly 
examine those arguments. They will make arguments about a slight 
increase in security, and they will make arguments about a slight 
increase in efficiency--but at what cost to our privacy? At what cost 
to our freedom? Are those arguments actually even valid? They won't 
release the data.
  I don't want America to be a surveillance state. I don't want it to 
be like the surveillance state with DNA portrayed in ``Gattaca.'' I 
don't want it to be like the surveillance state displayed with irises 
in the ``Minority Report'' movie. I don't want it to become an American 
surveillance state like China, using facial recognition. In China, that 
facial recognition is used to track and control their citizens, 
including the enslavement of more than a million ethnic Uighurs. I 
don't want America to become a surveillance state because we ignore the 
issue and let it just gradually expand, never debating it and never 
voting on it.
  So I urge my colleagues--and Senator Kennedy and I will be 
encouraging folks--to join us on this bill, the Traveler Privacy 
Protection Act. Let's say no to this steady expansion without a debate 
and without a vote--the steady expansion of the American Government 
surveillance state.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The senior assistant legislative clerk proceeded to call the roll.
  Mr. DURBIN. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


             Unanimous Consent Request--Executive Calendar

  Mr. DURBIN. Madam President, I come to the floor again to discuss two 
U.S. attorney nominations that have been on the calendar for weeks: 
Rebecca Lutzko, nominated to be U.S. attorney for the Northern District 
of Ohio, and April Perry, nominated to serve as U.S. attorney for the 
Northern District of Illinois.
  On several previous occasions, I have had to come to the floor to 
request unanimous consent for the Senate to take up these 
noncontroversial, bipartisan nominations and confirm these law 
enforcement nominees. Each time I have come to the floor, asking for 
this, the junior Senator from Ohio has objected. He says that he ran 
for office to ``[f]ight the criminals--not the cops.'' It turns out to 
be a hollow promise when he is holding up criminal prosecutors, at a 
professional level, in two major parts of the United States--one of 
them in his own State.

  Our communities desperately need top Federal prosecutors in place. 
Interested in stopping fentanyl? I am. Thousands of people are dying. 
Well, who is going to prosecute those cases? The U.S. attorneys will--
93 of them across the United States--but you can't prosecute the case 
if you don't have the U.S. attorney there to lead the effort and to 
coordinate the effort with other branches of government. You can have 
an interim in there, and I am sure that person will do as good a job as 
he can, but it isn't like having the permanent person that you need as 
a U.S. attorney. Here we have two who have been chosen by the junior 
Senator from Ohio to stop--one from his own State.
  U.S. attorneys lead the Nation's efforts to prosecute violent 
criminals and protect our communities from violence, terrorism, and 
more. The U.S. attorney for the Northern District of Ohio is no 
exception. While the entire Nation has been impacted by the opioid 
epidemic, Ohio has been hit harder than almost any other State. Over 
the course of 1 year--from April 2022 to April 2023--more than 5,000 
Ohioans lost their lives to drug overdoses. That number is shocking--
5,000 in 1 year. On average, every day, 14 Ohio families lose a loved 
one to drugs.
  The U.S. attorney for the Northern District of Ohio could, as we 
speak, be tackling this drug crisis with community stakeholders, like 
the Toledo Metro Drug Task Force. Instead, her nomination has been 
languishing on the calendar here in the Senate for months because one 
Senator, the junior Senator from Ohio, has promised, I guess, former 
President Donald Trump that he would do his best to get even with the 
Department of Justice for even considering holding Donald Trump 
responsible for his conduct. It would be laughable if it weren't so 
damned dangerous.
  Because Senator Vance is not just harming my State and is not just 
harming his own State, the precedent he is setting will undermine 
public safety across the entire Nation for years to come.
  As I have stated before, the Senate has a long history of confirming 
U.S. attorneys by unanimous consent. We don't even have rollcall votes. 
When it came time for the Trump U.S. attorneys, no votes were required. 
Democrats--in control for most of that period of time--said to the 
President and his administration: You pick the U.S. attorneys. That is 
your right as President. The junior Senator from Ohio does not agree 
with that.
  Before President Biden took office, the last time the Senate required 
a rollcall vote on a U.S. attorney was in 1975. At the beginning of a 
new Presidential administration, it is customary for all the U.S. 
attorneys to resign en masse and for the new President to select their 
replacements. That is the ordinary course of business. As we have 
learned in the Senate, you can change that if you want to and run the 
risk of not bringing someone new to the position if it is that 
important. That is why, during the Trump administration, 85 of 
President Trump's U.S. attorney nominees moved through the Judiciary 
Committee.
  Senate Democrats--Democrats--allowed Trump's nominees--every single 
one of them--to be confirmed by unanimous consent, many of whom we 
would not have chosen personally, but that was the tradition that we 
held to. It would not have been realistic to force a floor time debate 
on every single one of those nominees and still expect 85 U.S. 
attorneys to be confirmed and be on the job in a timely manner.
  That tradition and the logic behind it obviously escapes the junior 
Senator from Ohio. So we respected our colleagues, and we respected the 
need for Senate-confirmed leadership in U.S. Attorney's Offices. The 
Democrats put public safety and the needs of law enforcement ahead of 
the obvious politics of the day. But now the Senator from Ohio is 
setting an unfortunate standard as he is putting us on a path of 
requiring cloture and confirmation votes for every U.S. attorney 
nominee--something everyone here knows is not feasible.
  Does this sound reminiscent of another Republican strategy from 
another Republican Senator in the State of Alabama? He held up, I 
believe, 400 military promotions for months at a time. He was angry 
about a new policy in the Department of Defense after the Dobbs 
decision. To protest that, he literally put a brick on 400 nominees for 
promotion in the U.S. military. Finally--finally--2 weeks ago, he 
relented. We still have 11 to take care of.
  To think of the hardship caused to those individuals and the fact 
that we didn't have leadership when we should have had for our national 
security is an indication to me of how this strategy of ``just stop the 
train; I want the world to get off'' is not a sensible one.
  So what will happen in the future when, inevitably, dozens of U.S. 
attorneys are left to function without Senate-confirmed leadership? 
Public safety will suffer, and we are setting a terrible precedent. To 
get angry with the administration and to try to require a rollcall 
vote--at least one, maybe two--on each nominee is just unnecessary; it 
is not logical, and it doesn't follow the precedent of the Senate--all 
because one Senator has decided that, because Donald Trump is facing 
indictments and prosecution in various parts of the United States, he 
wants to protest by hurting the selection of U.S. attorneys in his own 
home State of Ohio and the State of Illinois.
  We have before us two highly qualified nominees to lead their 
respective U.S. Attorney's Offices. Until we confirm them, law 
enforcement agencies in both Illinois and Ohio will be held back from 
doing their best to fight crime and to end our drug crisis in this 
country.
  When the Senator from Ohio was asked why he was doing this and what 
his goal was, he was very explicit:


[[Page S5949]]


  

       I will hold all DOJ nominations. . . . We will grind [the 
     Justice Department] to a halt.

  June 13, this year.
  I can tell you, we just had a hearing--as you know, as a member of 
the committee--with the Director of the FBI. He talked to us about the 
battles he is fighting, the terrorism threats across America since the 
October 7 attack in Israel. He sees blinking lights, he says, in every 
direction of danger to the United States.
  Are we going to have the Department of Justice on the job, with 
professionals doing the best they can, or are we going to let it grind 
to a halt? ``Grind to a halt''--those were his words. I hope we have 
some common sense in this situation, and I hope we do it right now.
  Madam President, I ask unanimous consent that at a time to be 
determined by the majority leader, in consultation with the Republican 
leader, the Senate proceed to executive session to consider the 
following nominations: Calendar Nos. 314 and 315; that there be 2 
minutes for debate equally divided in the usual form on each 
nomination; that upon the use or yielding back of time, the Senate 
proceed to vote without intervening action or debate on the nominations 
in the order listed; that the motions to reconsider be considered made 
and laid upon the table with no intervening action or debate; that no 
further motions be in order; and that the President be immediately 
notified of the Senate's action and the Senate then resume legislative 
session.
  The PRESIDING OFFICER. Is there objection?
  The Senator from Ohio.
  Mr. VANCE. Madam President, reserving the right to object and with 
respect to my colleague from Illinois, my argument here is very simple, 
and it is this: The Department of Justice, under Joe Biden and under 
Merrick Garland's leadership, has become a weapon for political 
intimidation as opposed to an instrument to prosecute justice in this 
country.
  My colleague from Illinois says that Donald Trump has asked me to do 
this. He, of course, has no evidence for this fact, and I have never 
had a conversation with President Trump to this effect.
  What I have said publicly and privately and to anyone who will listen 
is that the Department of Justice should be about justice and not about 
politics.
  This hold policy, which covers two nominees right now and maybe a 
third coming up to the Department of Justice, is simply to say that 
this cannot go on. We are a republic, not a banana republic. So long as 
Merrick Garland prosecutes not just Donald Trump but any number of 
political opponents--from Catholic fathers of seven to parents 
protesting peacefully at their school board meetings--so long as the 
Department of Justice focuses on citizens exercising their rights 
rather than criminals who are violating the rights of others, I will 
continue to object, and I do object.
  The PRESIDING OFFICER. The objection is heard.
  The Senator from Illinois.
  Mr. DURBIN. Madam President, I keep hearing this argument over and 
over again--weaponizing the Department of Justice. His complaint is 
that the Department of Justice has decided that Donald Trump, an 
American citizen, should be held responsible for his own conduct. Why 
would you argue that any citizen in this country is above the law?
  I didn't choose to make that strategy or even support it publicly, 
but I can't argue with the decision by the attorney general, nor the 
State of New York, nor the State of Atlanta, who believe that Donald 
Trump did things that he should be held accountable for. He will have 
his day in court, like every American citizen. He should not be put in 
some saintly status that he can't be touched.
  To think that in order to show my protest to any policy, I want to 
see the Department of Justice of the United States grind to a halt--
does the Senator have any idea what he just said? To think that we 
would stop the court proceedings, we would stop the prosecutions, we 
would stop the war against drugs, we would stop the war against 
terrorism, have them grind to a halt because I am mad that the former 
President is being, in my mind, harassed by this administration--this 
is irresponsible conduct, it is dangerous conduct, and it is a terrible 
precedent to set in the Senate that we would say to any individual: You 
have the power to stop a nominee who has been found to be acceptable on 
a bipartisan basis through the Senate Judiciary Committee.
  You know as well as I do that these nominees come before the 
committee, and both staffs, Democrat and Republican, tear through them 
to look for any flaws or any reason to stop the nominations.
  These two nominees in Ohio--his home State--and in Illinois both 
passed the test, the bipartisan test, and they were on their way to do 
a job for America and make it a safer place to live, and he stops them 
because he doesn't like the way Donald Trump is being treated. Is that 
a fact? He admits it on the floor of the Senate.
  It is hard to explain to the Senator--he is new to the Senate, 
relatively new to the Senate--that some of the traditions in the Senate 
are worth keeping.
  The fact that we gave 85 U.S. attorney nominees to Donald Trump as 
Democrats and did it without a single record vote is an indication we 
were trying to help his administration do their job. Why won't the 
Senator from Ohio let the Biden administration do their job and keep 
his own State safe?
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Massachusetts.


                   Unanimous Consent Request--S. 1819

  Mr. MARKEY. Madam President, 2 weeks ago, our Nation surpassed 38 
mass murders--the highest level since 2006. Since then, at least three 
additional mass murders have occurred. This harrowing record serves as 
another forceful call to action for Congress. We must act today to end 
gun violence. That is why I rise today in support of my 3D Printed Gun 
Safety Act.
  I rise for those festival-goers in Las Vegas. I rise for patrons of 
Pulse nightclub and Club Q. I rise for the children in Sandy Hook, 
Uvalde, and Nashville. I rise for Mainers in Lewiston. I rise for all 
those victims whose names are not well known and whose stories do not 
dominate the airwaves. I rise, I rise, and I rise again.
  There is no conceivable reason to further delay another gun violence 
prevention vote in the U.S. Senate. Senate Republicans are blocking the 
will of the American people and exposing Americans to unnecessary 
bloodshed.
  This month, the Gun Violence Archive reported just under 40,000 gun-
related deaths in the United States this year, including over 22,000 
suicides. Additionally, over 1,500 minors under the age of 18 have been 
fatally shot.
  I rise today for the 40,000 families whose lives are forever changed 
because Republicans refuse to take action on gun violence--40,000 
families.
  This Congress unfortunately has no shortage of brutally tragic 
stories to remind us that the most vulnerable among us will continue to 
suffer from firearm violence if we fail to act. We need to act now--and 
we should have acted a long time ago--to pass commonsense legislation 
that keeps guns out of dangerous hands.
  There is a long list of commonsense bills that Democrats have 
introduced this Congress to prevent gun violence, but Republicans have 
not allowed a vote on a single bill. None of the bills have ever seen 
debate on the floor of the U.S. Senate. Just last week, Republicans 
blocked votes on a bill requiring safe storage of firearms and on a 
background checks bill, which is supported by 9 out of 10 Americans.
  Experts continue to point to the availability of guns as the primary 
cause of the rise in gun violence in our country. It is unconscionable 
for my colleagues on the other side to continue to ignore this reality.
  We are now faced with a terrifying new source of gun violence: 3D-
printed firearms. 3D printing is an easy, quick, and inexpensive method 
for people to obtain a firearm who otherwise would be prohibited from 
doing so. Middle schoolers with access to their school's computer labs 
could print them. Convicted domestic abusers could print them.
  It is not only 3D-printed guns but also gun components, 3D-printed 
components, including silencers, scopes, and braces, which increase 
lethality for those who are harmed by them, and 3D-

[[Page S5950]]

printed components can turn a semiautomatic firearm into an automatic 
firearm.
  These guns present modern and unique challenges. Some 3D-printed guns 
are entirely plastic and evade metal detectors. This increases safety 
risks in public venues secured with metal detectors, such as airports, 
courts, concert halls, and government buildings. And 3D-printed guns 
are not typically serialized and therefore are not readily traceable. 
That increases the burden on local law enforcement as they work to 
solve cases across our country.
  It is imperative that we put an end to the proliferation of these 
deadly weapons. So how can we do it? Well, we need to stop this problem 
at the source: readily available online blueprints.
  Currently, the online sharing of blueprints is legal in all but two 
States in our country. My bill, the 3D Printed Gun Safety Act, would 
change that. My bill would make it unlawful to intentionally distribute 
3D printer files that can produce firearms or any related parts. This 
change is common sense and constitutional, and it will save lives. A 
world where 3D printing instructions for firearms are freely accessible 
is a world where anyone can have a machine gun printed out in minutes.
  I understand and appreciate that we do not all share the same views 
on gun violence prevention, but thousands of Americans have already 
died this year due to Republican obstructionism on sensible gun 
violence prevention reform.
  We must end the stranglehold the National Rifle Association--the 
NRA--has on congressional Republicans. It is time to make NRA stand for 
``not relevant anymore'' in American politics. That is what has to 
happen. That is the revolution we need in this country.
  I thank Senator Menendez and Representative Moskowitz for their 
partnership. I thank Brady, Everytown, Giffords, and March for Our 
Lives for their advocacy. I thank the many organizations and organizers 
on the ground who are in every State helping families and communities 
to heal from the devastating impacts of gun violence. I thank my 
Democratic colleagues, who have staunchly supported every action that 
has come to this floor in an attempt to put an end to the scourge of 
gun violence.
  Gun violence is tearing apart Republican and Democratic communities 
alike in this country. Stand with us on the right side of history. 
Today, we can start the long process that we are going to need of 
national healing right here in this Chamber.
  I ask my colleagues for their support for my bill today.
  Madam President, I ask unanimous consent that the Committee on the 
Judiciary be discharged from further consideration of S. 1819, the 3D 
Printed Gun Safety Act of 2023, and that the Senate proceed to its 
immediate consideration. I further ask consent that the bill be 
considered read a third time and passed and that the motion to 
reconsider be considered made and laid upon the table.
  The PRESIDING OFFICER. Is there objection?
  The Senator from North Carolina.
  Mr. BUDD. Madam President, reserving the right to object, I oppose S. 
1819 because it is a solution in search of a problem.
  First and foremost, people have made their own firearms since before 
America's founding. This is not a new issue in need of emergency 
legislation.
  Second, firearms manufacturing is already very highly regulated. For 
example, the 1988 Undetectable Firearms Act made it unlawful to 
manufacture, import, sell, ship, deliver, possess, transport, or 
receive a firearm that cannot be detected by a conventional metal 
detector.
  And even if someone violates this law using 3D technology, metal 
ammunition cartridges and the bullets themselves would still be 
detectible.
  Third, 3D printing of firearms is an extremely technical process that 
requires high-level technology and an extensive time commitment, not to 
mention an extreme financial cost. Simply put, 3D manufacturing of 
firearms would be an entirely ineffective way for a criminal to obtain 
a firearm.
  Fourth, this bill would be an unconstitutional infringement on the 
First Amendment speech rights of law-abiding hobbyists and firearms 
enthusiasts who simply want to share specifications about unique or 
antique firearms.
  At the end of the day, we don't have a device problem; we have got a 
people problem. And this bill represents another attempt by some to use 
fear and misunderstanding to layer more Federal regulations on an 
already highly regulated industry.
  If we share the goal of keeping our fellow citizens safe, a better 
approach would be to enforce the laws that are already on the books and 
to fully fund and support the police and reverse the soft-on-crime 
policies of Democrat-run cities. And that is how we ensure public 
safety.
  Madam President, I object.
  The PRESIDING OFFICER (Ms. Cortez Masto). Objection is heard.
  The Senator from Kentucky.


                             Point of Order

  Mr. PAUL. Madam President, I raise a point of order that section 7902 
of the conference report to accompany H.R. 2670, the National Defense 
Authorization Act, violates rule XXVIII.
  The PRESIDING OFFICER. The Senator from Rhode Island.


                            Motion to Waive

  Mr. REED. Madam President, pursuant to rule XXVIII, paragraph 6, I 
move to waive all applicable points of order, and I ask for the yeas 
and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  The yeas and nays were ordered.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. LEE. Madam President, I would like to begin my remarks by 
focusing on what we are debating and what we are not debating. We 
really need clarity on this point of order and what it is about.
  To be perfectly clear, what this point of order would do would simply 
be to remove from the National Defense Authorization Act a nongermane 
reauthorization of a surveillance authority--section 702 of the Foreign 
Intelligence Surveillance Act--that has a well-documented history of 
abuse.
  Including the reauthorization in the NDAA, of course, violates rule 
XXVIII of the Senate rules governing conference reports. This 
particular provision was airdropped into the National Defense 
Authorization Act, notwithstanding the absence of any predicate for 
that provision either in the House version or the Senate version of the 
bill, which, of course, the conference committee was created to iron 
out. It was created to iron out the differences between those two 
bills.
  Because it was in neither version, the Senate Parliamentarian 
correctly concluded that this is a nongermane addition to the measure, 
and as such, it is subject to a rule XXVIII point of order.
  What this means as a practical matter today is this comes out; it 
comes out unless 60 Senators make a deliberate, conscious choice and 
make that choice by voting to waive rule XXVIII. They would be saying: 
Yeah, it is not germane. Yeah, it wasn't in the House version or the 
Senate version. Notwithstanding that, we want it in there anyway.
  For the reasons that I will articulate now, that would be a grave 
mistake--a grave mistake on multiple levels. As I make that 
explanation, I do want to clarify at the very outset what I am not 
asking for, what is not my objective here. My objective is not to cede 
our ability to collect the substance of communications from our foreign 
adversaries under section 702 of FISA. That is not it. I am not trying 
to make the whole program go dark.
  What I am talking about is the fact that we need much needed reform 
in this area because section 702 of the Foreign Intelligence 
Surveillance Act has been widely, infamously, severely abused over a 
long period of time, to the point that, literally, hundreds of 
thousands of American citizens have become victims of what I refer to 
as warrantless backdoor searches.
  What does this mean? OK. So the way it works under FISA 702: FISA 702 
allows our intelligence-gathering Agencies to go out and scoop up 
information--bits of information, recordings, phone calls, records of 
things like texts and email exchanges, and other types of electronic 
communications--and store them in a database. Insofar as those are 
directed, as section 702 orders are supposed to be under the Foreign

[[Page S5951]]

Intelligence Surveillance Act, at foreign nationals operating on 
foreign soil, we are not concerned about them.
  The Fourth Amendment is not there to protect them. It is not there to 
protect our foreign adversaries operating on foreign soil. No. It is 
there to protect the American people, the American people against their 
own government.
  The Fourth Amendment has been around for a long time. It has been on 
the books in the United States since 1791 when it was made part of the 
Constitution. And it provides, in essence, that you are entitled to a 
reasonable expectation of privacy in your person, in your papers, in 
your home; that the government can't just come in and search and seize 
your papers, your personal effects and communications--not without a 
warrant, a warrant that has to be based on probable cause, evidence of 
probable cause of a crime and that describes, with particularity, the 
things to be searched, the items to be seized, and so forth.
  While new to this country as a matter of U.S. constitutional law as 
of 1791, it actually goes back a lot farther than that. These were 
things that evolved over many centuries under British law--and with 
good reason. So it was with good reason, it was on that foundation--
centuries of British common law experience--that we adopted the Fourth 
Amendment into our Constitution. And it matters that we follow it. It 
matters that we follow it in every circumstance.

  And every American ought to be concerned about deviations from that, 
especially whereas here, there is a pattern and practice of abuse, of 
going after Americans' communications.
  So how does that happen?
  In a database that is full of communications collected on and from 
and pertaining to our foreign adversaries on foreign soil, how do the 
rights of American citizens end up being threatened by that?
  Well, here is how it happens: When they collect all of this stuff--on 
some occasions, foreign nationals communicate with friends, relatives, 
business associates--I don't know--perhaps intelligence targets, 
whatever they may be, who are in the United States, who are United 
States citizens. So some of those conversations--by phone, by text, by 
email, or whatever electronic means--end up being, as we say, 
incidentally collected and placed into the 702 database.
  One of the biggest things we are concerned about here is that on 
literally hundreds of thousands of occasions, innocent, law-abiding 
Americans have been subjected to what we call a backdoor, warrantless 
search whereby someone at the FBI or another Agency enters in 
information.
  They know that Bob Smith has a certain phone number or a certain 
email address or some other identifier; they know that Bob Smith is a 
U.S. citizen; and they go in and they search for communications in the 
702 database pertaining not to a foreign terrorist, not to an agent of 
a foreign power outside the United States, not to a foreign adversary 
in any way outside the United States, but to Bob Smith, the law-abiding 
American citizen. In that circumstance, it is a problem. It is a 
problem to go into that without a warrant.
  That stuff is there not just for the government's curiosity. It is 
there not for some voyeuristic, pleasure-seeking impulse on the part of 
Federal agents. No. It is there to protect the United States of America 
from foreign adversaries and to allow us to track our foreign 
adversaries and what they are doing. And so in order to go into that 
database, they should have to get a warrant.
  Now, deep down, folks at the FBI appear not to disagree with that, at 
least in the sense that they try mightily to convince us that they are 
already preventing warrantless backdoor searches of American citizens' 
private communications on that database. In fact, they have been doing 
this. I have been in the Senate--along with my friend and colleague, 
the junior Senator from Kentucky, we have both been here for 13 years. 
The entirety of that time, I have served on the Senate Judiciary 
Committee. The entirety of that time, I have questioned FBI Directors 
and other people within the government, asking them about what happens 
with this 702 database, particularly as it relates to private 
communications that are stored in the 702 database of American citizens 
and searches involving American citizens.
  Over and over and over again, for 13 years, like deja vu all over 
again, I get the same variation of the same set of answers: Don't 
worry. You have got nothing to worry about. We have really good 
procedures in the U.S. Government. We follow those procedures. We take 
them seriously. We are professionals, and we will not mess with your 
information.
  Yet again and again and again and again, every single time they make 
that promise, it is like it is a curse because it gets worse every 
single time they say it. And every single time, I ask them more 
questions designed to delve into what they are actually doing, and 
every single time, including my most recent interaction with the FBI 
Director, Christopher Wray, just last week, it becomes clear, on closer 
examination, that they are not really stopping these things from 
happening.
  In fact, just last week, Director Wray had the audacity to tell me 
that, no, this has all stopped now because he adopted some new 
procedures--like I hadn't heard that one before--when, in fact, some of 
the examples he pointed to were things that supposedly happened only 
after he had adopted these procedures and all the bad stuff had stopped 
after those procedures--it turns out, some of those things had happened 
after he had adopted those procedures.
  No surprise to me; no surprise to anyone who has followed this; no 
surprise to anyone who understands human nature. And those within 
government exercise power that doesn't belong to them.
  So we shouldn't be reauthorizing this, not in the NDAA. Not only is 
it not germane, not only was it not in the House version or in the 
Senate version, Madam President, it is not even necessary.
  Why? OK. When you look at the statutory text, the statutory text 
adopted by the U.S. Congress in the Foreign Intelligence Surveillance 
Act amendments of 2017, which I think took effect in early 2018, they 
make abundantly clear that they were written in such a way as to 
provide for this very circumstance, meaning the circumstance in which 
we are approaching now, the scheduled expiration of section 702 of FISA 
at midnight on December 31, on New Year's Eve.
  So at the stroke of midnight--now New Year's Day--FISA expires. Those 
who are in favor of waiving this point of order, disregarding the 
Senate rule XXVIII that should require us to strike this unnecessary, 
overbroad, and manipulative extension of FISA 702, they would have us 
believe that Armageddon will immediately be upon us--dogs and cats 
living together in the streets, the wrath of God, Apocalyptic stuff 
like we never experienced. Why? Because FISA 702 will have gone dark.
  The problem with that argument: It is not true. It flies in the face 
of statutory text adopted by this Congress the last time we 
reauthorized FISA 702. And that language makes clear that even if FISA 
702 expires during that time period, because there was a certification 
granted by the Foreign Intelligence Surveillance Court, known as the 
FISC--and that was issued on or about April 12 of 2023 and those 
certifications are designed to carry forward 365 days--we have at least 
until the end of the day on April 11, 2024, before communications could 
no longer be collected under section 702 because, again, we have the 
certification that is in place.
  That certification, together with the language that was passed the 
last time we extended FISA 702, inadvisably--inadvisably--without any 
major statutory reforms--but we did include that one--we made that the 
case. So it is not going to go dark.
  If Senator Paul's point of order under rule XXVIII succeeds, and if 
we are able to thwart the effort to waive that--and it would take only 
41 of us to do it, only 41 of us would have to stand behind that to 
prevent them from getting it to 60 to waive it--if that happens, it is 
still not going to go dark. It wouldn't go dark unless or until we 
hadn't extended FISA 702 before April 11, 2024.
  It begs the question: Why in the Sam Hill did we have to put this 
thing in here if it wasn't necessary?
  Well, I have a sneaking suspicion I know why some might hope that it

[[Page S5952]]

happens that way, for the same reason that it is not going to make 702 
collection go dark as of 12:01 a.m. on New Year's Day. This measure, 
the 702 extension buried within the 3,000 or so pages of the National 
Defense Authorization Act, will give them a bright and golden 
opportunity to make this not a 4-month extension of FISA 702 but a 16-
month extension of section 702.
  In other words, if you read through the statutory text that we 
adopted the last time we reauthorized 702 and you wanted this to extend 
and you wanted to make sure that we delayed and delayed and delayed the 
period of time in which Congress would be forced to make a decision--a 
decision could result in serious reforms to FISA 702--what would you 
do?
  Well, you would pass this very thing. You would waive Senator Paul's 
point of order under rule XXVIII. And then you would probably wait 
until April, I don't know, 10 or 11 of 2024. You would go back to the 
FISC--the Foreign Intelligence Surveillance Court--and you would ask 
for a new certification. A certification that would do what? Move it 
forward another 365 days.
  We would now be punting until April 2025, well after the 2024 
election cycle had run to its end before having to address this. That 
is what we are dealing with.
  Now, let's back up a minute. Let's say that there are some within the 
sound of my voice who might disagree with my interpretation of the 
statutory text we adopted the last time we renewed section 702 of the 
Foreign Intelligence Surveillance Act. They would be wrong because the 
text is really clear, but let's just assume that for a minute. Let's 
accept that premise for purposes of argument here. Even if that is the 
case, we can still strip out this poorly written measure and replace it 
with another freestanding measure, not adopt it as part of the NDAA--
one that I prepared, one that I am introducing, along with my lead 
Democratic cosponsor, Oregon Democratic Senator Ron Wyden--that would 
reauthorize section 702 until mid-March. It would reauthorize it with 
instructions that say: If during that time period the FISC issues a new 
certification, that certification may not be read to authorize further 
collection under 702 if during that time period FISA 702 were to 
expire.
  This makes a huge difference because if we do it this way, rather 
than through the National Defense Authorization Act, as Senator Wyden 
and I have proposed doing, then we will actually have a force-moving 
event. We will actually have a real opportunity for the House and for 
the Senate to have an open, honest, robust, roiling debate about the 
nature and extent of the abuse that we have seen under FISA 702.
  And we will be in a great position at that point to adopt real 
reforms--real reforms that would require you to get a warrant. If you 
want to collect information specifically on Americans in this FISA 702 
database, you need to get a warrant. You just do.
  The government may not like it because governments never like 
anything that makes it more difficult to do what they want to do, but 
our law enforcement Agencies do it all the time. They do it because 
they have to because it is the law, and it is the Constitution. We 
don't deviate from that. It is bad.
  Somehow these intelligence gathering agencies and the FBI think that 
they are exempt when it comes to FISA 702. They are not. They should 
not be. No American should be comfortable with that. Recent experience 
and long-term experience have both taught us that there is a grave risk 
in doing that, in simply ignoring it, in simply presuming that the 
human beings that operate in this environment will always have their 
best interest at heart.
  And yet, they want to push ahead with this measure, saying that the 
sky will fall. It will not. I am absolutely convinced, if we succeed 
tonight--if Senator Paul's point of order succeeds and it is not 
waived--I am confident that within 24 hours, we can and we will adopt 
this freestanding measure to make sure that 702 doesn't go dark. Even 
though it wouldn't go dark otherwise, even though we won't need it, we 
are willing to do that. We are just wanting to clarify one thing, which 
is that we still have to have this debate. We still have to have a 
force-moving event in the next few months that works out the case, that 
reforms the system, that requires the government to get a warrant if 
they are going after an American. It is not too much to ask, not at 
all.

  We have proposals that are ready to do that. I have a bill that I 
introduced with Senator Wyden, the Government Surveillance Reform Act. 
There is a counterpart to that in the House of Representatives. It 
passed out of the markup in the House Judiciary Committee just last 
week. It contains these and other reforms, reforms about having to get 
a warrant, reforms that would impose some consequence to those 
government agents who abuse the system. And lest you think, even for a 
moment, that these abuses are contrived, fictitious, or a figment of 
our imagination--some sort of paranoid fantasy hallucination--they are 
not.
  We need to support this point of order. We need to not waive it. 
Waiving it is lawless. Waiving this particular point of order would 
contribute to more circumvention of the Fourth Amendment.
  In the spirit of English parliamentarian John Wilkes, whose rights 
under English law and the English Constitution were violated just 
before Easter in 1763, he stood up to the government. He stood up to 
the government. He stood up to the government of King George III, and 
he said: No, you are not doing this. He sued the officers who had 
carried out what was, in effect, a warrantless search of his home under 
the use of a general warrant. In some ways, it looks a little like a 
702 collection of a citizen. In other ways, it is different because 
they didn't have the technology that we have got now, but the same 
principle applied.
  He sued the King and his Ministers, and he won a large money 
judgment. He got all this as a result--and he was searched as a result 
and he was jailed in the Tower of London for a time as a result of his 
publication of a document known as North Britain No. 45.
  North Britain No. 45 criticized King George III and his Ministers 
for, among other things, using general warrants, warrants that 
basically said go out and find people who did bad stuff, search them, 
seize their papers, their possessions, them, if necessary, and make it 
happen--no particularity requirement, no probable cause. Just go do it.
  No. 45--a reflection of North Britain No. 45--quickly became 
synonymous on both sides of the Atlantic with the cause of liberty and 
with John Wilkes himself and with the cause against warrantless 
searches and seizures and the use of general warrants, which might as 
well be warrantless searches and seizures.
  John Wilkes would be appalled by what he sees today. And the American 
people, just as they heralded him, an ocean away, in the 1760s and 
1770s, after this happened, just as he was celebrated all over England 
by remembering him by the No. 45, they were celebrating him then too.
  So, too, today the American people will be pleased because they will 
have reason to celebrate that they are no longer subject to these 
warrantless searches because they are wrong.
  Once again, lest you be convinced, even for a moment, that this is 
hyped up, it is not. Now, look, if you are comfortable with the 
government, under the pretext of looking for foreign surveillance and 
without any kind of warrant, let alone evidence establishing probable 
cause, let alone something that would satisfy the particularity 
requirement of the Fourth Amendment--if you are comfortable with the 
government violating civil liberties of the American people this way, 
if you are comfortable with them violating the liberties of at least 
one sitting Member of the U.S. Senate--could be any of us--violating 
the civil liberties of at least one sitting Member of the House of 
Representatives--could be any of them, not sure who it was--with them 
violating the civil liberties of protesters, both conservatives and 
liberals, Republicans and Democrats, with them violating the civil 
liberties of 19,000 law-abiding innocent Americans whose only common 
thread was the fact that they all happened to have donated to a 
particular political campaign, if you are OK with these and hundreds of 
thousands of other egregious violations of the letter and spirit of the 
Fourth Amendment, then, by all

[[Page S5953]]

means, you should feel free to go ahead--go ahead--and support the 
motion to waive.
  But if you are not OK with any of those things and don't think anyone 
is immune from them--if you are not OK with any of these things--it is 
illogical, it is irrational, it is insane to do anything other than to 
oppose the motion to waive the point of order.
  So I will close by asking the question: Why would they want to do 
this? Those who are so dug in and making this even harder for the NDAA 
to pass in the House--you know, because of the fact that they 
airdropped this thing into the NDAA at the last minute sparked such a 
controversy over there that they are having to bring it up under a 
procedure known as suspension of the rules.
  Suspension of the rules requires them to pass it with 290 votes 
instead of 218. It would make it infinitely easier for this thing to 
get passed and passed quickly over there if we just listen to Senator 
Paul, if we just sustain rather than waiving, foolishly, the point of 
order that he is making under rule XXVIII.
  They are wanting to avoid not only changing 702 and making the 
Federal Government answer to the people according to the U.S. 
Constitution, they are unwilling even to face the music of this 
debate--a debate that is long overdue, a debate that we should have had 
and that should have culminated in reforms through legislation in 2018 
but did not. And shame on all of us for not making that happen. Some of 
us tried. We were overcome. But the American people are not going to 
take this anymore, nor should they.
  So if you are not comfortable with those kind of abuses--and I think 
we should all be uncomfortable--with this sacrifice of liberty on the 
altar of fear, uncertainty, doubt, and dogged secrecy, then support 
Senator Paul--support him in his meritorious point of order and oppose 
the motion to waive that point of order. The American people expect 
more, and the Constitution demands it.

  Mr. VAN HOLLEN. Madam President, with regards to the motion to waive 
the point of order against the FISA section 702 provision in the 
conference report, I share the sponsor's concerns on the potential 
expiration of section 702 authorities, which are critical to foreign 
intelligence collection efforts and protecting the homeland. However, I 
am also deeply concerned that Section 7902 of the NDAA extends section 
702 authorities without much-needed reforms to better protect the civil 
liberties of Americans.
  Despite the fact that surveillance under this section is supposed to 
be limited to certain foreign nationals abroad, a FISA Court opinion 
released in July 2023 stated that the FBI conducted approximately 
40,000-50,000 warrantless ``back door'' search queries of section 702 
communications data targeting U.S. persons per quarter in 2022. I 
support the FBI's initiative to voluntarily adopt stricter internal 
compliance rules to address this problem, but the administration and 
Congress must work together to do more to balance the need for 
intelligence collection and the protection of civil rights.
  Due to the FISA Court's certification process, the administration has 
acknowledged that, even in the absence of a formal 4-month extension, 
the government is able to conduct surveillance authorized under section 
702 until April 11, 2024. I also understand that a formal extension of 
FISA authorities through April 2024, would effectively reset the clock 
and allow the administration to obtain a fresh certification from the 
FISA Court, thereby effectively extending the authority for an 
additional 12 months beyond the 4-month extension. That would only 
further delay our opportunity to review the program and propose 
necessary reforms. For the record, I would have supported an 
alternative that extended the formal authorization through April 2024, 
so long as it would have prevented the administration from obtaining a 
fresh certification to extend the program for another year after that. 
That alternative is not, however, before the Senate. The bottom line is 
that I agree that the section 702 program is necessary for our national 
security, but I also think it needs to be reviewed and reformed.
  We should not short-circuit the robust, bipartisan discussions in 
Congress on how to reform this authority with a lengthy extension. I am 
voting against this motion to waive the point of order so we can pair 
the extension of section 702 surveillance programs with a serious and 
targeted reform effort that maintains critical national security 
capabilities in a manner consistent with constitutionally protected 
rights.
  The PRESIDING OFFICER. The Senator from Kentucky.
  Mr. PAUL. During the 1960s, the FBI spied on Martin Luther King and 
other civil rights protestors. The FBI spied on Vietnam war protesters. 
The Church Committee was formed in the 1970s and detailed these abuses, 
and the response by Congress was to pass something called the Foreign 
Intelligence Surveillance Act, or FISA. FISA was ostensibly passed to 
limit spying on Americans. It was supposed to be a reform, but as far 
as the Foreign Intelligence Surveillance Act allows government to spy 
on U.S. citizens without a warrant, it is unconstitutional.
  As Dr. John Tyler from Houston Christian University points out, ``the 
FISA text, the Constitution's text, and the relevant opinions by the 
U.S. Supreme Court conclusively demonstrated that FISA, and its secret, 
ex parte''--meaning you only hear from one side of the court--these 
``courts are unconstitutional for three reasons.''
  ``First, the secret, ex parte courts violate the case or controversy 
requirement of Article III.''
  Courts are about deciding disputes between two parties. They aren't 
originated just to say: This is a pronouncement. There has to be a 
dispute, and in the FISA Court, it is more about having a generalized 
comment.
  ``Second, FISA violates Fourth Amendment liberties from unreasonable 
searches and seizures.''
  ``Third, FISA and its secret ex parte courts violate the due process 
guarantees of the 5th and 14th Amendments.''
  Dr. Tyler goes on to say that ``lastly, the Supreme Court has ruled 
that national security does not require secret courts or justify 
ignoring the Fourth Amendment liberties.''
  This unconstitutional government spying has been further authorized 
by adding section 702 to FISA. That law entrusts America's intelligence 
Agencies with broad authorities, supposedly to surveil foreigners 
abroad. But time has proven, again and again, that America's 
intelligence Agencies cannot be trusted with this immense power and 
responsibility.
  Section 702 expires at the end of this year. We have known this for 5 
years, and yet somehow the Senate has no time to debate this and wishes 
to simply extend it.
  Members of Congress anticipated using this deadline as an opportunity 
not just to make meaningful changes but to reform FISA generally to 
better protect Americans' civil liberties, but it doesn't appear to be 
allowed to happen at this point. Everything is rush, rush, rush; let's 
pass it without debate. But they have known for 5 years that it was 
going to expire at the end of this year, and yet they just want to punt 
it with the hope that they will never have to debate it.
  Extending this section 702 robs Congress of the ability to make 
reforms now and likely robs Congress of the opportunity to make reforms 
any time in the next year. That means that, once again, the 
intelligence Agencies that ignore the constraints on their power will 
go unaddressed and unpunished, and the warrantless surveillance of 
Americans in violation of the Bill of Rights will continue.
  Using 702, Americans' communications, content, and metadata is 
inevitably swept up and kept in government databases without a warrant. 
Law enforcement Agencies then access Americans' communications, once 
again without a warrant. In other words, your texts, your emails, and 
your phone calls are collected into this massive government database, 
without a warrant, and then searched willy-nilly by thousands of 
different employees without a warrant.
  As Judge Andrew Napolitano points out, ``the Constitution requires 
probable cause of a crime to be demonstrated to a judge before a judge 
[grants] a warrant. That was the law of the land until FISA.''
  But now FISA has set up a special court that meets in secret, the 
Foreign Intelligence Surveillance Court, and it

[[Page S5954]]

authorizes ``judges on that court to issue search warrants based on a 
lower standard of probable cause.''
  The Fourth Amendment says you have to prove to a judge probable cause 
of a crime. This says you only have to prove probable cause of an 
association with a foreign entity. This is contrary to the 
Constitution. This is not the Fourth Amendment.
  The Constitution requires that warrants be issued on probable cause 
that a crime has been committed, but as Judge Napolitano makes clear, 
``FISA established probable cause of foreign agency.'' So it lowered 
the standard. It is not probable cause of a crime. It is probable cause 
of association with a foreign agency.
  But even that standard ``morphed [down] into probable cause of 
speaking to a foreign person,'' which then again morphed even further 
down to ``probable cause of speaking to any person who has ever spoken 
to a foreign person.'' All of that happened in secret and without 
Congressional approval.
  With this weakened standard to order surveillance, these FISA judges, 
who meet in secret, grant 99.97 percent of all warrants. They are a 
rubberstamp for whatever they want to do. The left-leaning Brennan 
Center for Justice further explains why a law designed to protect the 
Fourth Amendment has led to their dissolution.
  The Brennan Center states that ``dramatic shifts in technology and 
law has changed the role of the [FISA] Court since its creation in 
1978.''
  ``The fundamental changes not only erode Americans' civil liberties, 
but [they] likely violate Article III of the U.S. Constitution, which 
limits courts to deciding concrete disputes between parties rather than 
issuing opinion on abstract questions.''
  According to the Brennan Center, ``today's FISA Court does not 
operate like a court at all, but more like an arm of the intelligence 
establishment.''
  ``The FISA Court's wholesale approval process also fails to satisfy 
standards set forth by the Fourth Amendment, which protects against 
warrantless searches and seizures.''
  Some people issued prescient warnings about the destruction of civil 
liberties and constitutional rights at the time. At the time, then-
Senator Joe Biden stated that he was voting no on this section 702, 
this expansion of FISA powers. Senator Joe Biden said it ``would be a 
breathtaking and unconstitutional expansion of the President's powers 
and it is wholly unnecessary to address the problems the administration 
has identified.'' Then-Senator Biden added that he would ``not give the 
President unchecked authority to eavesdrop on whomever he wants in 
exchange for the vague and hollow assurance that he will protect the 
civil liberties of the American people.''
  Boy, I wish that Joe Biden were still around and remembering his 
comments about FISA.
  Patrick Eddington of the Cato Institute has dedicated his career to 
exposing the abuses of surveillance authorities. He argues that section 
702 of FISA and its predecessors comprise the ``biggest 
unconstitutional mass surveillance dragnet in American history'' and 
that ``we have documentary evidence from the federal government's own 
records of repeated, systemic abuses'' of this authority.

  Even the FISA Court itself, in 2018, held that the FBI's procedures 
for accessing Americans' communications that are incidentally collected 
under 702 violate both the statute and the Fourth Amendment. Even the 
FISA Court, which rubberstamps these warrants like there is no going 
away, says that they believe they are violating the Fourth Amendment.
  But this warrantless surveillance on Americans goes on. In 2021 
alone, the FBI conducted 3.4 million warrantless searches of Americans' 
communications. Like the spying on Martin Luther King and Vietnam war 
protesters, the FBI still targets individuals for their beliefs.
  The FBI accessed the 702 database without search warrants to access 
the information of 19,000 political donors. They accessed the records 
of those involved with a protest on January 6. They accessed the 
records of a Member of Congress and ``Black Lives Matter'' activists.
  You might think, oh, I have got nothing to hide, no big deal. You 
might think that if you avoid political activity, you can avoid the 
long arm of the government.
  But think again. If you call a merchant in England or text a family 
member in Germany or email a friend in Israel, the feds can seize and 
search your communications without permission, without a warrant, and 
without due process.
  But that is not all. The Federal spies can then capture all the 
communications of the persons you subsequently reached out to and all 
the persons they reached out to. It goes on and reaches its tentacles 
out, such that it gathers millions of communications.
  Imagine a Senator or a Congressman who talks to a Prime Minister 
overseas. Their communication is in the database.
  To allow this to happen--imagine all of the people who are in 
international business and who make international phone calls. Their 
phone calls are in the database.
  And it would be one thing if we were just collecting this to look at 
terrorist activities, but, no, we let the FBI search any American's 
name in there. They can go in under any pretext.
  We told the FBI: You have to list why you are searching the name. And 
they didn't do it. They actually go around some of the rules by saying: 
Oh, let's search 10,000 things and call it 1 query.
  We cannot trust them. You cannot trust the fox to be in charge of the 
henhouse. We need controls, and Congress needs to do their job.
  We had 5 years to think about this. It comes up, and we are just 
going to airdrop it in and say: Sorry. We haven't had time to think 
about this. We don't have time to reform it. We don't care about 
Americans' privacy.
  That is what the majority, who will vote to just drop this in and 
turn the other way, will do.
  It would be bad enough if the FBI limited itself to eviscerating the 
Fourth Amendment and indiscriminately collecting and searching the 
private communications of millions of Americans, but it is far worse 
than that.
  As we all know, the FBI abused the immense power conferred to it by 
FISA to subvert a Republican Presidential campaign. In its zeal to 
investigate Carter Page, a foreign policy adviser to Candidate Trump, 
the FBI sought to obtain permission to conduct electronic surveillance 
on Page, not by going to a real judge, in public, in an article III 
court, but by going to a secret judge.
  Imagine the chilling effect, if you can try to get beyond the 
politics of whether he is a Republican or a Democrat. Imagine the 
chilling effect of the government investigating political campaigns. 
How could anybody think that that is a good idea?
  To eavesdrop on Page, the FBI needed to get approval from the FISA 
Court, not a real warrant but just a warrant that he was associated 
with a foreign government. The secretive court that grants 99.97 
percent of warrants gave it to them.
  But the FBI also relied on information they were given by the Trump 
opponent's campaign--Hillary Clinton's campaign. You have something 
called the Steele dossier that was all over the news. That dossier was 
given to the FBI by a political campaign. It was essentially opposition 
research. Clinton's Presidential campaign and the Democrat Party 
obtained the secret surveillance order by subterfuge.
  But the FBI didn't verify or check the claims made in the dossier, as 
it is required to do by law. To put it in plain English, the FBI was 
able to spy on an American citizen because it presented the Democratic 
Party's opposition research as evidence to obtain a secret order on a 
campaign operative.
  This was fraud. This was an abuse of power. This was an attempt to 
undermine a Republican Presidential campaign.
  People talk about election interference. My goodness, what could be 
more of an interference in a campaign than getting a secret order from 
your intelligence Agencies to spy on a political campaign.
  The order was ultimately found to be misleading, and you would think 
this would have led to scandal. You would think this would have led to 
punishment, but no one, really, was ever punished for this.
  Even the New York Times described the effort to wiretap Carter Page 
as ``a

[[Page S5955]]

staggeringly dysfunctional and error-ridden process.''
  But these are not errors. These are not honest mistakes. These are 
abuses of power. The audacity to dupe and manipulate the secret FISA 
Court demonstrates that the misconduct was not mere accident, but 
rather demonstrates the arrogance that inevitably results when a 
secretive, one-sided process all but assures these Agencies will never 
be challenged.
  And what are we doing? The Senate will sweep this under the rug. We 
will have no reform. They have known for 5 years this is coming up, and 
they are not going to do a thing to reform it.
  Since the FBI demonstrated a willingness to evade the rules to spy on 
an aide to a Presidential candidate, we should not be surprised that 
Carter Page was far from the only victim of the abuse of FISA 
authorities. A subsequent Department of Justice review reviewed 29 
other FISA applications and found that each one contained factual 
discrepancies and errors, at an average of 20 mistakes per application.
  More recently, Special Counsel John Durham's report on the FBI's 
probe into the alleged collusion between Donald Trump and Russia 
revealed that at least some FBI agents abused America's surveillance 
apparatus to open a groundless counterintelligence campaign against a 
Republican Presidential candidate.
  And yet despite the abuses, despite the years of calls for reform, 
the Senate is presented with a defense bill that continues the status 
quo. In 5 years, they have had no time to debate this because they 
don't want to. They want to rubberstamp this, and they want to look the 
other way. Not one reform is included in this conference report that 
would address the neglect of the Bill of Rights. Rather, the only thing 
this conference report ignores is the long record of abuse of the 
Fourth Amendment.
  The Fourth Amendment is no mere limitation of government power. The 
Fourth Amendment is fundamental to the concept of American liberty.
  Today, the elected representatives of our country, whose Founders 
overthrew a King who claimed a mandate from Heaven to rule an empire, 
cannot muster the courage to tell its own law enforcement Agencies that 
we will not tolerate the evisceration of the Bill of Rights, nor the 
destruction of our electoral process.
  Why would any Senator vote to waive this point of order? How can you 
look your constituents in the eyes and justify your vote to empower 
government at the expense of American's individual rights?
  Do not fall for the hollow and cynical retorts from the other side 
who inevitably argue that the world is on fire. Those who make the lazy 
and predictable argument that government is your only shield from 
threats, always fail to mention that government itself is often a 
threat.
  I think it is high time we quit letting fear overrun our 
constitutional duty. The Members of this body should do themselves the 
honor of standing by their oath to the Constitution. To protect our 
civil liberties and the integrity of the congressional conference 
committee process, we must strip this extension of domestic spying 
authority out of the Defense bill.
  The PRESIDING OFFICER. The Senator from Rhode Island.
  Mr. REED. I yield back all remaining time.


                        Vote on Motion to Waive

  The PRESIDING OFFICER. All time is yielded back.
  The question is on agreeing to the motion to waive the point of 
order.
  The yeas and nays were previously ordered.
  The clerk will call the roll.
  The assistant bill clerk called the roll.
  The yeas and nays resulted--yeas 65, nays 35, as follows:

                      [Rollcall Vote No. 342 Leg.]

                                YEAS--65

     Barrasso
     Bennet
     Blumenthal
     Boozman
     Britt
     Budd
     Butler
     Capito
     Cardin
     Carper
     Casey
     Cassidy
     Collins
     Coons
     Cornyn
     Cortez Masto
     Cotton
     Crapo
     Cruz
     Duckworth
     Ernst
     Fetterman
     Fischer
     Gillibrand
     Graham
     Hassan
     Hickenlooper
     Hyde-Smith
     Kaine
     Kelly
     Kennedy
     King
     Klobuchar
     Lankford
     Manchin
     McConnell
     Moran
     Mullin
     Murkowski
     Murphy
     Murray
     Ossoff
     Padilla
     Peters
     Reed
     Ricketts
     Risch
     Romney
     Rosen
     Rounds
     Rubio
     Schatz
     Schumer
     Scott (SC)
     Shaheen
     Sinema
     Smith
     Stabenow
     Sullivan
     Thune
     Tillis
     Warner
     Whitehouse
     Wicker
     Young

                                NAYS--35

     Baldwin
     Blackburn
     Booker
     Braun
     Brown
     Cantwell
     Cramer
     Daines
     Durbin
     Grassley
     Hagerty
     Hawley
     Heinrich
     Hirono
     Hoeven
     Johnson
     Lee
     Lujan
     Lummis
     Markey
     Marshall
     Menendez
     Merkley
     Paul
     Sanders
     Schmitt
     Scott (FL)
     Tester
     Tuberville
     Van Hollen
     Vance
     Warnock
     Warren
     Welch
     Wyden
  The PRESIDING OFFICER (Mr. Ossoff). On this vote, the yeas are 65, 
the nays are 35.
  Three-fifths of the Senators duly chosen and sworn having voted in 
the affirmative, the motion is agreed to, and the point of order falls.
  The majority leader.
  Mr. SCHUMER. Mr. President, for the 62nd year in a row, the Senate is 
passing our annual Defense Authorization Act--one of the most important 
bills we work on each year to protect the American people and ensure 
our long-term security.
  At a time of huge trouble for global security, passing the Defense 
authorization bill is more important than ever. It will ensure America 
can hold the line against Russia, stand firm against the Chinese 
Communist Party, and ensures that America's military remains state of 
the art at all times all around the world.
  I thank my colleagues on both sides for their great work on the NDAA. 
I applaud the leadership of Chairman Reed--steady, steadfast, always 
getting it done--chairman of the committee, as well as the great 
cooperation he had from Ranking Member Wicker and all the members of 
the committee. I commend them for their good work.
  Thanks to the good work on both sides, the final version of the NDAA 
contains many of the most important bipartisan provisions we had in the 
Senate's original bill.
  We will give our servicemembers the pay raise they deserve. We will 
strengthen our resources in the Indo-Pacific to deter aggression by the 
Chinese Government and give resources for the military in Taiwan. We 
will give DOD more resources to deploy and develop AI, protect against 
foreign cyber threats, and increase transparency on unidentified aerial 
phenomena, which I was proud to work on with Senator Rounds.
  Critically, we will approve President Biden's trilateral United 
States, UK, and Australia nuclear submarine agreement. The AUKUS 
agreement is a game changer. It will create a new fleet of nuclear-
powered submarines to counter the Chinese Communist Party's threat and 
influence in the Pacific.
  I want to commend all the staff who made this possible: Liz King, 
Jody Bennett, Kirk McConnell, Damian Murphy, Andrew Keller, David 
Weinberg, Chris Mulkins, and so on. I also want to thank the floor 
staff and the legislative staff that worked so long and hard to get it 
done. And, of course, everyone knows I love my staff: Yazeed Abdelhaq, 
Gunnar Haberl, Raymond O'Mara, Mike Kuiken, Meghan Taira, and so many 
others. The staff has put in long hours, and all 100 Senators thank 
them.
  As I have repeatedly said, we began the month of December with three 
major goals here in the Senate before the end of the year. First, we 
had to end the blockade of the hundreds of military nominees. We have 
done that. Second, we needed to pass the NDAA. We are doing that now. 
And, finally, hardest of all, we must reach an agreement on a national 
security supplemental. We are trying.
  Democrats are still trying to reach that agreement. We had very 
productive talks with our Republican colleagues today; but, of course, 
we have a lot of work to do left. We are going to keep working.
  I yield the floor.


                       Vote on Conference Report

  The PRESIDING OFFICER. Under the previous order, all postcloture time 
has expired.
  The question is on agreeing to the adoption of the conference report 
to accompany H.R. 2670.
  Mr. CARDIN. I ask for the yeas and nays.

[[Page S5956]]

  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  The clerk will call the roll.
  The senior assistant legislative clerk called the roll.
  The result was announced--yeas 87, nays 13, as follows:

                      [Rollcall Vote No. 343 Leg.]

                                YEAS--87

     Baldwin
     Barrasso
     Bennet
     Blackburn
     Blumenthal
     Boozman
     Britt
     Brown
     Budd
     Butler
     Cantwell
     Capito
     Cardin
     Carper
     Casey
     Cassidy
     Collins
     Coons
     Cornyn
     Cortez Masto
     Cotton
     Cramer
     Crapo
     Cruz
     Daines
     Duckworth
     Durbin
     Ernst
     Fetterman
     Fischer
     Gillibrand
     Graham
     Grassley
     Hagerty
     Hassan
     Heinrich
     Hickenlooper
     Hirono
     Hoeven
     Hyde-Smith
     Johnson
     Kaine
     Kelly
     Kennedy
     King
     Klobuchar
     Lankford
     Lujan
     Manchin
     Marshall
     McConnell
     Menendez
     Moran
     Mullin
     Murkowski
     Murphy
     Murray
     Ossoff
     Padilla
     Peters
     Reed
     Ricketts
     Risch
     Romney
     Rosen
     Rounds
     Rubio
     Schatz
     Schmitt
     Schumer
     Scott (FL)
     Scott (SC)
     Shaheen
     Sinema
     Smith
     Stabenow
     Sullivan
     Tester
     Thune
     Tillis
     Tuberville
     Van Hollen
     Warner
     Warnock
     Whitehouse
     Wicker
     Young

                                NAYS--13

     Booker
     Braun
     Hawley
     Lee
     Lummis
     Markey
     Merkley
     Paul
     Sanders
     Vance
     Warren
     Welch
     Wyden
  The conference report was agreed to.
  The PRESIDING OFFICER (Ms. Hassan). The majority leader.
  Mr. SCHUMER. I ask unanimous consent that the cloture motions filed 
during Monday's session ripen at 12 noon tomorrow, Tuesday, December 
14.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.

                          ____________________