Statements on Introduced Bills and Joint Resolutions

Floor Speech

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By Mr. LEAHY (for himself, Mr. LEE, Mr. DURBIN, Mr. HELLER, Mr. FRANKEN, Mr. CRUZ, Mr. BLUMENTHAL, Mr. UDALL of New Mexico, Mr. COONS, Mr. HEINRICH, Mr. MARKEY, Ms. HIRONO, Ms. KLOBUCHAR, Mr. WHITEHOUSE, Mr. SCHUMER, and Mr. SANDERS):

S. 2685. A bill to reform the authorities of the Federal Government to require the production of certain business records, conduct electronic surveillance, use pen registers and trap and trace devices, and use other forms of information gathering for foreign intelligence, counterterrorism, and criminal purposes, and for other purposes; read the first time.

Mr. LEAHY. Mr. President, I am going to speak on another issue. I see my distinguished colleague from Utah Senator Lee is on the floor. It is an issue he has worked with me on. We have tried to join together. It was more than a year ago that not only here in the United States but the whole world learned some very startling details about the massive scope of the National Security Agency's surveillance programs.

Since then the American people, and actually, all three branches of government have been debating the same fundamental questions about the extent of government power that the Framers considered when they crafted the Constitution. Many of us had been arguing those same issues, whether in the Judiciary Committee, the Intelligence Committee, or others. But it was hard to get anybody's attention.

Suddenly the whole world was listening.

The obvious question is, when and how should the government be permitted to gather information about its citizens? How do we protect our country while we preserve our fundamental principles and our constitutional liberties? These questions are even more relevant and more complex as technology develops rapidly, and as more data is created every second.

Nobody questions that the government cannot just walk into our houses, rifle through our drawers, our filing cabinets, and our cupboards, to see what we might have there. But that is not where we keep our data anymore. It is on computers. By the same token, they shouldn't have the right to rifle through our electronic files either. If they collect all this data, should the government be allowed to collect and use all of it?

To what extent does this massive collection of data improve our national security and at what cost to our privacy and free expression? If we pick up everything, do we actually have anything?

The Senate Judiciary Committee considered these and other important questions during the course of six public hearings held over the past year. During this deliberative process, the Committee considered whether the bulk collection of Americans' phone records has been effective in preventing terrorist attacks, the privacy implications of the program, and the effect on the U.S. technology industry. Those hearings helped to demonstrate the need for additional limits on government surveillance authorities.

As these hearings continued, the call for an end to bulk collection under Section 215 of the USA PATRIOT Act grew louder and more persistent. The President's own Review Group on Intelligence and Communications Technology testified before the Judiciary Committee to call for an end to bulk collection, concluding that ``[t]he information contributed to terrorist investigations by the use of section 215 telephony meta-data was not essential to preventing attacks and could readily have been obtained in a timely manner using conventional section 215 orders.'' The Privacy and Civil Liberties Oversight Board also called for an end to bulk collection, concluding that the program ``lacks a viable legal foundation under Section 215.'' Technology executives, legal scholars and privacy advocates called for an end to bulk collection. These witnesses also proposed meaningful reforms to other government authorities, such as Section 702 of FISA, the pen register and trap and trace authorities under FISA, and the national security letter statutes.

Then, earlier this year, President Obama himself embraced the growing consensus that the bulk collection of phone records should not continue in its current form.

Just this week two new reports highlighted the costs of not placing reasonable limits on government surveillance, not just the significant economic cost if you don't put limits but the impact of journalistic freedom and also our right to counsel--our right to counsel--something we assume is an unalienable right, and it is, but it is being undermined.

That is why the technology industry, the privacy and civil liberties community are unified in support for this bill. It is actually now time for Congress to act.

That is why I am introducing the USA FREEDOM Act of 2014. It builds on the legislation that was passed by the House of Representatives in May, as well as the original bicameral, bipartisan legislation I introduced with Congressman Jim Sensenbrenner 10 months ago--last October.

I continue to prefer the original version of the USA FREEDOM Act, but we are running short on time in this Congress. Since passage of the House version in May, I have been working to address concerns that the text of the House bill--though clearly intended to end bulk collection--did not do so effectively. I have worked with both Republicans and Democrats, House Members and Senators.

I spent the past several months in discussions with the intelligence community and a wide range of stakeholders, other Senators, privacy and civil liberties groups, and our U.S. technology industry.

The bill I am introducing today is the result of those hundreds of hours of negotiations and meetings.

First, and most importantly, this bill ensures that the ban on bulk collection is a real ban on bulk collection and that it is effective. It ensures the government cannot rely on section 215 of the USA PATRIOT Act--the FISA pen register and trap-and-trace device statute or the national security letter statutes--to engage in the indiscriminate collection of Americans' private records: yours, mine or anybody else's who may be watching this debate.

Under this legislation, when the government uses these authorities to collect information, it has to narrowly limit its collection based on a ``specific selection term'' that identifies the focus of the collection. ``Specific selection term'' is carefully defined. For Section 215 and the pen register statute, the definition ensures that the government must use a term that is narrowly limited to the greatest extent reasonably practicable consistent with the purpose for seeking the information. The bill specifies the term cannot be a broad geographic area, such as city or State or ZIP Code or area code, nor can it simply be a service provider.

For national security letters, the government must specifically identify the target about whom it seeks information. These provisions preclude the government from seeking large swaths of information that it does not need--and that might very well include private details about the lives of law-abiding Americans.

As a backstop, the bill also mandates additional minimization procedures when the government's collection under Section 215 is likely to be overbroad. It requires the government to destroy data unrelated to its investigation within a reasonable time frame.

Second, the bill enhances transparency regarding the government's use of surveillance tools. That is one of the best checks on a runaway government. FISA and other national security laws provide law enforcement with an extraordinary amount of power. The American people have a right to know how that power is exercised.

Among other things, this bill requires the government to report to the public key information about the scope of the collection under a range of national security authorities, including the number of queries about Americans that it conducts in databases collected under Section 702. It also allows private companies more leeway to disclose the number of FISA orders and national security letters they receive.

I see the distinguished Senator from Minnesota, Mr. Franken, on the floor. I thank him in particular for his leadership and helping to draft these transparency provisions.

Likewise, I thank Senator Blumenthal for his work on the bill's key reforms to the FISA Court. The bill requires the FISA Court and the FISA Court of Review, in consultation with the Privacy and Civil Liberties Oversight Board, to appoint a panel of special advocates who can advance legal positions supporting individual privacy and civil liberties--in other words, it will not be just one voice that is heard, we will actually have dissenting voices--and improve judicial review.

The FISA Court would be required to appoint one of these advocates whenever it confronts a significant or novel issue of law, or it must issue a written finding that appointment of an advocate is not appropriate. The bill also requires the FISA Court to report the number of times that it appoints or declines to appoint an advocate when confronting a novel or significant issue of law. This bill additionally provides a certification mechanism for appellate review of FISA Court decisions when the government prevails, and it provides a declassification process for significant FISA Court decisions.

Finally, this bill improves the judicial review procedures for nondisclosure orders that accompany Section 215 orders and national security letters. These have been so overused. This legislation responds to decisions by Federal courts that found these provisions violate the First Amendment.

While this bill contains significant reforms and improvements, it doesn't fix every problem, and we know there is more work to be done--in particular, with regard to Section 702 of FISA and other broad government surveillance authorities that implicate the privacy rights of Americans.

We could spend the next 20 years waiting to get 100 percent of everything we need. I would like to get most of what we need and then work on the rest.

The bill provides for public reporting on Section 702. That will help set the stage for reform, but transparency alone is not enough. I will continue to work with both Republican and Democratic Senators and other outside experts to work on these issues.

For developing the legislation, I consulted closely with the Office of the Director of National Intelligence, the NSA, the FBI, and the Department of Justice--and every single word of this bill was vetted with those agencies. I am grateful for their receptiveness to the public's concerns and for their constructive participation in this process. Together, we worked hard to ensure that this bill enacts significant and meaningful reforms to protect individual privacy, while providing the Intelligence Community with operational flexibility to safeguard this country.

The Intelligence Community will still have the ability to safeguard this country--nobody is suggesting they shouldn't, but collecting everything is the same as having nothing. That was the mistake we had before 9/11, where we had the information that could have stopped the attack on 9/11, but we failed to look at it all.

I am pleased the executive branch supports our bill. I am pleased the President agrees it should be enacted as soon as possible. But ultimately we--Senators and our colleagues in the other body--have the responsibility of the American people to do what is right and to protect the privacy of the American people. That is why we have worked hard with everybody to ensure the bill enacts meaningful reforms.

This is the most important thing to remember: We can enact this bill, get it signed into law, and it would represent the most significant reform of government surveillance authorities since Congress passed the USA PATRIOT Act 13 years ago. It is a historic opportunity. We would be derelict in our duty to this country if we passed up that opportunity.

I think if people such as Senator Lee, Senator Durbin, Senator Heller, Senator Franken, Senator Cruz, Senator Blumenthal, Senator Tom Udall, Senator Coons, Senator Heinrich, Senator Markey, Senator Hirono, Senator Klobuchar, and Senator Whitehouse have joined, this is not a partisan bill, this is not a Democratic or Republican bill, this is a good bill that protects America.

I also note the particular contributions over many years of Senator Wyden and Senator Mark Udall. They have worked tirelessly to protect Americans' privacy from their posts on the Intelligence Committee.

I am introducing this revised version of the USA FREEDOM Act today because we cannot afford to wait any longer to end the bulk collection of Americans' records. I am concerned that we are running out of time on the legislative calendar. Typically, my strong preference would be to take up the bill in the Judiciary Committee and mark it up. But given the need to act quickly, I am willing to forego regular order and take this bill directly to the Senate Floor.

We cannot let this opportunity go by. This is a debate about Americans' fundamental relationship with their government, about whether our government should have the power to create massive databases of information about its citizens or whether we are in control of our own government, not the other way around.

I believe we have to impose stronger limits on government surveillance powers. I am confident that most Vermonters, and most Americans, agree with me. We need to get this right, and we need to get it done without further delay.

I close with one very quick story I have used before. About the only thing I have actually saved from a newspaper that was written about me, and I liked it so much I framed it. As the distinguished Presiding Officer knows, I live on a dirt road, a place where my wife and I celebrated our honeymoon 52 years ago. The adjoining farmer has known me since I was a little kid.

The whole story in that paper goes like this: A man in an out-of-State car on a Saturday morning drives up, sees the farmer on the porch, and says:

Does Senator Leahy live up this way?

He says: Are you a relative of his?

Well, no, I am not.

Are you a friend of his?

Well, not really.

Is he expecting you?

No.

Never heard of him.

We like our privacy.

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