Usa Freedom Reauthorization Act of 2020

Floor Speech

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Mr. WYDEN. Mr. President, I call up amendment No. 1583.
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Mr. WYDEN. Mr. President, I thank my colleague from Montana for our work on this effort, and I hope we can count on strong support from his caucus, the Senate majority, when we vote in a little bit.

I rise to offer this bipartisan amendment because I think a basic question needs to be asked at this unique time: Is it right, when millions of law-abiding Americans are at home, for their government to be able to spy on their internet searches and their web browsing without its having a warrant? Should law-abiding Americans have to worry about their government's looking over their shoulders from the moment they wake up in the morning and turn on their computers to when they go to bed at night? I believe the answer is no, but that is exactly what the government has the power to do without this bipartisan amendment.

I start by reflecting for a moment on how Americans are using the internet these days. They are helping kids with homework, checking out prescription drug prices for a sick parent, and visiting scores of different websites. In a pandemic, the internet may be their only connection to the outside world.

So the questions we are presenting are, Don't those Americans deserve some measure of privacy? Don't they deserve better than their government's snooping into the websites they visit? How can this be that the government can spy on them when they are not suspected of doing anything wrong? Most importantly, how is this OK in America?

With web browsing and searches, you are talking about some of the most intimate, some of the most personal, some of the most private details of the lives of Americans. Every thought that can come into people's heads can be revealed in an internet search or in a visit to a website: their health histories, their medical fears, their political views, their romantic lives, their religious beliefs. Collecting this information is as close to reading minds as surveillance can get. It is the digital mining of the personal lives of the American people.

Now, typical Americans may think to themselves: I have nothing to worry about. I have done nothing wrong. The government has no reason to suspect me of anything. Why do I need to worry?

Unfortunately, the question is not whether you did anything wrong. The question is whether government agents believe they have the right to look at your web searches. In other words, without this bipartisan amendment, it is open season on anybody's most personal information.

Now, there is a simple solution: require a warrant. With this amendment, the government can go to court and, with a warrant, collect whatever it needs from those who actually threaten the safety of our people. In an emergency--something I feel very strongly about and worked for as a member of the Intelligence Committee--the Government can use emergency provisions, collect the information immediately, and settle up with the court later, proving once again that liberty and security are not mutually exclusive. This type of amendment helps to get you both.

Now I will give a brief explanation of how we got here. Right now the Government can collect web browsing and internet search history without a warrant under section 215 of the PATRIOT Act. Section 215, from the beginning, has been the most controversial and dangerous provision of the FISA law. That is because it is so extraordinarily broad and so vague. Under section 215, the Government can collect just about anything, as long as the Government believes it is relevant to an investigation. This can include the private lives of many innocent, law-abiding Americans. As I indicated, they don't have to do anything wrong. They don't have to be suspected of anything. They don't even have to have been in contact with anyone suspected of anything. Their personal information in some way just has to be connected for relevance to what the Government is looking for.

Back in 2001, when Congress passed the PATRIOT Act, Americans were rightly concerned about their Government collecting their library borrowing records without a warrant. My colleagues and the Presiding Officer might remember it because this was nationwide. People were up in arms about the prospect of the Government looking at library records of books they borrowed and the like.

Well, I will state that what we are talking about today--looking at web history, browsing--it is thousands of times more invasive of privacy than the library records Americans were concerned about years ago.

There is, regrettably, a long history of abuse of section 215. A few years ago, the Government decided it could use section 215 to justify the collection of every American's phone records. The Government secretly decided that phone records of millions of innocent law-abiding Americans were, again, somehow connected, somehow relevant to something the Government wanted. They wanted to get it without a warrant. It was only when this abuse was publicly revealed that Congress stepped in and began reining in the Government's phone record collection.

The Supreme Court did determine recently that physical tracking of Americans as they move around requires a warrant. In this bill, Congress is finally getting around to stopping the Government from using section 215 to conduct warrantless collections of certain location data. The irony is--and I say this to my colleagues because of this unique time--that now that Americans have been asked to stay home and not move around so as to help our country fight this unprecedented contagion, they are more vulnerable to abusive surveillance than ever before. I think that is wrong.

Whether they are in North Dakota, Washington State, Montana, Oregon, or in any of our home States, people are at home and they are living their lives online. Now more than ever I would say to Senators of both political parties--because I have long felt that these issues were fundamental to ensuring that we prove, as I stated earlier, that liberty and security are not mutually exclusive--that smart policies give you both, and not-so-smart policies don't give you either. During this pandemic, Americans deserve assurances that the Government isn't spying on them as they are home, where they think they are going to have some measure of privacy, and, probably, until they heard this debate, didn't know the Government could spy on them at home while they move around the internet.

Americans deserve to know at this unique time that the Government does not engage in digital tracking of their personal lives. The warrantless collection of Americans' web browsing history offers endless opportunities for abuse.

Donald Trump has called for an investigation of his political enemies. Attorney General Barr has injected himself into investigations that affect the personal interests of Donald Trump. All it would take is some innocent American's web browsing history to be deemed relevant to an investigation, and the Government is off to the races, collecting all of that personal information. Then, it wouldn't even matter whether that web browsing history had anything to do with the original goal of the investigation. For any number of reasons, the web browsing history of that innocent American could reveal, potentially, such embarrassing information that the person would be humiliated--humiliated--for years to come and, of course, it can be used against him or her.

This is not a partisan proposition. Any administration given the direction of the law absent this amendment could be tempted to collect the web browsing and internet search history of political enemies-- politicians activists, journalists.

Just before I wrap up, I am going to touch on some of the arguments against this amendment, because having served on the Intelligence Committee and having followed these issues closely, invariably, at some point in this discussion, someone is going to come and say: This bipartisan amendment is going to be pretty much the end of Western civilization as we know it. We are not going to be safe. It is not going to protect our liberties. It is going to set up arbitrary policies.

I want to show how these arguments don't hold water. The first argument is that the Government needs this information before it can get a warrant. But without web browsing history, there is still plenty of information available to the Government, even without a warrant-- phone and email data, subscription data, business records. The biggest response to this argument is that it is Congress's responsibility to determine when some information is so sensitive that it requires a warrant. In this bill that was done with respect to geolocation information. I believe that digital tracking of innocent Americans demands the same protection.

Let me say, as I did earlier, when there is an emergency, something that I have made a priority in my work on the Intelligence Committee, the government can go get the information immediately and then come back to the court later on and settle up.

The other argument that I imagine we will hear is that this amendment will create protections for Americans that don't exist in the criminal context. The problem with that argument is that Congress isn't legislating on the criminal law right now, but it does have a unique opportunity to prevent intrusive surveillance of Americans to prevent abuses.

FISA requires an extra layer of protection. That is because, unlike criminal law, FISA is secret. It is also a nonadversarial process. It relies on Government representations that we have learned, from the inspector general, are frequently inaccurate. When the Government uses FISA information against Americans, there is little or no notice or opportunity to challenge the surveillance.

Most of all, it is subject to something that I have come to call ``secret law.'' It is a law that nobody knows about in a coffee shop in Washington, North Dakota, or Montana. It is basically secretly interpreted. As I pointed out on the floor in the past, warning the American people about these secret interpretations, Americans sometimes don't learn about them for years, and when they find out, they are really unhappy.

So I want to touch briefly on the amendment of the Senate majority leader, the McConnell amendment. Not only is the majority leader trying to block the bipartisan effort that we have been talking about, but his amendment would actually make the situation even worse. Right now the Government can collect web browsing internet searches of Americans without a warrant under section 215, but so far there has not been explicit congressional authorization for the Government to do it. The McConnell amendment would, for the first time, provide that authorization. The McConnell amendment would, in effect, tell the Government that Congress approves of the warrantless collection of Americans' most private information. Wrap your arms around that one-- Congress explicitly approving of the warrantless collection of Americans' most private information when millions of Americans are sitting at home today in Kansas, South Dakota, and all across the country, sitting at home believing that they have some expectation of privacy.

The McConnell amendment pretends to limit the collection of this personal information of Americans, but it is just a fake. What the amendment really does is meaningless, since the Government cannot collect content. But no one knows what that means when it comes to web browsing and internet search history. There is no clarity in the statute. There is no settled law in the courts. The Supreme Court has not weighed in. What the McConnell amendment does is invite the Attorney General to produce yet more secret law, yet another secret interpretation, designed, as these things always are, to allow for the collection of the broadest set of Americans' most private information.

At some point, I believe the Senate needs to focus on a little bit of history. Section 215 was secretly interpreted and abused in the past. The use of these authorities to spy on Americans' web browsing and search history is a screaming alarm, warning us of future abuses. What the American people deserve and what this amendment provides is clarity and transparency about what the government cannot collect without a warrant.

One last argument is that we have heard that, if the Senate amends this bill, oh, my goodness, the House just will not do anything at all. Well, there were 75 House Democrats and many Republicans--I want to underline that, 75 House Democrats and many Republicans--who voted against this bill because it didn't include enough privacy reform. Adding key reforms like this amendment could only strengthen its support in the House.

Americans will not tolerate warrantless Government spying on their most private information when they find out--when they find out that right now, during a pandemic, the Government has the authority to do that. I can't accept that level of unchecked surveillance.

I am very grateful for the sponsors that we have. They were listed by my colleague from Montana.

There are a great array of organizations that share our view that liberty and security are not mutually exclusive.

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Mr. WYDEN. Mr. President, I will state that I think right now, during a unique time in American history when millions of Americans are at home and on line, they deserve to have the U.S. Senate step up, defend their privacy and constitutional rights, and protect them from abuses. This is the moment to stand up for those millions of people who have to be at home because we come together to deal with this contagion.

I believe the Senate ought to pass the Wyden-Daines amendment and oppose the McConnell amendment to protect those people at home. In wrapping up, I also want to commend our friends Senators Leahy and Lee. As was noted, they have worked with us on a host of these efforts. I think they have a terrific amendment to strengthen the oversight role of the independent amici of the FISA Court. I hope Senators will also support it.

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