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Public Statements

Ending Bulk Collection of Phone Records

Floor Speech

By:
Date:
Location: Washington, DC

Mr. UDALL of Colorado. I welcome this opportunity to speak on the floor about the National Security Agency surveillance programs, their effectiveness, and their future.

I am proud to be joined by my colleague from Oregon, Senator Wyden, who will comment as well after my remarks. He has been a stalwart leader on these issues, and it has been my honor to join forces with him and to draw attention to this very important discussion President Obama recently welcomed.

He called for a public debate on finding the right balance between national security and privacy in the context of NSA's surveillance programs.

His call is long overdue, and it is an opportunity we should not squander. As I have said time and time again to Coloradans and as they have said back to me as well, we owe it to the American people to have an open, transparent debate about the limits of the Federal Government's surveillance powers and how we reconcile the need to keep our families safe while still respecting our hard-won constitutional rights to privacy.

Although I would have preferred that this debate would have been kicked off by more transparent actions by the White House instead of by unauthorized leaks, we are nonetheless presented with a unique opportunity--an opportunity to finally have an open dialog about the limits of our government's surveillance powers, particularly those relating to the vast dragnet of Americans' phone records under section 215 of the PATRIOT Act.

This is a debate in which I feel privileged to take part. It is a debate that Senator Wyden has been a part of since before I was elected to the Congress and one that I have been engaged in for a number of years now.

I want to be clear. I have acted in every possible way that I could within the confines of our rules that protect classified information to oppose these practices and bring them to light for the American people. I have fought against overly intrusive sections of the PATRIOT Act and the FISA Amendments Act and registered objections repeatedly with the administration. I believe these efforts are critical for protecting our privacy and also ensuring our national security.

I serve on both the Senate Armed Services Committee and the Senate Intelligence Committee, and in those assignments I focus every day on keeping Americans safe, at home and abroad. I recognize that we still live in a world where terrorism is a serious threat to our country, to our economy, and to American lives. Make no mistake, our government needs the appropriate surveillance and antiterrorism tools to combat the serious threats to our Nation. But it is up to the White House and Congress to ensure that these tools strike the right balance between keeping us safe and protecting our constitutional right to privacy. This is a balance I know we can achieve, but, in my view, the PATRIOT Act's bulk phone records collection program does not achieve that balance. That is why I am here on the Senate floor with my colleague Senator Wyden to call for an end to the bulk phone records collection program, as we know it today.

Two years ago we were here on the Senate floor considering extending certain PATRIOT Act provisions. At that time I argued that the sweeping surveillance powers we were debating did not contain sufficient safeguards to preserve the privacy rights of Americans. In particular, I argued that the PATRIOT Act's business records provision--or section 215--permits the collection of records on law-abiding Americans who have no connection to terrorism or espionage. As I said at that time, we ought to be able to at least agree that an investigation under PATRIOT Act powers should have a terrorist- or espionage-related focus.

We all agree that the intelligence community needs effective tools to combat terrorism, but we must provide those tools in a way that also protects the constitutional freedoms of our people and that lives up to the standard of transparency our democracy demands. The Bill of Rights is the strongest document we have. Another way to put it: It is the biggest, baddest weapon we have. We need to stand with the Bill of Rights and in this case the Fourth Amendment.

Following Mr. Snowden's actions and the subsequent declassification of information concerning the NSA's surveillance programs, Americans in recent weeks are coming to understand what it means when section 215 of the PATRIOT Act says the government can obtain ``any tangible thing'' relevant to a national security investigation. That is the Foreign Intelligence Surveillance Court's way of saying that section 215 permits the collection of millions of Americans' phone records on a daily, ongoing basis. As a member of the Senate Intelligence Committee, I have repeatedly expressed concern that the FISA Court's secret interpretation of this provision of the PATRIOT Act is at odds with the plain meaning of the law. This secrecy has prevented Americans from understanding how this law is being implemented in their name.

In my view and the view of many Americans, this large-scale collection of information by the government has very significant privacy implications for all of us. What do I mean by that? Information about our phone calls--or, as it is known, ``metadata''--may sound pretty simple and innocuous, but I believe that when law-abiding Americans call up their friends, family, doctors, religious leaders, or anyone else, the information on whom they call, when they call, and where they call is private information and should be subject to strong privacy protections.

I have heard it said that the bulk phone records program collects nothing beyond what you could find in a phone book. But let's be clear about exactly what this program does. It collects the very personal details of our phone calls--the who, where, when, and how long--and stores them in a database. This doesn't just happen for those who are suspected of having some connection to terrorism; this program collects the phone records of literally millions of Americans. This is a far greater intrusion into our privacy than being voluntarily listed in the Yellow Pages, and it is the reason why I am calling on the White House and Congress to immediately reform this program.

Let me reiterate that it is absolutely possible to have both privacy and security. Yet, in the case of the bulk phone records collection program, Senator Wyden and I believe we aren't getting enough of either. Not only does this program unreasonably intrude on Americans' privacy, but it also does so without achieving the alleged security gains. For instance, in recent weeks the intelligence community has made new assertions about the value of recently declassified NSA surveillance programs, but in doing so they have conflated two programs: section 702 of the Foreign Intelligence Surveillance Act regarding foreigners' Internet communications and section 215 of the PATRIOT Act regarding bulk phone records. It appears, however, that the bulk phone records collection program alone played little or no role in disrupting terrorist plots--I say this as someone who has been fully briefed on these terror-related events--nor has it been demonstrated that this program even provides any uniquely valuable intelligence. Therefore, saying, as the intelligence community has, that ``these programs'' together have disrupted ``dozens of potential terrorist plots'' is misleading.

While the intelligence community has been conflating these two programs, some of my colleagues

in Congress in recent days have been going even further to say that the phone records program alone has been greatly successful. They have said it has saved lives and prevented dozens of terrorist plots. As someone who has been presented with the same information as my colleagues on the much-discussed 54 terror-related events, I have to say I disagree. Again, I have seen no evidence that the bulk phone records collection program alone has played a meaningful role, if any, in disrupting terrorist plots.

I have yet to see any convincing reason why agencies investigating terrorism cannot simply obtain information directly from phone companies using a regular court order. It may be more convenient for the NSA to collect phone records in bulk rather than asking phone companies to search for specific phone numbers, but convenience alone cannot justify the collection of the personal information of millions of innocent, ordinary, law-abiding Americans, especially when the same or more information can be obtained using less intrusive methods. A few hundred court orders per year would clearly not overwhelm the FISA Court, and the law already allows for emergency authorizations to get these records quickly in urgent circumstances.

Senator Wyden and I are not alone in believing there is a more effective and less intrusive way to collect this information. Even before the nature of the bulk phone records collection program was declassified, there was support for narrowing the language of section 215 from many Members of Congress of both political parties. In fact, when the PATRIOT Act reauthorization passed the Senate in 2005 by unanimous consent, it included commonsense language that would have limited the government's ability to collect Americans' personal information unless there is a demonstrated link to terrorism or espionage. That language was designed to, among other things, protect our Fourth Amendment constitutional rights and put a check on government power. While that language did not make it into the final conference bill, it demonstrated that bipartisan agreement on reforms to section 215 is possible.

Let's fast forward to 2011, when the Senate again took up the extension of a number of expiring provisions of the PATRIOT Act. I offered an amendment drawn directly from language in the 2005 Senate-passed bill to narrow the application of this provision. That amendment, unfortunately, did not receive a vote. But this Congress I introduced bipartisan legislation with Senator Wyden based on that same language and principles, and we are now joined by a strong bipartisan group of our colleagues from across the country and all along the political spectrum, including Senators DURBIN, MURKOWSKI, BEGICH, Tom Udall, MERKLEY, LEE, and HEINRICH. Our bill will responsibly narrow the PATRIOT Act's section 215 collection authority to make it less intrusive on the privacy of law-abiding Americans. Our legislation would still allow law enforcement and intelligence agencies to use the PATRIOT Act to obtain a wide range of records in the course of terrorism- and espionage-related investigations, but it would require them to demonstrate that the records are in some way connected to terrorism or clandestine intelligence activities--which is not the case today.

This past week there was a strong bipartisan vote in the U.S. House of Representatives to curtail NSA's bulk phone records collection. Although the legislation didn't pass, the American people are demanding action and those who share our concerns are on the march. It is time to take action.

It is common sense that our law enforcement agencies should have reason to suspect a connection between the records they are seeking and a terrorism or espionage investigation before using these broad authorities to collect the private information of Americans. If the government can use these powers to collect information on people who have no connection to terrorism, then where does it end? Is there no amount of information that our government can collect that would be off limits? What is next--our medical records?

We must be able to put in place reasonable measures that allow our law enforcement agencies to pursue enemies who would try to harm us, while protecting our rights as Americans.

That is why I believe if an investigation cannot assert some nexus to terrorism or espionage, then the Government should keep its hands off the phone records of law-abiding Americans. These are the kinds of reasonable, commonsense limits on the Government's powers that Coloradoans tell me are necessary to keep us safe while also respecting our privacy.

That takes me back to the statement I made at the outset. I believe it is time to end the bulk collection program as we know it. Tonight I am calling on the White House to begin to make the administrative changes to end the bulk collection of Americans' phone records and to conduct the program instead through direct queries to phone companies where there is a connection to terrorism or espionage. Under this targeted approach, our Government would retain its broad authorities to investigate terrorism while ordinary Americans will be protected from overly intrusive surveillance activities.

Congress should support the administration's move in this direction by passing our legislation to end bulk collection. Passage of our bipartisan bill would prevent unwarranted future breaches of Americans' privacy rights and focus on the real threats to our national security.

Taking into account the serious privacy concerns raised by the bulk collection program, the lack of demonstrated unique value of the program, and our ability through direct queries to the phone companies to collect the data in the same but less intrusive way, I believe the administration--I hope the administration will see the value in working with Congress to end the bulk collection of phone records conducted under the PATRIOT Act's section 215 authorities. I pledge to work with the administration and all of my colleagues to see this through.

Let me end on this note. We need to strike a better balance between protecting our country against the threat of terrorism and defending our constitutional rights. The bulk records collection program as we know it today does not meet this balance test, and that is why I believe it must end.

I yield the floor.

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