[Congressional Record Volume 170, Number 69 (Friday, April 19, 2024)]
[Senate]
[Pages S2929-S2930]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                                  FISA

  Mr. VAN HOLLEN. Mr. President, our intelligence community relies on a 
range of tools to protect Americans from threats originating from 
abroad. One of them is section 702 of the Foreign Intelligence 
Surveillance Act--FISA--which is used to gather information related to 
foreign individuals located outside of the United States and has 
produced valuable information to help uncover terrorist plots and 
thwart attacks. I strongly support maintaining that important 
capability. At the same time, I have long been concerned that, without 
adequate safeguards, section 702 can be abused in a way that violates 
Americans' Fourth Amendment rights and unnecessarily intrudes on their 
privacy, including for ``backdoor'' searches. That is why I have long 
pushed for guardrails to prevent governmental overreach and abuse.
  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 ``backdoor'' search queries of section 702 
communications data targeting U.S. persons per quarter in 2022. 
Moreover, over the course of 2022, government data shows that the FBI's 
rate of compliance with the FISA Court-approved querying standard has 
risen to approximately 98 percent, which means the rate of violations 
is 2 percent. While that may sound like an impressive compliance rate, 
it still amounts to 4,000 violations each year.
  I acknowledge and appreciate that the bill before us includes some 
reforms to strengthen privacy protections for Americans. It codifies 
newly implemented internal practices that the FBI has adopted to 
address many of the abuses that have arisen. However, I believe that 
those protections can and should be further strengthened. The major 
issue involves those occasions in which the FBI or other U.S. 
Government Agencies determine that a foreign target is communicating 
with an American citizen. The Privacy and Civil Liberties Oversight 
Board--PCLOB--found that the majority of the FBI's U.S. person queries 
of section 702 information that are conducted yield little or no 
results. In 2022, the PCLOB found that the FBI accessed content 
following U.S. person queries only 1.58 percent of the time. In these 
few cases, the question arises as to whether and under what 
circumstances the U.S. Government should be able to review the contents 
of the communication of an American citizen. Senator Durbin offered an 
amendment, which I supported, to require the FBI to obtain a warrant 
prior to viewing the content of

[[Page S2930]]

Americans' communications, subject to very important exceptions when 
exigent circumstances exist, when the U.S. person consents, and for 
certain cybersecurity imperatives. I am disappointed that this 
amendment was not adopted.
  Another way to obtain the benefits of section 702 foreign 
intelligence collection without weakening the Fourth Amendment and 
privacy protections of Americans is to ensure that those interests are 
adequately represented and heard before the FISA Court. In 2015, 
Congress established amici who can advise the court, if requested, on 
new and significant issues. The involvement of amici has improved the 
FISA Court process, but their role could be strengthened. That is why I 
supported the Lee-Welch amendment, which requires amici participation 
in additional cases that have the potential to create precedent and 
allows amici to raise novel or significant privacy or civil liberties 
issue, rather than waiting to be requested by the FISC Court. The 
failure to adopt this amendment misses an opportunity to strengthen 
advocacy for privacy and civil liberties in FISA Court proceedings.
  I am also deeply concerned by a provision, added at the eleventh hour 
in the House to greatly expand the type of providers that the U.S. 
Government could compel to produce information under section 702. I 
understand that this provision was added after the Foreign Intelligence 
Surveillance Court--FISC--ruled that the government could not use 
section 702 to compel a data center's compliance with an order to 
produce communications. The decision was predicated on whether a data 
center qualified as an ``electronic communications service provider'' 
under the law. This new definition, while intended to clarify the term 
to account for changing technology, broadly includes ``any other 
service provider who has access to equipment that is being or may be 
used to transmit or store wire or electronic communications.'' While I 
accept the representations from the Attorney General and others that 
this language is not intended to open the door to requiring a slew of 
service providers to comply with government demands to intercept 
communications, its plain language is very broad. It would, for 
example, require a company that installs, maintains, or repairs Wi-Fi 
or other communications systems to provide communications under section 
702 to the government, all while being barred from telling anyone about 
the surveillance they helped conduct. While I appreciate the 
administration's commitment to apply this new definition exclusively to 
cover the type of service provider at issue in the litigation before 
the FISC, I believe there are ways to more narrowly achieve the 
administration's goal without providing the open-ended authority that 
is currently included in the bill. That is why I support Senator 
Wyden's amendment to remove the new definition to give us time to 
tailor the language to meet the administration's purposes. I am 
disappointed that the Wyden amendment did not pass. The Senate should 
not be stampeded into passing sweeping new authorities with the 
assurance that it will be ``fixed'' later. We should fix it now.
  Another troubling new provision added in the House that should be 
remedied here in the Senate is the expansion of searches of the section 
702 database for individuals traveling to the United States. Under 
current practice, in addition to standard vetting to determine national 
security threats, individuals seeking visas to work or travel in the 
U.S. for the first time can be subject to terrorism-related queries of 
the database. The House bill allows for searches of a potentially far 
broader group of travelers--including existing visa holders returning 
to the U.S. from abroad--and a broader variety of searches. Again, with 
sufficient time, I believe we could meet the goal of effectively 
vetting visitors to the United States without authorizing powers that 
could easily be abused.
  Section 702, while critical to our intelligence capabilities, must be 
reformed to protect constitutional and privacy rights. We have time to 
resolve these issues. The administration contends that without the 
immediate reauthorization of section 702 by midnight on April 19, 2024, 
the authority will lapse. However, we know that the Department of 
Justice obtained a renewed certification from the FISC, extending the 
authorization of active section 702 surveillance orders until April 
2025. Section 404 of the FISA Amendments Act of 2008 makes clear that 
such certifications remain valid until their expiration.
  While I agree that we need to congressionally reauthorize this 
authority, I am concerned that we are short-circuiting robust, 
bipartisan discussions in Congress on needed reforms and to correct 
problems in the House-passed bill. When dealing with matters of such 
import, we should not be pressured by an artificial deadline into 
passing a flawed law. Therefore, while I support the underlying 
authority in section 702, I voted against this legislation tonight 
because more must be done to protect Americans from its possible 
misuse.

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