[Congressional Record (Bound Edition), Volume 162 (2016), Part 7]
[Senate]
[Pages 9366-9367]
[From the U.S. Government Publishing Office, www.gpo.gov]




                            USA FREEDOM ACT

  Mr. WYDEN. Mr. President, in the aftermath of the horrific tragedy in 
Orlando, Americans are understandably concerned about whether law 
enforcement and intelligence officials have the tools they need to keep 
our people safe. I share these concerns and have for quite some time.
  In 2013, I proposed that the government be authorized to obtain 
phone, email, and other records immediately in emergency situations and 
then after the fact come back for court review. That proposal I made in 
2013 became law as part of the USA FREEDOM Act--it is section 102 of 
the USA FREEDOM Act--and as of today, that legislation I authored gives 
the FBI more authority to move immediately when they believe it is 
essential to protect the safety and well-being of Americans and our 
families.
  I don't take a backseat to anybody when it comes to supporting 
efforts that are going to do everything possible to make Americans 
safer in their communities. So right now--and this is so often the case 
after a tragedy--when Americans want to be safer and they want their 
liberties, all too often proposals are advanced that in so many 
instances don't do much of either.
  It is for that reason that I have come to the floor to express my 
concern about the sweeping surveillance amendment that was proposed 
this morning by the senior Senator from Texas. In my view, it is 
important for colleagues to see that this proposal would dramatically 
and unnecessarily expand the government's ability to conduct 
surveillance of Americans without court oversight.
  In my judgment, it would not make our country any safer. The real 
implications are that it could significantly undermine the 
constitutional rights of law-abiding Americans, largely to save some 
paperwork for law enforcement officials.
  As was described on the Senate floor this morning, this amendment 
would authorize individual FBI field offices to demand Americans' email 
and Internet records simply by issuing what is called a national 
security letter, which means there really is no court oversight 
whatsoever.
  This authority currently exists for phone records, and law 
enforcement officials have repeatedly suggested that it would be 
convenient for email and Internet records to be collected in the same 
way. The FBI has not suggested that they are currently unable to obtain 
these records in counterterror investigations. Law enforcement 
officials have simply been arguing that it would be more convenient to 
operate without judicial oversight. I find this position very troubling 
because I don't see anything in the writings of the Founding Fathers 
that says convenience alone should justify a dramatic erosion of the 
constitutional rights of law-abiding Americans.
  It is important to understand that this sweeping expansion of 
surveillance authorities is not necessary. If FBI officials have reason 
to suspect an individual is connected to terrorism or espionage, they 
already have the ability to access that person's email and Internet 
records by simply obtaining an order in the Foreign Intelligence 
Surveillance Court. These orders can be issued in secret and require 
relatively little evidence. The FBI just needs to assert that the 
records are ``relevant to an investigation,'' and that is not difficult 
to do. But requiring the approval of an independent judge provides an 
important chapter against the abuse or misuse of this authority. By 
contrast, national security letters are not reviewed by a judge unless 
a company that receives one attempts to challenge it.
  As I indicated earlier this afternoon, I appreciate the FBI's 
interest in obtaining records about potential suspects quickly, but my 
view is that Foreign Intelligence Surveillance Court judges in the 
typical situation are very capable of reviewing and approving requests 
for court orders in a timely fashion, and that is why I made mention of 
it.
  If the government thinks that there is an emergency situation and 
that time is so critical, the government can use that section of the 
USA FREEDOM Act that I authored, Section 102, to obtain records 
immediately in an emergency situation and then go seek court review 
after the fact.
  As I indicated, I have been supportive of this for quite some time, 
but I think giving the government the authority to move in emergency 
situations is very different from giving the government substantial new 
surveillance authority just because some officials don't like doing 
paperwork. If the FBI's own process for reviewing orders is too slow, 
then the appropriate solution is administrative reforms, not a major 
expansion of government surveillance authorities.
  While this amendment would not apply to the text of emails, it would 
allow the FBI a wide variety of information, including records of whom 
individuals exchange emails with and when, as well as individuals' log-
in history, IP addresses, and Internet browsing history. This sort of 
surveillance can clearly reveal an extensive amount of information 
about individual Americans. Our Founding Fathers rightly argued that 
these kinds of intrusive searchs ought to be approved by independent 
judges.
  At this point, I believe it is worth noting that President George W. 
Bush's administration reached the same conclusion that I have described 
this afternoon. In November of 2008, the Justice Department's Office of 
Legal Counsel advised the FBI that national security letters could only 
be used to obtain certain types of records, and this list did not 
include electronic communication records. The FBI has, unfortunately, 
not adhered to this guidance and has at times continued to issue 
national security letters for electronic communications records. A 
number of companies that have received these overly broad national 
security letters have rightfully challenged them, as I have indicated, 
as improper. Broadening the national security letter statute to include 
electronic communication transaction records would be a significant 
expansion of warrantless surveillance authority.
  Unfortunately, the government's track record with its existing 
national security letter authorities includes a

[[Page 9367]]

substantial amount of abuse and misuse. These problems were extensively 
documented by the Justice Department's inspector general in 2007, 2008, 
2010, and 2014. In my judgment, it would be reckless to expand this 
particular surveillance authority when the government has so frequently 
failed to use its existing authorities responsibly.
  In 2013, President Obama's surveillance review group looked at the 
national security letter statute. This group included a number of 
distinguished national security leaders, including former White House 
counterterrorism adviser Richard Clarke and former Acting CIA Director 
Mike Morell. They determined--and I think what is so noteworthy is that 
at a time when the President assembled practically an NBA All-Star team 
of counterterror leaders, this group determined that national security 
letter authority ought to be narrowed, not expanded. They were making a 
judgment to counter to the senior Senator from Texas, and they felt 
they ought to go the other way and be more cautious about how it is 
used.
  These leading national security officials, the names of whom I have 
just given, stated in their report that national security letters have 
been, in their view, highly controversial and noted that there have 
been ``serious compliance issues on the part of the government.'' They 
concluded the following: ``For all the well-established reasons for 
requiring neutral and detached judges to decide when government 
investigators may invade an individual's privacy''--their words and not 
mine--``there is a strong argument that [national security letters] 
should not be issued by the FBI.''
  National security letters was what the description of the issue was 
all about. In the judgment of these experts, the government should seek 
the approval of a judge the way our Founding Fathers intended.
  I want it understood that I would strongly oppose the surveillance 
amendment filed this morning. My view is that it would erode our core 
constitutional rights without making our country safer.
  All over the country right now, Americans are asking what can be done 
to make our country safer. This morning, for example, we had the CIA 
Director, Mr. Brennan, in the Intelligence Committee, and I pointed out 
that one of the things that help Americans be as safe as possible is 
strong encryption for their smartphones. Those smartphones have 
people's different transactions, such as medical and financial 
information. Their whole life is in those smartphones. If you weaken 
strong encryption and require companies--as several of our colleagues 
want to do--to build back doors into these digital products, Americans 
are going to be less safe.
  For example, a number of the smartphones have a location tracker so 
parents can keep tabs on their youngster. Well, if you weaken 
encryption and weaken the location tracker, you are pretty much giving 
a gift to pedophiles because it will be easy to track youngsters as a 
result of weakening encryption.
  We had a discussion about it this morning. The comment I was 
concerned about in particular this morning was when I said ``Hey, if we 
weaken encryption in the United States, the reality is that terrorists, 
hackers, and others will go overseas, where there are hundreds of 
products with strong encryption,'' it was the view of the CIA Director 
that that was ``theoretical.'' So I was forced to correct that later in 
the course of the day to say that some of the leading experts in cyber 
security said that this is not theoretical.
  The reality is that there are hundreds of products overseas with 
strong encryption. So think about that one. What we would be doing if 
we weakened encryption is we would be adopting a policy that would 
leave our people less secure and their liberties more at risk right at 
the time when they are saying, after the horrific tragedy in Orlando, 
that they want better policies to promote their safety and make sure 
their liberties are kept.
  This is a debate we are going to have in several forms. We will have 
them in committee rooms and on the floor of the Senate. I just want it 
understood that the reason I am opposing what the senior Senator from 
Texas talked about today is that I think it flies right in the face of 
what I have described. It does nothing to make us safer, and it puts 
our liberties at risk, much as the distinguished panel that was put 
together by the President--all these outstanding counterterror 
officials--said when they expressed concern about the whole future of 
national security letters.
  There is a way to do this right, and I would submit that is what we 
did in Section 102 of the USA FREEDOM Act. It was something I had 
talked about with the President on several occasions. I am willing to 
say what I said but not what the President said.
  I have repeatedly said to the government that if the government 
doesn't have enough authority in emergency situations to protect the 
American people, I will use my ability as a senior member of the 
Intelligence Committee to make sure they have that authority. We did 
that in the USA FREEDOM Act. The government can move immediately to 
collect phone and email records and then come back later to go through 
the court review process. That is the kind of model we ought to use, 
not what we heard about this morning from the senior Senator from Texas 
that would expand government surveillance authority, put our liberties 
at risk, and not make our country safer.
  I am sure this will be a topic of extensive discussion on the Senate 
floor next week. I just wanted to take this opportunity to outline my 
views on the topic.
  With that, I yield the floor.
  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. COONS. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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