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Floor Speech

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Mr. CORNYN. Mr. President, I would like to speak about the most important law that most Americans have never heard of, and that is section 702 of the Foreign Intelligence Surveillance Act. Last week, the House of Representatives passed legislation to reauthorize this important law before it expires at the end of this week.

FISA, as it is known--the Foreign Intelligence Surveillance Act--and section 702 in particular, is one of the most important and consequential laws we use to keep our country safe from adversaries overseas.

Congress enacted section 702 in 2008 in response to the threats posed by terrorist groups in the wake of 9/11. It tore down some of the walls that prevented the sharing of information that could be used to keep our country safe, and there is no question that it has been a success.

Information acquired through section 702 has helped to identify threats against U.S. troops and to thwart planned terrorist attacks abroad and here at home. It has enabled the Federal Government to stop components of weapons of mass destruction from reaching foreign actors. It has also helped disrupt our adversaries' efforts to recruit spies on American soil and send their operatives to the United States. It has helped to understand and combat fentanyl trafficking, identify foreign ransomware attacks, like the Colonial Pipeline ransomware attack, and uncover war crimes and gruesome atrocities in Ukraine.

For virtually every national security threat that America faces, section 702 is an invaluable asset. There is a reason why it is known as the crown jewel of America's intelligence gathering capabilities.

The President is briefed daily, in something called the President's Daily Brief, on these intelligence threats that are collected for the President's briefing, as I said, on a daily basis. A full 60 percent of the information contained in the President's daily classified intelligence brief is derived from section 702 of the Foreign Intelligence Surveillance Act.

Everyone knows that this authority has not been without controversy. In recent years, the public has learned about extremely concerning misuses of this authority that go far beyond what Congress has authorized. But I want to make clear that the targeting of American citizens here in the United States is expressly prohibited under 702, so any targeting of an American citizen is illegal and should be prosecuted to the fullest extent of the law.

Just to be clear, this authority grants the intelligence community-- by that I mean the CIA, the NSA, the DIA, the FBI--it grants authority to the Department of Justice and our intelligence community to get intelligence on foreigners located outside of the United States--in other words, if it is foreign nationals inside the United States, you cannot use section 702--but more importantly, foreigners outside of the United States who are deemed to be a threat to our national security, agents of a foreign power, for example. It cannot be lawfully used to target U.S. citizens, whether on American soil or elsewhere.

But this is where the issue gets a little bit thorny, and sometimes there is misunderstanding about exactly how this works. So let me go through some of the details. Where this becomes a little more confused is when there is incidental collection of U.S. persons. For example, if you are targeting a foreigner overseas and they are communicating with a U.S. person in the United States, that could be a citizen, that could be a lawful permanent resident. Well, if it is a lawful communication, lawful 702 targeting of the foreign national, and they are talking to a U.S. person, invariably there is going to be information--known as incidental collection--involving the communication with that U.S. person. In other words, both sides of the conversation will be revealed in that lawful targeting of a foreign person overseas.

Here is an example: Let's say the intelligence community is monitoring the communications of a Hamas terrorist in Gaza who is believed to pose a danger to our national security. He is not an American, and he is not on U.S. soil, but he is using U.S.-based communication networks. Let's say in this example that one of the people the Hamas terrorist is communicating with is an American on U.S. soil. Even though the American is not a target of the data collection, his side of the conversation would be visible because he is the one communicating with this foreign target.

But let me be clear. The intelligence community cannot target anyone they believed to be a U.S. person, nor can they target a foreigner with the pretext of getting American citizens' data. For that, you need a warrant. You need to go to court and show probable cause because that is a constitutional right granted to Americans under the Fourth Amendment to the U.S. Constitution.

The Fourth Amendment of the Constitution protects our people from unreasonable searches and seizures by the government, and an unchecked surveillance authority would directly violate that right. That is why we have guardrails. That is why we have protections to minimize the chances of that happening.

I know there has been some confusion. Some of it is from a misunderstanding. Some of it is people, frankly, just misrepresenting exactly what this authority does and does not do. But section 702 does not violate the Fourth Amendment. Every court that has considered the lawfulness of the 702 program has found that it complies with the Fourth Amendment. So when people stand up and say ``Well, section 702 allows the government to spy on Americans,'' that is, frankly, not true. If they say it violates the Fourth Amendment, well, you have at least three courts that have considered the issue and they have said no, it doesn't. So they need to come up with another argument.

To be clear, this is very targeted, very narrow surveillance authority. As a matter of fact, under the reforms passed in the House bill, there are very few circumstances under which the FBI, for example, can exploit or query the 702 information.

So once the information is lawfully collected--targeting a foreign national overseas; that is lawfully collected--it is in a database which can then be queried by the FBI, for example, but there are very limited circumstances where that can happen. They can only search that database if they believe the query or question would return foreign intelligence information or evidence of a crime. The Agency does not have carte blanche authority to probe or go fishing in 702 information.

Unfortunately, there have been some mistakes made by the FBI due to the lack of guardrails and reforms that are in the current bill passed by the House of Representatives. I applaud the House for passing important reforms that will minimize the chances of this inadvertent collection of U.S. persons' information, because it is a violation of the law.

In response to some of these reports of inadvertent collection of U.S. persons' information, in 2021, FBI Director Chris Wray instituted significant reforms to prevent inadvertent queries and improve compliance. Virtually all of those reforms, which have been enormously successful, have now been incorporated in the statute that the House passed last week.

Here is an example: When FBI personnel conduct a query now, rather than having access to this database of lawfully collected 702 information, they are required to opt-in to include that information. They have to affirmatively choose to search that database. Previously, that was not the case. Section 702 data was included in every search by default, and most of the time, it was completely unnecessary.

Multiple reviews have shown that these reforms have made a dramatic difference for the better. Since 2021, since these reforms have been put in place, the total number of U.S. person queries have decreased by 98 percent. That is a dramatic improvement. It is not 100 percent. It is not perfect. We still have work to do. But a 98-percent improvement strikes me as pretty dramatic. On top of that, DOJ conducted a review last year and found that 98 percent of the FBI's 702 queries were fully compliant with these requirements.

This has been reviewed by the Foreign Intelligence Surveillance Court, which is three members of the Federal judiciary appointed by the Chief Justice of the United States.

These reforms implemented by the FBI voluntarily in 2021 and now included in the House reform bill are working, and that is why it is so important that we should codify those changes. We need to make clear that these heightened standards are not simply Agency policy but the law, and that is exactly what the House FISA bill does. It turns the FBI's 702 reforms into law to ensure that the Agency's 702 query policies cannot be neglected or loosened in the future. Once they become the law of the land, even if the FBI were to change its policy, it would be inconsistent with that law and be illegal.

The House bill also extends this authority for a period of 2 years, so our intelligence community can continue to identify threats to our national security and prevent them from materializing.

When we talked about 702 several years ago, FBI Director Chris Wray said, ``The fact that we have not suffered another 9/11-scale attack is not just luck.'' He noted that it is a product of diligence, teamwork, information sharing, dot-connecting, and much of that dot-connecting is made possible by 702.

So I appreciate Speaker Johnson in the Republican-led House for taking action on this bill before this critical authority expires at the end of the week, and I look forward to voting for it in the U.S. Senate.

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