Reforming Intelligence and Securing America Act--Motion to Proceed--
Floor Speech
BREAK IN TRANSCRIPT
Mr. DURBIN. Mr. President, for the past year, the Senate has engaged in a serious, bipartisan effort to reform a controversial spying authority known as section 702 of the Foreign Intelligence Surveillance Act, or FISA. I have never questioned that section 702 is a valuable tool for collecting foreign intelligence.
Congress's intention when we passed section 702 was clear as could be: FISA section 702 is supposed to be used only for spying on foreigners abroad. Instead, sadly, it has enabled warrantless access to vast databases of Americans' private phone calls, text messages, and emails. This powerful tool has been misused, sadly, in the United States to spy on protestors, journalists, and even Members of Congress.
Last Friday, the House of Representatives passed an alarming bill. It is misleadingly called the Reforming Intelligence and Securing America Act, but rather than fixing the flaws in section 702, the House bill will dangerously and unnecessarily expand it.
The Senate is now rushing to pass the House bill as is because FISA section 702 will sunset on April 19, but that is a false choice. No Member should be fooled into believing section 702 will go dark and not be available to be used on April 20 if we do nothing.
We planned for this exact scenario by providing clear statutory authority to continue surveillance under existing orders from the Foreign Intelligence Surveillance Court, known as FISC, after section 702 nominally expires. In fact, the U.S. Department of Justice has already obtained a fresh, 1-year certification from this court to continue section 702 surveillance through April of 2025. Let me repeat that. Existing section 702 surveillance can continue through April 2025 even if it nominally expires on Friday. There is no need for the Senate to swallow whole a House bill that expands rather than reforms section 702.
The House bill contains several alarming and unnecessary expansions of the government's authority for spying. The bill could allow the government to force ordinary U.S. businesses with access to communications equipment--like a Wi-Fi router--to give the National Security Agency access to their equipment. This would greatly expand the number and types of companies forced to assist the NSA with spying and increase warrantless collection of Americans' communications.
Another provision in the House bill would authorize the use of section 702 data by immigration authorities. I am very concerned that that would allow future administrations to target Dreamers and other noncitizens who are only applying for travel documents and are subject to sensitive background checks in that capacity.
Rather than expanding section 702, Congress should reform this authority to protect Americans' privacy. Unfortunately, the purported reforms will have little or no impact. For example, the bill would prohibit what is known as evidence of a crime only queries. This would have prevented the FBI from accessing Americans' communications in only 2 cases out of more than 200,000 searches on U.S. persons in 2022. Other changes merely codify existing internal approval requirements. But with these limits in place, the FBI still conducted an average of more than 500 warrantless searches of Americans every day in 2022.
I will try to make this as basic as I can. After 9/11, we were seriously concerned about the security of the United States, as we should have been. We established authorities in this government to keep us safe. But we had a problem that we had to reckon with, and the problem was this: Despite the great threat we faced, we also had a great responsibility to this publication, the Constitution of the United States, and so we created section 702 and said that we will use it to have queries and surveillance of foreigners in foreign lands but not Americans.
Why did we draw that distinction? Because the Constitution makes it clear: Before the government can listen to my phone call, read my text or email in this country, since I am a U.S. citizen, they have to have a warrant--a warrant which gives them approval for that search--and they have to go to court to get the warrant for that purpose. We made the exception for foreigners in foreign countries, but we said we were trying to protect Americans from this kind of surveillance without complying with the Constitution.
Well, over the years, sadly, the application of this law was not very good. At one point, there were 3.4 million inquiries of American citizens in 1 year.
The Agencies of our government said: We are going to do better. We won't be invading the privacy of individual American citizens. We will do better.
They did better, but there is still an outrageous and unacceptable level of misuse of FISA authority to have surveillance into the privacy of individual American citizens. That is why I rise today.
After the long history of the abuses of this authority--spying on Americans without a constitutional warrant as required--Congress should not rely on internal executive branch procedures as a substitute for court approval.
If the government wants to spy on my private communications or the private communications of any American, they should be required to get approval from a judge, just as our Founding Fathers intended in writing the Constitution.
A bipartisan amendment in the House would have required the government to obtain a warrant before searching section 702 databases for the communications of American citizens, but this critical reform narrowly failed on a tie vote, 212 to 212.
I want to offer a narrower amendment that would only require the government to obtain a warrant in a small fraction of situations where it actually wants to read or listen to private communications of American citizens.
The vast majority of warrantless FBI searches on U.S. persons do not return any results. Less than 1.6 percent--less than 1.6--return any measurable results. Based on recent FBI statistics, that would amount to just 80 times a month that the FBI or other Agencies that are engaged in this 702 surveillance would have to ask for a court order to protect inquiries and investigations into private communications of American citizens.
I have sat through numerous classified briefings on section 702 and listened carefully to the government's concerns about having to obtain this court approval in order to review the contents of Americans' communications. My bipartisan amendment accounts for these concerns by providing exceptions to the warrant requirement for emergencies or cyber security attacks or where an American consents to the search. This will ensure that there won't be any delays that jeopardize national security. What it will not allow are fishing expeditions in which there are no unusual circumstances and the government does not have probable cause.
This pragmatic approach--respecting the Constitution--will safeguard Americans' privacy and still preserve section 702's critical value for collecting foreign intelligence and protecting national security.
The Chair of the independent Privacy and Civil Liberties Oversight Board conducted a thorough review based on the classified record and reached the same conclusion.
Congress has a responsibility to the American people to get this right.
I recognize the importance of section 702, but we should not rubberstamp the House's flawed bill when surveillance is already authorized until April 2025.
I want to respect the need for section 702, but I am sworn to respect the need to follow this Constitution. Without critical changes to improve this bill, I cannot support it.
BREAK IN TRANSCRIPT
Mr. DURBIN. Mr. President, I want to thank my colleague from Texas. Though we may disagree on some aspects of this important law, once again he has made a professional and thorough presentation of his point of view. I hope that those who are following this debate understand it, because it is complicated. It is complicated to understand; it is complicated even to explain. But it seems to me there are a couple of areas here that I would like to express a point of view on of the Senator from Texas's comments.
No. 1, I am in favor of keeping section 702--no question about it. When it comes to its initial purpose, we still need it to keep America safe, and we need it in many different aspects. He mentioned the fentanyl situation. It is horrible. The most recent figures I have received from the Drug Enforcement Administration suggest there are over 100,000 victims a year of fentanyl in the United States. It is the deadliest narcotic. There are at least two cartels in Mexico that are generating this fentanyl: Jalisco and--I am trying to recall the other one. But they are actively engaged, and the Drug Enforcement Administration is monitoring what they are doing.
Do we want to use our capacity to get into that business model and try to find out more information to thwart deliveries into the United States and more fentanyl in the United States? Of course. Sign me up.
The question comes down to a practical question. Let's assume for a moment that we decide that we want to know if someone involved in one of these cartels is making a drop in the United States. We can use 702 because we are dealing with foreigners in a foreign land. That is the premise of 702. So, if we intercept the communications of someone in that cartel in Mexico, the question is, What do we do if the information that they disclose in this conversation includes a reference to an American? What right do we have to go any further in questioning that American's involvement with the cartel? That is when we run into the Fourth Amendment, as far as I am concerned, and it is a serious question as to whether or not we can ask any questions about text, emails, or phone conversations of the American whose name came up in the conversation that we intercepted of the member of the cartel.
That is where we have, probably, a difference of opinion. How far can we go? I believe, if we are going into an inquiry as to what that American's involvement is with that cartel, the Fourth Amendment applies. At that point, we need a warrant.
Through the Chair, I ask if the Senator would like to comment on what I have said so far.
BREAK IN TRANSCRIPT
Mr. DURBIN. Well, I hope I understand the Senator's position as well because I think we just reached a point of agreement. The question is, where do we go from here?
If the foreigner names an American citizen, that is incidental. If our Agency of government decides that they want to explore conversations--phone conversations, texts, and emails--of that named American citizen, I think we both agree, at that point, we have reached Fourth Amendment protection, and it requires a warrant.
All I have tried to do with my amendment is to condition that situation that I have just described to you to be protected in law with three exceptions. I create three exceptions: an emergency situation. I mean, you can imagine--and I can too--after living through 9/11 and other instances. Sometimes you have to move and move quickly, and even a Fourth Amendment warrant may be questionable.
The second part is cybersecurity--or that may be part of it. And the third is when that American citizen happens to be asking to be protected for fear that something is happening to them that they don't want to happen; so they ask the Agency of the government to go forward and inquire as to that foreigner because they want, for their own protection, the Agency to do it. Those three things are built into my amendment as well.
So we may be perilously close to an agreement. I don't know. I won't presume that, but I think what we have said so far is something that I can live with.
BREAK IN TRANSCRIPT
Mr. DURBIN. The consent of the person, of the American.
BREAK IN TRANSCRIPT
Mr. DURBIN. Mr. President, I would like to thank my colleague from Texas and say to those who have witnessed this: This came dangerously close to an actual debate on the Senate floor--a bipartisan debate-- that happens so seldom that those who witness it should probably call their friends.
Seriously, I respect the Senator from Texas. Though we may disagree on some aspects of this, I respect his presentation and thank him for answering the questions.
BREAK IN TRANSCRIPT
Source