Commerce, Justice, Science, and Related Agencies Appropriations Act, 2016

Floor Speech

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Mr. LEAHY. Mr. President, after voting down sensible gun measures earlier this week, Republicans want to change the subject. They want to resort to scare tactics to divert the attention of the American people. Now, they are offering an overbroad proposal that they argue is needed to keep this country safe.

Let's be clear about what we need to stay safe. We need universal background checks for firearms purchases. We need to give the FBI the authority to deny guns to individuals suspected of terrorism. Senate Republicans rejected those sensible measures last night, but we still have the chance to give law enforcement real tools to fight terrorism and violent crime. We should strengthen our laws to make it easier to prosecute firearms traffickers and straw purchasers who put guns in the hands of terrorists and criminals. And we need to fund the FBI and the Justice Department so they have the resources they need to combat acts of terrorism and hate. Those are the elements of the amendment that Senators Mikulski, Baldwin, Nelson, and I have filed--and those are among the actions that Congress could take to protect this country.

Instead Republicans are proposing to reduce independent oversight of FBI surveillance of Americans' Internet activities and make permanent a law that, as of last year, had never been used. And I should note that this is the same law that the Republican leadership in the Senate allowed to expire just last year.

In case there is any confusion, I will state it clearly: The McCain amendment would not have prevented the Orlando attack.

The amendment would eliminate the requirement for a court order when the FBI wants to obtain detailed information about Americans' Internet activities in national security investigations. This could cover Web sites Americans have visited; extensive information on who Americans communicate with through email, chat, and text messages; and where and when Americans log onto the Internet and into social media accounts. Over time, this information would provide highly revealing details about Americans' personal lives. The government should not be able to obtain this information whenever it wants by simply issuing a subpoena.

Senator Cornyn and others have argued forcefully that we cannot prevent people on the terrorist watch list from obtaining firearms without due process and judicial review. They say we need an independent decisionmaker; yet at the same time, they are proposing to remove judicial approval when the FBI wants to find out what Web sites Americans are visiting. The FBI already has authority to obtain this information--if it obtains a court order under section 215 of the USA PATRIOT Act. In an emergency where there is not time to go to court, the USA FREEDOM Act allows the FBI to obtain this information before getting judicial approval, so this amendment is unnecessary.

This amendment is opposed by major technology companies and privacy groups across the political spectrum, from FreedomWorks to Google to the ACLU.

The Judiciary Committee also should study this proposal before it proceeds. The Judiciary Committee has not held a hearing to examine whether this expansion of the NSL statute is necessary or how it would affect Americans' privacy and civil liberties.

Rather than trying to distract us from their opposition to commonsense gun measures, Republicans should support actions that will actually help protect us, like those in the amendment filed by Senator Mikulski, Senator Baldwin, Senator Nelson, and myself. They should support emergency FBI funding. They should support funding for the civil rights division to help protect the LGBT community, the Muslim American community, and the African-American community from hate crimes and discrimination. And they should support my proposal to make it harder for terrorists and criminals to evade background checks by turning to firearms traffickers and straw purchasers. This is a provision that I have developed with Senator Collins and that has been strongly supported by law enforcement.

As we saw in San Bernardino, terrorists can acquire assault rifles by simply using a friend to purchase the guns for them; yet prosecuting such individuals for firearms trafficking has proven to be an extremely difficult task. My proposal will fix these laws. It will provide law enforcement the tools it needs to deter and prosecute those who traffic in firearms, and it will help to close another glaring loophole in our gun laws that allows terrorists and criminals to easily acquire powerful firearms.

I urge Senators to oppose the McCain amendment and to support these measures that will actually help keep our country safe.

Dear Senator: The undersigned civil society organizations, companies, and trade associations strongly oppose an expansion of the National Security Letter (NSL) statute, such as the one that was reportedly included in the Senate's Intelligence Authorization Act for Fiscal Year 2017 and the one filed by Senator Cornyn as an amendment to the ECPA reform bill. We would oppose any version of these bills that included such a propsal expanding the government's ability to access private data without a court order.

This expansion of the NSL statute has been characterized by some government officials as merely fixing a ``typo'' in the law. In reality, however, it would dramatically expand the ability of the FBI to get sensitive information about users' online activities without court oversight. The provision would expand the categories of records, known as Electronic Communication Transactional Records (ECTRs), that the FBI can obtain using administrative subpoenas called NSLs, which do not require probable cause. Under these proposals, ECTRs would include a host of online information, such as IP addresses, routing and transmission information, session data, and more.

The new categories of information that could be collected using an NSL--and thus without any oversight from a judge-- would paint an incredibly intimate picture of an individual's life. For example, ECTRs could include a person's browsing history, email metadata, location information, and the exact date and time a person signs in or out of a particular online account. This information could reveal details about a person's political affiliation, medical conditions, religion, substance abuse history, sexual orientation, and, in spite of the exclusion of cell tower information in the Cornyn amendment, even his or her movements throughout the day.

The civil liberties and human rights concerns associated with such an expansion are compounded by the government's history of abusing NSL authorities. In the past ten years, the FBI has issued over 300,000 NSLs, a vast majority of which included gag orders that prevented companies from disclosing that they received a request for information. An audit by the Office of the Inspector General (IG) at the Department of Justice in 2007 found that the FBI illegally used NSLs to collect information that was not permitted by the NSL statutes. In addition, the IG found that data collected pursuant to NSLs was stored indefinitely, used to gain access to private information in cases that were not relevant to an FBI investigation, and that NSLs were used to conduct bulk collection of tens of thousands of records at a time.

Given the sensitive nature of the information that could be swept up under the proposed expansion, and the documented past abuses of the underlying NSL statute, we urge the Senate to remove this provision from the Intelligence Authorization bill and oppose efforts to include such language in the ECPA reform bill, which has never included the proposed NSL expansion. Sincerely,

Access Now, Advocacy for Principled Action in Government, American Association of Law Libraries, American Civil Liberties Union, American Library Association, American-Arab Anti-Discrimination Committee, Amnesty International USA, Association of Research Libraries, Brennan Center for Justice, Center for Democracy & Technology, Center for Financial Privacy and Human Rights, CompTIA, Computer & Communications Industry Association, Constitutional Alliance, Demand Progress, Electronic Frontier Foundation, Engine.

Facebook, Fight for the Future, Foursquare, Free Press Action Fund, FreedomWorks, Google, Government Accountability Project, Human Rights Watch, Institute for Policy Innovation, Internet Infrastructure Coalition/I2Coalition, National Association of Criminal Defense Lawyers, New America's Open Technology Institute, OpenTheGovernment.org, R Street, Reform Government Surveillance, Restore the Fourth, Tech Freedom, The Constitution Project, World Privacy Forum, Yahoo.

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