USA FREEDOM Act of 2015
Floor Speech
BREAK IN TRANSCRIPT
Mr. KING. Mr. President, I rise to address the bill before us, the USA FREEDOM Act, and its predecessor, the PATRIOT Act. Before talking about the specifics of those bills, I will try to address the historical context of what it is we are wrestling with and why it is so hard.
What we are really trying to do in this body this week is to balance two critical constitutional provisions. The first is in the preamble, which is to provide for the common defense and ensure domestic tranquility. That is a fundamental purpose of this government. It is a fundamental purpose of any government--to provide for the common defense and ensure domestic tranquility. That is national security, and it is in the very core preamble to the Constitution of the United States.
Of course, the other provisions are found in the Bill of Rights, particularly in the Fourth Amendment, which talks about the rights of the people to be secure in their persons and papers from unreasonable searches and seizures. ``Unreasonable'' is a key word. The people who drafted our Constitution were geniuses and every word counts. The word was ``unreasonable.'' So there is no absolute right to privacy, just as there is no absolute right to national security. We have to try to find the right balance, and that is what we have to do year in and year out, decade in and decade out, in relation to developments in technology and developments in terms of the threats which we face. It is a calibration that we have to continue to try to make.
Now, I have been concerned, as a member of the Intelligence Committee, about the retention of large quantities of telephone data by the government. I think the program under which that data has been analyzed is important, and I will talk about that in a few minutes. I share the concern of many in this body who feel that simply having and retaining all of that information in government computers, even though it was hedged about with various protections and even though there were requirements for how it was to be accessed--and the level of attention to the detail of that access was important--and there is no evidence that it had ever been abused, was a danger to the liberty of our country. I feel the same as many of the Members of this body who have expressed that concern. Therefore, the USA FREEDOM Act, which we have before us now, proposes to move to leave the data with the phone companies. Instead of the government collecting and having it in the government's hands, the data will be in the phone companies. If it is necessary to access that information for national security purposes, the government will have to go through the process of going through the Justice Department and the court in order to get permission to access that data.
Why shouldn't the government simply hold it? I am a subscriber to Lord Acton's famous maxim that ``power tends to corrupt, and absolute power corrupts absolutely.''
While the current administration or the prior administration may have no inclination to misuse that data, we have no idea what may come in the future, what pressures there may be, what political pressures there may be. Therefore, it struck me as sensible to get it out of government's hands.
The trouble I have had with the USA FREEDOM Act is that I felt it went too far in the other direction because there was no requirement in the bill, as it passed the House, that the phone companies retain and hold the data for any particular period of time. They now hold it, as a matter of business practice, for 18 months to 2 years, which is all that is necessary in order to have the data available for a national security search if necessary. The problem is that there is no requirement that they maintain that level of retention.
In fact, in an open hearing, one of the vice presidents of one of the carriers said categorically: We will not accept a limitation on how long we have to hold the data. I think that is a glaring weakness in the USA FREEDOM Act, and, in fact, it led me to vote against the consideration of the motion to proceed when it came up last week.
Today or tomorrow--whenever the timing works out--there will be a series of amendments proposed by the Senator from North Carolina, the chair of the Intelligence Committee, designed to deal with several of these technical but very important aspects of this program. One of those amendments would require the carriers--if they decide to hold the data for a shorter period of time--to notify the government, notify the Congress, and we could then make a decision as to whether we thought that some additional required period of retention would be necessary in order to adequately protect our national security. Another amendment that I understand is going to be proposed is that the transition period from the current program to the private carriers holding the data will be extended from 6 months to 1 year, simply because this is a major, Herculean technical task to develop the software to be sure that this information will be available for national security purposes on a timely basis.
Now, the final question, and the one we have been debating and discussing here is this: Is it an important program? Is it worth maintaining? There has been a lot of argument that if you can't point to a specific plot that was specifically foiled by this narrow provision, then we don't need it at all. I don't buy that. It is part of our national security toolkit.
It is interesting to talk about the history of this provision. It came into being shortly after September 11, because a gap in our security analysis ability was identified at that time, and that was that we could not track phone connections--not content, and I will talk about that in a minute--between the people who were preparing for the September 11 attack. For that reason, the section 215 program was invented.
I want to stop for just a moment and make clear to the American people that this program does not collect or listen to or otherwise have anything to do with the content of phone calls.
As I talked to people in Maine and they approached me about this, they said: We don't want the government listening to all of our phone calls. The answer is: They don't. This program does not convey and has not conveyed any such authority. We are talking about a much more narrow ability to determine whether a particular phone number called another phone number, the duration and date of that phone call, and that is it.
An example of its usefulness was at the Boston Marathon bombing. The two brothers perpetrated that horrendous attack in Boston in April of 2013. This program allowed the authorities to check their phone numbers to see if they were in touch with other people in the country so they could determine whether this was a nationwide plot or whether it was simply these two guys in Boston. That, I will submit, is an important and--some would say--critical piece of information. It turned out that they were acting on their own, but had there been connections with other similarly inclined people in the country at that time, that would have been important information for us to know, and that is the way this program is used.
Is it absolutely critical and indispensable in solving these cases? I don't think anybody can argue that that is the case. Is it important and useful as a part of the national security toolkit? Yes, particularly when the invasion of privacy, if you will, is so limited and really so narrowly defined. I liken it to a notebook that a police officer carries at the scene of a crime. A detective goes to the scene of a crime, takes out his notebook, and writes some notes. If we said that detectives can no longer carry notebooks, would it eliminate law enforcement's ability to solve crimes? No, but would it limit a tool that was helpful to them in solving that crime or another crime? The answer, I think, would be yes.
We should not take a tool away that is useful and important unless there is some compelling argument on the other side. Since we are not talking about the content of the phone conversations--we are simply talking about which number called which other number, and it can only be accessed through a process that involves the Justice Department and then permission from the court--I think it is a program that is worthy of protection and useful to this country, and I think it is particularly important now.
It is ironic that we are talking about, in effect, unilaterally disarming to this extent at a time when the threat to this country has never been greater and the nature of the threat is changing. September 11 is what I would call terrorism 1.0, a plot that was hatched abroad. The people who perpetrated it were smuggled into the country in various ways. They had a specific target and a specific plot that they were working on. That is terrorism 1.0, September 11. Terrorism 2.0 is a plot that is hatched abroad but communicated directly to people in the United States who are part of the jihadist group. But now we are on to terrorism 3.0, which is ISIS sending out what amounts to a terrorist APB to no particular person but to anyone in this country who has been radicalized by themselves or by the Internet. There is no direct connection between them and ISIS. It might be a Facebook post. That person then takes up arms and tries to kill Americans, and that is what their intent is. That is the hardest situation for us to counteract, and that is a situation where this ability to track numbers calling numbers can be extremely useful. In fact, it might be the only useful tool because we are not going to have the kind of specific plotting that we have seen in the past.
This is the most dangerous threat that I think we face today. To throw aside a protection or a safeguard that I believe passes constitutional and legal muster and goes the extra mile to protect the privacy rights of Americans by getting this data out of the hands of the government and that is worthy of the support and the active work in this Chamber to find that balance--the balance between the imperative, the most solemn responsibility we have in this body, which is to provide for the common defense and ensure domestic tranquility, and to protect the safety and security of the people of this country in light of the constitutional limitations in the Bill of Rights that protect our individual liberties that make us who we are--we can do both things. There is never going to be a final answer to this question. But what we have to do is just what we are doing this week, and that is to assess the threats, assess the technology developments, and try to find the right calibration and the right balance that will allow us to meet that most solemn of our responsibilities.
I look forward, hopefully, to the consideration of amendments later either today or tomorrow and look forward to what I hope will be a quick passage of this legislation in the next 24 to 48 hours so we can look our constituents and the people of this country in the eyes and say: We took the responsibility to protect your security seriously, and we also took seriously your rights, your liberty, and your understanding that the government is not going to impinge unreasonably in any way in violation of the principles of this Constitution.
I yield the floor.
BREAK IN TRANSCRIPT
Source