Electronic Surveillance Modernization Act

ELECTRONIC SURVEILLANCE MODERNIZATION ACT -- (Extensions of Remarks - September 29, 2006)

* Mr. UDALL of Colorado. Mr. Speaker, I support changing current law on electronic surveillance to remove obstacles to vigorously fighting terrorism, and I believe we can do so in a way that protects the constitutional rights of our citizens. This bill attempts to strike the right balance, but it has serious flaws that could and should have been corrected--and because of those flaws, I cannot support it as it stands.

* I believe the American people should know that on this very important subject, for the most part, we are being asked to legislate in the dark. It is only because of leaks to the news media that we became aware that after the terrorist attacks of 2001 the administration decided not to follow the procedures of the Foreign Intelligence Surveillance Act, FISA, with regard to a new, wide-ranging surveillance program.

* Since it became public, that decision has been controversial and has been challenged in the courts, but the administration has consistently maintained that this surveillance program is lawful--although it has been less consistent in its reasons for reaching that conclusion.

* Like many of our colleagues, I have found some of their arguments strained and far from fully convincing.

* Nonetheless, I do think it makes sense to further revise FISA to reflect both the latest technology and the realities of the current threats to our country. And events since the revelation of the administration's decision not to comply with FISA have made it clear that there is a definite need for better oversight by Congress, which can occur only if we require more reporting by the executive branch.

* So, I react favorably to some points made by this bill's author and supporters in support of the way it addresses both of these concerns. They point to provisions described as designed to update FISA's definition of electronic surveillance to make it technology neutral as well as those they say are intended to enhance congressional oversight not only of electronic surveillance, but also of U.S. intelligence and intelligence-related activities generally.

* While these positive aspects of the bill are encouraging, they are unfortunately overwhelmed by the bill's more serious defects.

* Overall, this legislation goes very far toward making warrantless surveillance of communications here in the United States the rule rather than the exception and toward allowing the executive branch to conduct electronic surveillance of telephone calls and e-mail in the United States without adequate, meaningful oversight.

* The bill makes sweeping alterations to the current definition of ``electronic surveillance'' and how to define an ``agent of a foreign power.'' The bill redefines the term ``surveillance device'' in a way that would allow the government to conduct unregulated data retention and data-mining operations on all the information collected through the warrantless surveillance that this bill authorizes.

* My concerns about these provisions are shared by others, including former Representative (and former House Republican leader) Dick Armey, as expressed in a September 26th letter in which he says:

The explosion of computers, cameras, location-sensors, wireless communication, biometrics, and other technologies is making it much easier to track, store, and analyze information about individuals' activities. Unfortunately, the legislation may promote additional government intrusions into individual lives by exempting such data mining from requiring court orders ..... It is not evident that such legislation will necessarily prevent the next terrorist attack. But ..... failure is unlikely to lead to a halt in federal data mining. Instead, it will probably just spur the government into an ever-more furious effort to collect ever-greater amounts of personal information on ever-more people in a vain effort to make the concept work. We would then have the worst of both worlds: poor security and a vast increase in the information about individuals collected by the government that would destroy Americans' privacy and threaten our freedom.

I also am concerned that while the bill would explicitly allow essentially unlimited surveillance in the event of an ``armed attack'' a ``terrorist attack,'' or an ``imminent threat of attack,'' those terms are not adequately defined. I think this means that there is an unacceptably large chance that these sweeping exceptions would give the Executive Branch unlimited authority to conduct surveillance whenever and however it prefers.

* The alternative also would have made clear that foreign-to-foreign communications are outside of FISA and don't require a court order, and would have provided that a FISA order for electronic surveillance shall continue to be in effect for the authorized period even if the person leaves the United States. It also would have removed redundant requirements in the application process and made other changes to streamline the FISA process, including adding judges to the FISA court while authorizing that court, the Department of Justice, the FBI, and the NSA to hire more staff for the preparation and consideration of FISA applications and orders. And it would have made clear that in addition to a ``declaration of war by the Congress,'' an ``authorization for the use of military force, AUMF,'' can also trigger the FISA ``wartime exception'' for purposes of allowing 15 days of warrantless surveillance.

* I think that alternative had the best features of this bill without its defects. Unfortunately, it was not adopted and those changes were not made.

* As a result, I do not think this bill as it stands should be approved. But while I cannot support it tonight, I recognize that it is not being sent to the president for signing into law. Instead, if it passed tonight it will go to the Senate, where it will be subject to further debate and revision.

* My hope is that if it does pass tonight, and the legislative process continues, the result of that process will be a revised version that will deserve enactment.

http://thomas.loc.gov/