[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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