[Congressional Record Volume 170, Number 66 (Tuesday, April 16, 2024)]
[Senate]
[Pages S2760-S2761]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                 Foreign Intelligence Surveillance Act

  Mr. CORNYN. Mr. President, I would like to speak about the most 
important law that most Americans have never heard of, and that is 
section 702 of the Foreign Intelligence Surveillance Act. Last week, 
the House of Representatives passed legislation to reauthorize this 
important law before it expires at the end of this week.
  FISA, as it is known--the Foreign Intelligence Surveillance Act--and 
section 702 in particular, is one of the most important and 
consequential laws we use to keep our country safe from adversaries 
overseas.
  Congress enacted section 702 in 2008 in response to the threats posed 
by terrorist groups in the wake of 9/11. It tore down some of the walls 
that prevented the sharing of information that could be used to keep 
our country safe, and there is no question that it has been a success.
  Information acquired through section 702 has helped to identify 
threats against U.S. troops and to thwart planned terrorist attacks 
abroad and here at home. It has enabled the Federal Government to stop 
components of weapons of mass destruction from reaching foreign actors. 
It has also helped disrupt our adversaries' efforts to recruit spies on 
American soil and send their operatives to the United States. It has 
helped to understand and combat fentanyl trafficking, identify foreign 
ransomware attacks, like the Colonial Pipeline ransomware attack, and 
uncover war crimes and gruesome atrocities in Ukraine.
  For virtually every national security threat that America faces, 
section 702 is an invaluable asset. There is a reason why it is known 
as the crown jewel of America's intelligence gathering capabilities.
  The President is briefed daily, in something called the President's 
Daily Brief, on these intelligence threats that are collected for the 
President's briefing, as I said, on a daily basis. A full 60 percent of 
the information contained in the President's daily classified 
intelligence brief is derived from section 702 of the Foreign 
Intelligence Surveillance Act.
  Everyone knows that this authority has not been without controversy. 
In recent years, the public has learned about extremely concerning 
misuses of this authority that go far beyond what Congress has 
authorized. But I want to make clear that the targeting of American 
citizens here in the United States is expressly prohibited under 702, 
so any targeting of an American citizen is illegal and should be 
prosecuted to the fullest extent of the law.
  Just to be clear, this authority grants the intelligence community--
by that I mean the CIA, the NSA, the DIA, the FBI--it grants authority 
to the Department of Justice and our intelligence community to get 
intelligence on foreigners located outside of the United States--in 
other words, if it is foreign nationals inside the United States, you 
cannot use section 702--but more importantly, foreigners outside of the 
United States who are deemed to be a threat to our national security, 
agents of a foreign power, for example. It cannot be lawfully used to 
target U.S. citizens, whether on American soil or elsewhere.
  But this is where the issue gets a little bit thorny, and sometimes 
there is misunderstanding about exactly how this works. So let me go 
through some of the details. Where this becomes a little more confused 
is when there is incidental collection of U.S. persons. For example, if 
you are targeting a foreigner overseas and they are communicating with 
a U.S. person in the United States, that could be a citizen, that could 
be a lawful permanent resident. Well, if it is a lawful communication, 
lawful 702 targeting of the foreign national, and they are talking to a 
U.S. person, invariably there is going to be information--known as 
incidental collection--involving the communication with that U.S. 
person. In other words, both sides of the conversation will be revealed 
in that lawful targeting of a foreign person overseas.
  Here is an example: Let's say the intelligence community is 
monitoring the communications of a Hamas terrorist in Gaza who is 
believed to pose a danger to our national security. He is not an 
American, and he is not on U.S. soil, but he is using U.S.-based 
communication networks. Let's say in this example that one of the 
people the Hamas terrorist is communicating with is an American on U.S. 
soil. Even though the American is not a target of the data collection, 
his side of the conversation would be visible because he is the one 
communicating with this foreign target.
  But let me be clear. The intelligence community cannot target anyone 
they believed to be a U.S. person, nor can they target a foreigner with 
the pretext of getting American citizens' data. For that, you need a 
warrant. You need to go to court and show probable cause because that 
is a constitutional right granted to Americans under the Fourth 
Amendment to the U.S. Constitution.
  The Fourth Amendment of the Constitution protects our people from 
unreasonable searches and seizures by the government, and an unchecked 
surveillance authority would directly violate that right. That is why 
we have guardrails. That is why we have protections to minimize the 
chances of that happening.
  I know there has been some confusion. Some of it is from a 
misunderstanding. Some of it is people, frankly, just misrepresenting 
exactly what this authority does and does not do. But section 702 does 
not violate the Fourth Amendment. Every court that has considered the 
lawfulness of the 702 program has found that it complies with the 
Fourth Amendment. So when people stand up and say ``Well, section 702 
allows the government to spy on Americans,'' that is, frankly, not 
true. If they say it violates the Fourth Amendment, well, you have at 
least three courts that have considered the issue and they have said 
no, it doesn't. So they need to come up with another argument.

  To be clear, this is very targeted, very narrow surveillance 
authority. As a matter of fact, under the reforms passed in the House 
bill, there are very few circumstances under which the FBI, for 
example, can exploit or query the 702 information.
  So once the information is lawfully collected--targeting a foreign 
national overseas; that is lawfully collected--it is in a database 
which can then be queried by the FBI, for example, but there are very 
limited circumstances where that can happen. They can only search that 
database if they believe the query or question would return foreign 
intelligence information or evidence of a crime. The Agency does not 
have carte blanche authority to probe or go fishing in 702 information.
  Unfortunately, there have been some mistakes made by the FBI due to 
the lack of guardrails and reforms that are in the current bill passed 
by the House of Representatives. I applaud the House for passing 
important reforms that will minimize the chances of this inadvertent 
collection of U.S. persons' information, because it is a violation of 
the law.
  In response to some of these reports of inadvertent collection of 
U.S. persons' information, in 2021, FBI Director

[[Page S2761]]

Chris Wray instituted significant reforms to prevent inadvertent 
queries and improve compliance. Virtually all of those reforms, which 
have been enormously successful, have now been incorporated in the 
statute that the House passed last week.
  Here is an example: When FBI personnel conduct a query now, rather 
than having access to this database of lawfully collected 702 
information, they are required to opt-in to include that information. 
They have to affirmatively choose to search that database. Previously, 
that was not the case. Section 702 data was included in every search by 
default, and most of the time, it was completely unnecessary.
  Multiple reviews have shown that these reforms have made a dramatic 
difference for the better. Since 2021, since these reforms have been 
put in place, the total number of U.S. person queries have decreased by 
98 percent. That is a dramatic improvement. It is not 100 percent. It 
is not perfect. We still have work to do. But a 98-percent improvement 
strikes me as pretty dramatic. On top of that, DOJ conducted a review 
last year and found that 98 percent of the FBI's 702 queries were fully 
compliant with these requirements.
  This has been reviewed by the Foreign Intelligence Surveillance 
Court, which is three members of the Federal judiciary appointed by the 
Chief Justice of the United States.
  These reforms implemented by the FBI voluntarily in 2021 and now 
included in the House reform bill are working, and that is why it is so 
important that we should codify those changes. We need to make clear 
that these heightened standards are not simply Agency policy but the 
law, and that is exactly what the House FISA bill does. It turns the 
FBI's 702 reforms into law to ensure that the Agency's 702 query 
policies cannot be neglected or loosened in the future. Once they 
become the law of the land, even if the FBI were to change its policy, 
it would be inconsistent with that law and be illegal.
  The House bill also extends this authority for a period of 2 years, 
so our intelligence community can continue to identify threats to our 
national security and prevent them from materializing.
  When we talked about 702 several years ago, FBI Director Chris Wray 
said, ``The fact that we have not suffered another 9/11-scale attack is 
not just luck.'' He noted that it is a product of diligence, teamwork, 
information sharing, dot-connecting, and much of that dot-connecting is 
made possible by 702.
  So I appreciate Speaker Johnson in the Republican-led House for 
taking action on this bill before this critical authority expires at 
the end of the week, and I look forward to voting for it in the U.S. 
Senate.
  I yield the floor.
  Mr. CORNYN. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  The PRESIDING OFFICER. The Senator from Texas.
  Mr. CORNYN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.