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

Floor Speech

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Mr. WYDEN. Mr. President, I thank my colleague. He and I have worked on this. He is really outlining the hypocrisy behind what has been going on over the past few days.

Mr. President, due process ought to apply as it relates to guns, but due process wouldn't apply as it relates to the Internet activity of millions of Americans. My view is that the country wants policies that promote safety and liberty. Increasingly, we are getting policies that do not do much of either. Supporters of this amendment, the McCain amendment, have suggested that Americans need to choose between protecting their security and protecting their constitutional right to privacy.

The fact is, this amendment doesn't improve either. What it does is, it gives an FBI field office new authority to administratively scoop up Americans' digital records, their email and chat records, their text message logs, Web-browsing history, and certain types of location information without ever going to a judge.

The reason this is unnecessary--and it is something I believe in very strongly and worked hard for it in the FREEDOM Act--there is a very specific section in the FREEDOM Act, which I worked for and authored in a separate effort in 2013, that allows the FBI to demand all of these records--all of the records I described--in an emergency and then go get court approval after the fact. So unless you are opposed to court oversight, even after the fact, there is no reason to support this amendment.

The FBI has not, in any way, suggested that having this authority would have stopped the San Bernardino attack or the massacre at an LGBT nightclub in Orlando. That is because there is no reason to think that is the case.

The Founding Fathers wrote the Fourth Amendment to the Constitution for a good reason. We can protect security and liberty. We can have both. Somehow, the sponsors of the McCain amendment have said: You can really only have one or the other.

Mr. President and colleagues, the other argument that was made yesterday--some have said, we have to have this amendment because it will just fix a typo in the law. That is not true. I urge colleagues to take a look at the record on this. The record makes it clear that this provision was carefully circumscribed, was narrowly drawn. The notion that this is some sort of typo simply doesn't hold water.

The fact is, the Bush administration--hardly an administration that was soft on terror--said this was not needed, this was not something they would support; that the national security letter statute ought to be interpreted narrowly just the way the authors in 1993 envisioned.

I see my friend, the distinguished chair of the Intelligence Committee. I know we are going to hear how this is absolutely pivotal in order to protect the security of the American people. I will recap.

No. 1, never once has the FBI suggested this would have prevented Orlando; No. 2, in the face of an emergency under the legislation I authored, the government, in an Orlando or San Bernardino issue, can go get the records immediately and then after the fact settle up; No. 3, this was not a typo. This was what the authors had suggested; No. 4, the Bush administration, hardly soft on terror, didn't believe what this amendment was all about was necessary. This is an amendment that would undermine fundamental American rights without making our country safer.

In my view, undermining the role of judicial oversight, particularly when it doesn't make the country safer and we have a specific statutory provision for emergencies to protect the American people, this amendment defies common sense.

I hope my colleagues will oppose it. I urge my colleagues to do so. I think it is going to be very hard to explain to the American people how an approach like the one behind this amendment, that would allow any FBI field office to issue an administrative subpoena for email and chat records, text message logs, web-browsing history, location information--that you ought to be able to do it without judicial oversight, when you have a specific law that says government has the right to move quickly in an emergency. I think it is going to be pretty hard to explain to the American people how you are going to have an arrangement like this that does not make us safer and certainly jeopardizes our liberties.

I am for both, and this amendment doesn't do much of either.

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Mr. WYDEN. I thank my colleague for the time.

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Mr. WYDEN. Mr. President, I want to come back again to the argument I made earlier. The Senator from North Carolina said the FBI would have to wait around if there was something that really had the well-being of the American people at stake. That is simply inaccurate. In the USA FREEDOM Act, I was able to add a provision I feel very strongly about, which says if the FBI thinks the security and well-being of the American people are on the line, the FBI can move immediately to collect all the information we have been talking about. So there is no waiting. There is no dawdling under the amendment we put in the FREEDOM Act. The government can go get that information immediately and come back and then settle up later with the judge. Frankly, that was something I felt extremely strongly about because I wanted it understood that there is not a debate about privacy versus security. This is about ensuring that we have both, and that is why that emergency provision is so important.

My colleague made mention of the fact that the FBI would be waiting around if the country's safety and well-being were on the line. No way--not because of the specific language in the USA FREEDOM Act I offered and my colleague supported. This is about ensuring that the American people can have both security and liberty.

We have heard the lone-wolf provision referred to. That was extended for 4 years in the USA FREEDOM Act. I supported that as well.

So what we are talking about today is not making the country safer but threatening our liberty. And I did draw a contrast between this and the issue with respect to guns. Our colleagues said we ought to have due process as it relates to guns. I certainly support the idea of due process, but it shouldn't be a double standard--we are going to have due process there, and we are not going to have due process as it relates to these national security letters.

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Mr. WYDEN. If I could have 10 additional seconds, and I appreciate my colleague's courtesy.

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Mr. WYDEN. The amendment gives the FBI field office authority to scoop up all this digital material without judicial oversight. That is a mistake.

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