[Congressional Record (Bound Edition), Volume 158 (2012), Part 6]
[Senate]
[Pages 8801-8802]
[From the U.S. Government Publishing Office, www.gpo.gov]




                 EXTENDING FISA AMENDMENTS ACT OF 2008

  Mr. WYDEN. Mr. President, the Select Committee on Intelligence has 
just reported a bill that would extend the FISA Amendments Act of 2008 
for 5 more years. I voted against this extension in the Intelligence 
Committee's markup because I believe that Congress does not have enough 
information about this law's impact on the privacy of law-abiding 
American citizens, and because I am concerned about a loophole in the 
law that could allow the government to effectively conduct warrantless 
searches for Americans' communications. Consistent with my own 
longstanding policy and Senate rules, I am announcing with this 
statement for the Congressional Record that it is my intention to 
object to any request to pass this bill by unanimous consent.
  I will also explain my reasoning a bit further, in case it is helpful 
to any colleagues who are less familiar with this issue. Over a decade 
ago the intelligence community identified a problem: surveillance laws 
designed to protect the privacy of people inside the United States were 
sometimes making it hard to collect the communications of people 
outside the United States. The Bush administration's solution to this 
problem was to set up a warrantless wiretapping program, which operated 
in secret for a number of years. When this program became public 
several years ago many Americans--myself included--were shocked and 
appalled. Many Members of Congress denounced the Bush administration 
for this illegal and unconstitutional act.
  However, Members of Congress also wanted to address the original 
problem that had been identified, so in 2008 Congress passed a law 
modifying the Foreign Intelligence Surveillance Act, or FISA. The 
purpose of this 2008 legislation was to give the government new 
authorities to collect the communications of people who are believed to 
be foreigners outside the United States, while still preserving the 
privacy of people inside the United States.
  Specifically, the central provision in the FISA Amendments Act of 
2008 added a new section to the original FISA statute, now known as 
section 702. As I said, section 702 was designed to give the government 
new authorities to collect the communications of people who are 
reasonably believed to be foreigners outside the United States. Because 
section 702 does not involve obtaining individual warrants, it contains 
language specifically intended to limit the government's ability to use 
these new authorities to deliberately spy on American citizens.
  The bill contained an expiration date of December 2012, and the 
purpose of this expiration date was to force Members of Congress to 
come back in a few years and examine whether these new authorities had 
been interpreted and implemented as intended. Before Congress votes 
this year to renew these authorities it is important to understand how 
they are working in practice, so that Members of Congress can decide 
whether the law needs to be modified or reformed.
  In particular, it is important for Congress to better understand how 
many people inside the United States have had their communications 
collected or reviewed under the authorities granted by the FISA 
Amendments Act. If only a handful of people inside the United States 
have been surveilled in this manner, then that would indicate that 
Americans' privacy is being protected. On the other hand, if a large 
number of people inside the United States have had their communications 
collected or reviewed because of this law, then that would suggest that 
protections for Americans' privacy need to be strengthened.
  Unfortunately, while Senator Udall of Colorado and I have sought 
repeatedly to gain an understanding of how many Americans have had 
their phone calls or e-mails collected and reviewed under this statute, 
we have not been able to obtain even a rough estimate of this number.
  The Office of the Director of National Intelligence told the two of 
us in July 2011 that ``it is not reasonably possible to identify the 
number of people located in the United States whose communications may 
have been reviewed'' under the FISA Amendments Act. I am prepared to 
accept that it might be difficult to come up with an exact count of 
this number, but it is hard for me to believe that it is impossible to 
even estimate it.
  During the committee's markup of this bill Senator Udall and I 
offered an amendment that would have directed the inspectors general of 
the intelligence community and the Department of Justice to produce an 
estimate of how many Americans have had their communications collected 
under section 702. Our amendment would have permitted the inspectors 
general to come up with a rough estimate of this number, using whatever 
analytical techniques they deemed appropriate. We are disappointed that 
this amendment was voted down by the committee, but we will continue 
our efforts to obtain this information.
  I am concerned, of course, that if no one has even estimated how many 
Americans have had their communications collected under the FISA 
Amendments Act, then it is possible that this number could be quite 
large. Since all of the communications collected by the government 
under section 702 are collected without individual warrants, I believe 
that there should be clear rules prohibiting the government from 
searching through these communications in an effort to find the phone 
calls or e-mails of a particular American, unless the government has 
obtained a warrant or emergency authorization permitting surveillance 
of that American.
  Section 702, as it is currently written, does not contain adequate 
protections against warrantless ``back door'' searches of this nature--
even though they are the very thing that many people thought the FISA 
Amendments Act was intended to prevent. Senator Udall and I offered an 
amendment during the committee's markup of this bill that would have 
clarified the law to prohibit searching through communications 
collected under section 702 in an effort to find a particular 
American's communications. Our amendment included exceptions for 
searches that involved a warrant or an emergency authorization, as well 
as for searches for the phone calls or e-mails of people who are 
believed to be in danger or who consent to the search. I am 
disappointed that this amendment was also voted down by the committee, 
but I will continue to work with my colleagues to find a way to close 
this loophole before the FISA Amendments Act is extended.
  I recognize that the collection that has taken place under the FISA 
Amendments Act has produced some useful intelligence, so my preference 
would be to enact a short-term reauthorization to give Congress time to 
get more information about the impact of this law on Americans' privacy 
rights and consider possible modifications. However, I believe that 
protections against warrantless searches for Americans' communications 
should be added to the law immediately.
  An obvious question that I have not answered here is whether any 
warrantless searches for Americans' communications have already taken 
place. I am not suggesting that any warrantless searches have or have 
not occurred, because Senate and committee rules regarding classified 
information generally prohibit me from discussing what intelligence 
agencies are actually doing or not doing. However, I believe that we 
have an obligation as elected legislators to discuss what these 
agencies should or should not be doing, and it is my hope that a 
majority of my Senate colleagues will agree with that searching for 
Americans' phone calls and e-mails without a warrant is something that 
these agencies should not do.

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