Protecting Volunteer Firefighters and Emergency Responders Act

Floor Speech

Mr. COTTON. Madam President, I thank the Senator from North Carolina,
and I appreciate his work and the majority leader's work on this
critical issue. I have been working hand in glove with them all along.

I would say the answer to the question is, no, this does not raise
any reasonable concern about privacy. In fact, the program does not
collect any content. It does not surveil any phone call. It doesn't
even include any personally identifiable information.

I have spent hours with the intelligence officers and the FBI agents
who are responsible for administering these programs--not merely the
general counsels or the directors of these agencies but the men and
women who administer them. I have asked them what they think poses a
greater risk to their privacy--the discount grocery card the Senator
from North Carolina mentioned or the fact that e-commerce Web sites
have their name, address, credit card number, and personal history? And
to a person, every one of them said a greater threat to their privacy
is commercial marketing practices, not this program.

The program has been approved 40 times by 15 different independent
Federal judges based on 36 years of Supreme Court precedent and has
been approved by two Presidents of both parties. If President Obama
wanted to end the program tomorrow, he could, but he hasn't. That is
because this program is lawful, it is faithful to the Constitution, it
is smothered with safeguards against abuse, and it is needed to fight a
rising terrorist threat that we face today. In fact, those threats
today are greater than they were on 9/11. And that is not my opinion;
that is the testimony of this administration's senior intelligence officials.

The rise of Al Qaeda affiliates in Africa and the Arabian Peninsula
and the broader Middle East illustrates the metastasis of Al Qaeda
following its retreat from Afghanistan. These groups are larger and
more spread out than their predecessors. They are also more
technologically and operationally savvy, developing new, nonmetallic
bombs, recruiting westerners, and using the Internet to spread their
hatred. They even publish ``how to'' manuals for becoming a successful
terrorist at home.

Of course, there is the Islamic State--the Obama-described ``JV
team''--which has cut the heads off of innocent Americans, is torturing
and murdering Christians and other religious minorities, and has
sadistically burned people alive. More than 20,000 foreigners have gone
to Syria and Iraq to join this enemy. Some have returned to their home
countries, including the United States, some have remained in their
home countries, becoming more radicalized and ready to inflict harm
against Americans.

We don't have to look any further than this past week, when two
Islamic State-inspired jihadists decided to open fire in Texas. Press
reports indicate that one of the attackers was in contact with an ISIS
supporter currently located in Somalia. This conduct illustrates why
this program is so important. It helps close the gap that exists
between foreign intelligence gathering and stopping attacks here at
home. This is the gap that contributed in part to our failure to stop
the 9/11 attacks.

There are also open source reports of ISIS cells in Virginia,
Maryland, Illinois, California, and Michigan. As a member of the
Intelligence Committee, I receive regular briefings on such threats,
and I invite all my colleagues to receive these briefings if they doubt
that the wolves are at the door or even in our country.

This highlights one challenge of this debate: Most of the information
surrounding the plots and the programs is classified. The intelligence
community has been very accommodating in providing classified briefings
to Members of the Senate and the Congress. The issue, though, is often
getting Members to attend or to visit with the agencies. That is why I
believe the Senate may have to enter a closed session as we debate
these programs, so that Members are not woefully ignorant of the
threats America faces.

Under consideration in the House and proposed in the Senate is the
so-called USA FREEDOM Act, which will eliminate the essential
intelligence this program collects. Proponents of the bill claim that
it provides alternative ways for the intelligence community to obtain
critical information needed to stop terrorist attacks and that it
doesn't compromise our counterterror efforts. But let me be clear. This
is wrong. The alternatives to the current program do not come close to
offering the capabilities we now have that enable us to protect
Americans.

One alternative offered by opponents is to have phone companies
retain control of cell data and provide the NSA only the data
responsive to searches phone companies would run on the agency's
behalf. This isn't technologically feasible.

At the request of the President's own Director of National
Intelligence, the independent National Research Council examined this
proposal, and its experts concluded that the technology does not
currently exist that would enable a system spread among different
carriers to replace the capabilities of the current NSA metadata
program. Any such system would create holes in our ability to identify
terrorist connections.

First, phone companies don't store the data for longer than 180 days
and oftentimes for much shorter periods, and nothing in the USA FREEDOM
Act requires them to store it any longer. The current NSA program,
however, stores data for 5 years, which allows the NSA to discover
potential terrorist links during that time period. A system that keeps
data with multiple carriers that store their data for much shorter time
periods is close to useless in discovering terrorist network and
sleeper cells, many of which lie in wait for years before launching an
attack.

Second, a system that tries to search multiple carriers and then
collects and unifies their responses is cumbersome and time-consuming.
In many investigations, the loss of valuable minutes, hours, and days
may mean the difference between stopping an attack or seeing it
succeed.

Third, data stored with phone companies rather than the NSA is more
vulnerable to hackers who would seek to abuse queries of the stored
metadata.

Fourth, the costs are unknown, and the American people will bear
them--either as taxpayers if the telecom companies ask to be reimbursed
or as consumers as the companies pass along the costs on your phone
bill, perhaps as an NSA collection fee.

Fifth, to those people who say that this is technologically feasible
and that we can easily execute it, I would remind you that this is the
Federal Government that brought you healthcare.gov.

A second alternative offered is to pay a third-party contractor or
quasi-private entity to store data and run the program. I would argue
that this is untested and unworkable.

First, the proposal would also require an indefinite stream of
taxpayer dollars to fund it.

Second, the private entity may be subject to civil litigation
discovery orders as it may hold information relevant to cases, which
would expose Americans' data to judicial proceedings with no connection
to national security and without the security and privacy protections
in place today.

Third, a new organization will create the need for heavy security,
top-secret clearances for employees, and strong congressional
oversight. As more resources are devoted to such an entity, what we end
up with is a reconstituted NSA program but at additional cost to
taxpayers and greater threats to privacy.

As I mentioned, I have taken the opportunity in recent months to go
and visit the men and women who work at the NSA and FBI. I can tell you
all that they are fine Americans with the highest character. I spent
hours with the very small number of men and women at Fort Meade who are
allowed to search this data. I would ask how many critics of the
program have actually done that.

Let's examine in detail how these men and women search this data. An
independent Federal court regularly approves NSA's authority to collect
and store the data in the first place. But for these men and women to
even look at the data, it must go through a multistep process that
includes approval by four different entities at the NSA, numerous
attorneys at the Department of Justice, and those very same judges who
sit on that court. Even if a search request is granted, not just anyone
at the NSA can access the data; access is limited to this small group
of men and women, all of whom undergo regular background checks, drug
tests, and are subject to regular polygraphs, many of whom are military
veterans.

To prevent abuse of the program in retrospect, searches of the data
are automatically recorded and regularly audited by both the inspector
general and the Department of Justice, with strict penalties for anyone
found to have committed abuse.

Moreover, I, the Senator from North Carolina, and other members of
the intelligence committees of both Houses of this Congress participate
in these reviews. This is a robust and layered set of protections for
Americans, their privacy, and these protections would not exist under
the proposed USA FREEDOM Act.

There are also protections that almost definitely will not be adopted
by private telecom providers, which some wrongly suggest might retain
exclusive control of this data.

These multiple safeguards are why to date these programs have a
sterling record, with no verified instances of intentional abuse, not a
single one.

In conclusion, in the wake of the traitorous Snowden disclosures,
Senator Chambliss and Senator Feinstein showed great leadership when
they came together to defend these programs as both legal and
effective. As Senator Feinstein wrote when she was chair of the Senate
Intelligence Committee, to end this program will substantially increase
the risk of another catastrophic attack in the United States. That is a
proposition with which I wholeheartedly agree.

I now see my colleague from the Judiciary Committee on the floor. He
is a former U.S. attorney and State attorney general, and I wonder if
he agrees that this program is both constitutional and does not differ
in substantial ways from the traditional tools prosecutors can use
against criminals while also providing adequate safeguards to American
privacy.

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