Ensuring Tax Exempt Organizations the Right to Appeal Act

Floor Speech

BREAK IN TRANSCRIPT

Mr. LEE. I would like to be clear at the outset that while the Senator from Kentucky and I come to different conclusions with regard to the specific question as to whether we should allow section 215 of the PATRIOT Act to expire, I absolutely stand with the junior Senator from Kentucky and, more importantly, I stand with the American people.

With regard to the need for a transparent, open amendment process and for an open, honest debate in front of the American people on the important issues facing our Nation, including this one--and I certainly agree with the Senator from Kentucky that the American people deserve better than what they are getting, and, quite frankly, it is time that they expect more from the Senate.

On issues as important as this one, on issues as important as the right to privacy of our citizens and our national security, this is not a time for more cliffs, more secrecy, and more eleventh-hour backroom deals that are designed to mix conflict, mix crisis in a previously arranged time crunch in which the American people are presented with something where they don't really have any real options.

It is time for the kind of bipartisan, bicameral consensus I believe is embodied in the USA FREEDOM Act. While I often criticize Congress for our economic deficits, our financial deficits, the core of this current challenge we face is centered around the Congress's deficit of trust--in this particular circumstance, the Senate's deficit of trust. Members of our body routinely tell the American people to just trust us. Trust us, we will get it right. Just trust us, we will appropriately balance all the competing concerns.

I think it is time that we trust the American people by having an honest discussion with them emanating from right here on the floor of the Senate. It is time to discuss and debate and to amend the House-passed USA FREEDOM Act.

I am confident that Senator Paul and others among my colleagues who have different ideas from mine will be happy to offer and debate amendments to improve it and make it something perhaps that they could even support. In fact, as far as I am aware, Senator Paul and others have amendments that they are eager and anxious and willing and ready to present and to have discussed here on the floor and voted on right here on the floor of the Senate.

But first I am calling on my Republican and Democratic colleagues to help repair the dysfunctional legislative branch we have inherited, to rebuild the Senate's reputation as not only our Nation's but the world's greatest deliberative body, and, by extension, slowly restore the public's confidence in who we are and what we are here to do here in the Senate.

The greatest challenge to policymaking today is perhaps distrust. The American people distrust their government. They distrust Congress in particular. It is not without reason. For their part, Washington policymakers seem to distrust the people.

Almost as pressing for the new majority here in the Senate is that the distrust that now exists between grassroots conservative activists and elected Republican leaders can be particularly toxic. Leaders can respond to this kind of distrust in one of two ways. One option involves the bare-knuckles kind of partisanship that the previous Senate leadership exhibited over the last 8 years, twisting rules, blocking debate, and blocking amendments, while systematically disenfranchising hundreds of millions of Americans from meaningful political representation right here in this Chamber. But this is no choice at all. Contempt for the American people and for the democratic process is something Republicans should oppose in principle. In fact, it is something we oppose in principle.

We should throw open the doors of Congress, throw open the doors of the Senate, and restore genuine representative democracy to the American Republic. What does this mean? Well, it means no more cliff crises, no more secret negotiations, no more ``take it or leave it'' deadline deals, no more passing bills without reading them, and no more procedural manipulation to block debate and compromise. These are the abuses that have created today's status quo--the very same status quo that Republicans have been elected to correct.

What too few in Washington appreciate and what this new Republican majority in Congress must appreciate if we hope to succeed is that the American people's distrust of their public institutions is totally justified. There is no misunderstanding here. Americans are fed up with Washington, and they have every right to be. The exploited status quo in Washington has corrupted America's economy and their government, and its entrenched defenders, powerful and sometimes rich in the process. This situation was created by both parties, but repairing it is now going to fall to those of us in this body right now. It is our job to win back the public's trust. That cannot be done simply by passing bills or even better bills. The only way to gain trust is to be trustworthy. I think that means that we have to invite the people back into the process, to give the bills we do pass the moral legitimacy that Congress alone no longer confers.

In order to restore this trust, Members will have to expose themselves to inconvenient amendment votes, inconvenient debate and discussion, and scrutiny of legislation we are considering. The result of some votes in the face of certain bills may, indeed, prove unpredictable, but the costs of an open source, transparent process are worth it for the benefits of greater inclusion and more diverse voices and views and for the opportunity such a process would offer to rebuild the internal and the external trust needed to govern with legitimacy.

BREAK IN TRANSCRIPT

The idea behind this program is to build and maintain a database storing information regarding each call you have made and each call that has been made to you, what time each call occurred, and how long it lasted. This is an extraordinary amount of information, information that, while perhaps relatively innocuous in small pieces, when put together in a single database--one that includes potentially more than 300 million Americans, one that goes back 5 years at a time--can be used or could easily be abused in such a way that would allow the government to paint a painfully clear portrait, a silhouette of every American. Some researchers have suggested, for example, that through metadata alone, it could be ascertained how old you are, what your political views are, your religious affiliation, what activities you engage in, the condition of your health, and all other kinds of personal information.

One of the reasons this is distressing is, that, unlike a program that would involve listening to the content of your telephone calls--which, of course, is not at issue with respect to this program--all of this can be done with a high degree of automation, such that those intent on abuses could do so with relative ease, with the type of ease that they would not have access to absent this type of automation.

Sometimes people are inclined to ask me: Where is the evidence that this particular program is being abused? What can you point to that suggests anyone has used this for a nefarious political purpose or for some other illegitimate purpose not connected with protecting American national security?

I have a few responses to them. First and foremost, we do need to look to the Constitution, both to the letter and spirit of that founding document that has fostered the development of the greatest civilization the world has ever known.

It isn't important for its own sake simply because we have taken an oath to uphold, protect, and defend it as Members of this body. The Constitution is an end unto itself. It is important that we follow it regardless of whether we can point to some particular respect in which this particular program has been abused.

Secondly, even if we assume, even if we stipulate for purposes of this discussion that no one within the NSA is currently abusing this program for nefarious political purposes or otherwise, even if we assume no one within the NSA currently is even capable of abusing or has any inclination to abuse this program at any point in the future, I would ask the question: Can we say we are certain that will always be the case? Who is to say what might happen 1 year from now, 2 years from now, 5 years, 10 years or 15 years from now?

We know how these things happen. We understand something about human nature. We understand what happens to human beings as soon as they get a little bit of power. They tend to abuse it.

Remember the investigation brought about by Senator Frank Church in the 1970s. Senator Frank Church, when he investigated wiretap abuses--abuses of technology that was still only a few decades old back in the 1970s when this occurred--the Church Committee concluded, among other things, that every Presidential administration from FDR through Richard Nixon had abused our Nation's investigative and counterintelligence agencies for partisan, political purposes to engage in political espionage. Every single one of those administrations from FDR to Nixon had done that.

In that sense, we have seen this movie before. We know how it ends. We know that even though the people working at the NSA today might well have only the noblest of intentions, over time these kinds of programs can be abused, and we know a lot of people in America understand the potential for this abuse.

Thirdly, I have to point out that the NSA currently is collecting metadata only with respect to phone calls. But under the same reading of section 215 of the PATRIOT Act that the NSA has used to collect this metadata--a reading with which I disagree and a reading with which the U.S. Court of Appeals for the Second Circuit disagreed in its thoughtful, well-written opinion just about 2 weeks ago--even though the NSA is currently collecting only telephone call metadata right now, there is nothing about the way the NSA reads section 215 of the PATRIOT Act--which is incorrect, by the way, an incorrect reading--but there is nothing about that reading that would limit the NSA to collecting only metadata related to telephone calls.

So who is to say the NSA might decide tomorrow or next year or a couple of years from now--if we reauthorize this--or at some point down the road during a period of reauthorization, that the NSA will not decide at that point to begin collecting other types of metadata, not just telephone call metadata but perhaps credit card metadata, metadata regarding people who reserve hotels online, regarding emails that people send or receive, regarding Web sites that people visit online, regarding online transactions that occur. Those are all different types of metadata.

Now, again, I disagree with the NSA's legal interpretation of section 215 of the PATRIOT Act. I think they are abusing it. I think they are misusing it. I think they have dangerously misconstrued it, just as the U.S. Court of Appeals for the Second Circuit concluded a few weeks ago. But this is their interpretation. And if we reauthorize this, are we not reauthorizing, in some respects, or at least enabling them to continue this? I don't think we are validating or ratifying what they are doing.

Their interpretation of it is still wrong, but we are enabling them to engage in a continued ongoing practice of abuse of the plain language of section 215, which requires that anything they collect be relevant to an investigation.

Well, their interpretation of ``relevant to the investigation'' is we might at some point in the future deem this material relevant to what we might at some point in the future be investigating. That cannot plausibly, under any interpretation of the word ``relevance,'' be acceptable. And it was on that basis that the Second Circuit rejected the NSA's interpretation.

In any event, that same interpretation will still be the NSA's interpretation if, in fact, we reauthorize this.

There is nothing stopping the NSA from using that same interpretation--mistaken interpretation but an interpretation nonetheless--of section 215 in a way that would allow--there is nothing stopping them from using that same misinterpretation of a statutory language for the purposes of gathering metadata on credit card usage, on online activity, on emails sent online and received. From that you can discern even more information about a person's profile. You can come up with a very frighteningly accurate picture of anyone based on that kind of metadata, just as you can now, but that would give them an even bigger picture. That would be an even greater affront to the privacy interests of the American people.

All of this relates back to the idea that the government shouldn't be able to go out and say: Here is a court order. We want all of your information. We want all of your data. Just give it to us because we might want it later.

This type of dragnet operation is incompatible with our legal system. It is incompatible with hundreds of years of Anglo-American legal precedence. It is incompatible with the spirit, if not the letter, of the U.S. Constitution, and it is not something we should embrace.

At the end of the day, we need to do something with this program. Not everyone in this Chamber agrees on what that something is, and not everyone in this Chamber who believes we need reform or who believes the NSA's program of bulk metadata collection is wrong agrees on the same solution. But the way for us to get to a solution must involve open, transparent debate and discussion, and it absolutely should involve an open amendment process.

So if there are those who have concerns with the legislation passed by the House of Representatives last week by a vote of 338 to 88, I welcome their input. I welcome any amendments they may have. I welcome the opportunity to make the bill better, to make it more compatible with this or that interest, to make it do a better job of balancing the privacy and national security interests at stake.

But we have to have that debate and discussion, and we have to have that process in order for the American people to be well represented and well served. We cannot continue to function by cliff.

Government-by-cliff is a recipe for disaster. Government-by-cliff results in a take-it-or-leave-it, one-size-fits-all binary set of choices that disserve the American people. Government-by-cliff all too frequently results in temporary extensions rather than some type of lasting legislative solution that can help the American people feel more comfortable that they are being well represented.

So I would ask my distinguished colleague, my friend the junior Senator from Kentucky, if there are not ways in which we could come to an agreement, if we as a body couldn't come to an agreement on how best to resolve this difficult circumstance, if the cause of protecting American national security is irreconcilably in conflict with the privacy interests that are part of the Fourth Amendment and, most importantly, I would ask my friend from Kentucky if privacy isn't, in fact, part of our security rather than being in conflict with it.

I would be interested in any thoughts my friend from Kentucky might have on that issue.

BREAK IN TRANSCRIPT

Mr. LEE. I do. At the outset of my question, I would like to point out that while I disagree with you, Senator Paul, with regard to the specific question of whether we should allow section 215 of the PATRIOT Act to expire in its entirety, I don't believe we need to do that. I would prefer that we pass the USA FREEDOM Act as passed by the House of Representatives by an overwhelming margin of 338 to 88 last week.

While we disagree on that issue, I absolutely stand with you, Senator Paul, and I believe with the American people, on the need for an open, transparent process and debate regarding this issue. I also stand with the Senator with regard to the belief that bulk metadata collection is wrong. It is not something that we can support. It is not something that the American people feel comfortable with and that it is incompatible with the spirt if not the letter of the Fourth Amendment to the Constitution of the United States that we have all sworn an oath to uphold and protect and defend.

Let's remember the text of the Fourth Amendment. The text of this amendment, penned in 1789, ratified in 1791, says: ``The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

These are not idle words. They are not surplusage. They are not there just for ornamental purposes. They are there to put important limitations on the power of government, to make sure that when government goes after things--things that are important to our personal lives, things that are part of our houses, things that are part of our papers, our personal effects--those things cannot just be grabbed randomly by government.

Government has to have a reason for going after them, and government has to be constrained in some meaningful way in the way it goes after them.

When the government relies on a warrant, the warrant needs to describe the things or the places to be searched with particularity. The people subject to them need to be identified with some particularity.

And, you know, these words were meant to be flexible. They were meant to be molded from time to time in different circumstances. They are not absolute in their terminology, and that is one of the reasons they have endured for well over two centuries and why they have been able to adapt to changes in technology. But there is not any reasonable construction of this language that I think can countenance what the NSA is doing and what we are talking about here, which is the bulk collection of telephone metadata.

Now, what is happening is that the NSA is getting these orders, these orders from the Foreign Intelligence Surveillance Court, and these orders basically tell the telephone service providers: Give us all your data. Give us all your records, all of them. We don't really care whether they are relevant to an ongoing investigation of a particular person or of a particular terrorism ring or a particular foreign intelligence group of activities. We want all of them. Send all of them to us. We are going to put them all in a database and we are going to search them when we feel like it.

Now, I don't dispute the claim made by the NSA that there are a limited number of people who have access to this database, nor do I dispute, at least for purposes of this discussion I am not going to dispute--and I have no basis for refuting--the assertion that the people who work at the NSA are well intentioned, that they have our national security interests at heart, that they are there to protect us.

But even if we don't dispute any of those things, even if we accept all of those things as a given, we have to acknowledge the very real risk that the same people who work there now might not be--in fact, we are certain theywill not be--the same people who work there 1 year from now or 2 years from now or 5 years or 10 years or 15 years from now.

And we know something about human nature, which is that humans, when given power, will sometimes abuse that power. Sometimes they will abuse that power to the detriment of others. Sometimes they will do it for personal financial gain. Sometimes they will do it for political gain. Sometimes they will do it in order to further certain agendas.

That is exactly why it is so important to put boundaries around the authority of government. That, of course, is what the Constitution is. This is our set of boundaries. This is our fence around government authority. It is there for a reason. It is there to make sure the American people are protected against government.

So, first, the Founding Fathers put in place this structure that explained how government would work. It established the government, and then it carefully positioned this series of fences around the government to make sure power wasn't abused against the people.

It is interesting, when the PATRIOT Act was enacted and when it was subsequently reauthorized several years later, Congress put in place a relevance requirement. Congress put in place--in section 215 of the PATRIOT Act--a requirement that the business records that were obtained by the NSA, pursuant to section 215 of the PATRIOT Act, had to be relevant to an investigation, relevant to some things they were doing.

Here again, as with the language of the Fourth Amendment of the Constitution, there is some play in the joints of the term ``relevance.'' Some things might be relevant in one situation and not another. Whether it is relevant is going to depend on a lot of facts and circumstances pertinent to the investigation in question, but it stretches the term ``relevant'' or the concept of relevance beyond its breaking point, beyond any reasonable definition.

If you deem something to be relevant, so long as it might in some future investigation--one that has not yet arisen--become relevant, such that you had to gather every record of every phone call made in America, such that NSA wants to go after every record of every phone call made by every American going back 5 years, storing that series of records in a single database that can be queried for up to 5 years in advance.

Let's just go through this exercise for a minute. Think to yourself, how many phone calls have I made in the last 5 years? How many distinct phone numbers have I called in the last 5 years?

Well, if somebody has called 1,000 phone numbers--or, let's say, made phone calls to 500 phone numbers and received phone calls from another group of 500 phone numbers, for a total of 1,000 phone numbers over the last 5 years, then that is 1,000 numbers. Then the NSA goes out one hop beyond that and connects each person, each phone number with whom the original person had contact. Let's assume that each of those phone numbers had, in turn, contact with 1,000 phone numbers. You get to 1 million phone numbers pretty quickly.

But each time the NSA collects these data points, each data point taken in isolation might not say much about that person. But as our friend and our colleague from Oregon noted a few minutes ago, it is by using that combination of data points, by aggregating all of those data points together, someone can tell an awful lot about a person.

In fact, there are researchers who, having used similar metadata and similar sets of metadata in their own databases, have concluded that they can tell what religion a person belongs to, what political party someone belongs to, their degree of religiosity, and their degree of political activity.

They can tell what someone's hobbies are. They can tell whether they have children, whether they are married. They can tell how healthy they are, what physical ailments they might suffer from. In many instances, they can tell what medications they are on. And all of these things are made more efficient by virtue of the automation in this system.

So while it is true people point out that under section 215 of the PATRIOT Act, under this particular program, the NSA is not listening to telephone conversations. They are not listening to them.

Interestingly enough, this is very often a straw man argument that is thrown out by those who want to make sure that section 215 of the PATRIOT Act is reauthorized without any reforms. They claim that those who are opposed to this type of action are out there falsely claiming that the NSA is listening to phone calls over this program.

Well, that accusation of falsehood is, itself, false. That accusation of falsehood is, itself, a straw man effort. It is a red herring. It is a lie. It is a lie intended to malign and mischaracterize those of us who have genuine, legitimate concerns with this very program, because the fact is we don't make that argument. The argument we are making is that the NSA doesn't even need to do that. The NSA can tell all kinds of things about people just by looking at that data.

Because it is automated and because it is within a system that operates with a series of computers, they can tell very quickly it is a lot less human resource-intensive than it would be if they were having to listen to countless hours of phone conversations. It is a lot more efficient.

Again, I want to be clear. I have no proof that the NSA is currently abusing this particular program. I am not aware of any evidence that such abuse is occurring. And I am willing to assume, for purposes of this discussion, that is not occurring, that the men and women who work at the NSA have nothing but the best interests of the American people and American national security at heart.

But how long will this remain the case? And how safe, how fair is it of us to assume that will always be the case? We can scarcely afford--for the sake of our children, our grandchildren, and those who will come after them--we cannot afford to simply assume this will always be the case.

We have to remember what happened a few decades ago when Senator Frank Church and his committee looked into wiretap abuses that had happened within the government. We have to remember the Church report that was released at the end of that investigation.

That report concluded that every Presidential administration from FDR through Richard Nixon had utilized law enforcement and intelligence-gathering agencies within the Federal Government to go engage in political espionage. So that technology, which was then only a few decades old, had been abused. It had been abused for a long time. The abuse of this technology had gone, of course, unreported for many decades, but it had nonetheless been occurring.

Again, I don't know, I can't prove it. I have no evidence that such abuse is going on right now. But I think all of us, in order to be honest with ourselves, would have to acknowledge that there is at least some risk that if it is not occurring now, at some point it will occur in the future. This temptation is simply too strong for most mortals to resist, particularly in an area such as this where there is, with good reason, very little ability for the outside world to observe what is going on inside that particular government agency.

Now, that is exactly why I happen to support what was passed by the House of Representatives last week. What was passed by the House of Representatives last week in the form of the USA FREEDOM Act was something that would require the NSA to, instead of going out to all the telephone companies and saying, send us all of your records, we want your calling records, just give us your records, we don't care whether it is relevant to a particular phone call, particular to a specific number that was itself involved in terrorist activity or foreign surveillance activity, we don't care about that, just send it to us--far from doing that, what the USA FREEDOM Act would require is for the government to show that they needed records related to a telephone number that was itself involved in some kind of activity. They wouldn't have the ability to go to all the phone companies and just say send us everything.

They would instead have the power to get a court order, to get those records of those phone calls that might well be connected to terrorism based on their contact with a phone number that was related to such activities or their contact with somebody else, with some other phone number that was, in turn, having some kind of communication with someone involved in those activities.

Not all of us agree on this and, Senator Paul, you and I don't agree on this particular bill, but we do agree on the underlying issue. And we also agree that the Senate works best, that the Senate serves the American people well when it lives up to its self-described reputation as being the world's greatest deliberative legislative body. We would all be better off if we were able to put this bill on the floor right now--if this bill were able to come to the floor and it were subjected to open, honest debate and discussion so the American people could see we were debating this and so that you, Senator Paul, and some of our other colleagues who have ideas as to how we could make this legislation better would have the opportunity to introduce, in the form of an amendment, improvements to this legislation.

I heard you outline quite articulately just a few hours ago some very thoughtful reforms, some very well-thought-through improvements, amendments that you would make to this legislation. I think we would all be better off if we took that kind of approach.

Now, we have seen in the last few months what can happen. When we came back in January, we saw that the desks in the Senate Chamber had been rearranged. Many of us were pleased. We didn't shed a tear at the realignment of the desks, and we have noticed that this realignment of the desks reflected a change in the political attitude among Americans. But, more importantly for us, it was the precursor to some very positive developments in the Senate.

We saw that within just a few weeks after this shift in power had occurred, we had cast more votes on the floor of the Senate than we had in the entire previous year. Within a few months, we had cast more votes on the floor of the Senate than we had cast in the 2 years previous to that. This was a good sign.

This is a good sign. It is not just because we are here and we cast votes; it is because those votes represent something--they represent the fact that we are actually debating and discussing and we are allowing each Senator to have his or her views heard. We are putting ourselves on record as to what we believe represents good policy and what does not.

I think we would be in a much better position to address the national security needs of our great country if we had such an opportunity with respect to this legislation. That is one of the reasons I came to the floor yesterday, along with one of our colleagues, the senior Senator from Vermont, and asked unanimous consent to bring this bill--the House-passed USA FREEDOM Act, H.R. 2048--to the floor and to have open debate and discussion and an open amendment process, with the understanding we would turn back to the trade promotion authority bill as soon as we had properly disposed of this legislation, as soon as we had finished debating and discussing it, voting on amendments and voting on the legislation.

I am a big believer in free trade. I like free trade. I think free trade is good. I would like to see us get to both of these pieces of legislation. But importantly, H.R. 2048 is a piece of legislation that has kind of a fuse attached to it. Section 215 of the PATRIOT Act is set to expire at the end of this month, and many of us believe we ought to at least have a debate and discussion before that happens, a debate and discussion about what, if anything, would take its place, about whether we need something to put in its place and if so, what that might look like. So that is why we made this request. This request we regarded as a very reasonable one was, unfortunately, one that drew an objection, so we were not able to bring it to the floor.

The U.S. Court of Appeals for the Second Circuit, based in New York, recently addressed this issue of whether section 215 of the PATRIOT Act can appropriately be read to authorize the NSA to engage in this bulk metadata collection program. The U.S. Court of Appeals for the Second Circuit answered that question in the negative and concluded there is no statutory authority for the NSA to collect this type of metadata. It doesn't have the authority. It cannot collect bulk metadata on this basis.

As the Second Circuit concluded, the business records sought under that provision have to be relevant. There has to be some relevance to something they are investigating. And of course their only relevance here, under this program, is that they exist; it is that they represent phone calls made by someone in the United States, that they were made under a telephone network in the United States. That can't be the answer. That cannot reflect a proper understanding of this concept of relevance that is in section 215 of the PATRIOT Act. It can't, and it doesn't.

This court ruling is one of the many reasons why we need to be having this debate and why we shouldn't be willing to simply reauthorize section 215 of the PATRIOT Act with the understanding that the NSA will continue operating this program as is if we reauthorize it.

It is one of the reasons why I have been so insistent on having this discussion and so unwilling to support even a shorter term reauthorization of the PATRIOT Act--because they are interpreting section 215 in the PATRIOT Act beyond its logical breaking point.

We have to remember that the Constitution is worth protecting. It is worth protecting even when we can't point to anything bad that is happening right now, even when we can't point to any specific abuse that is occurring.

Bulk data collection is itself a type of abuse. There is a type of constitutional injury even though we can't point to anything secondary from that. We can't point to any horrible secondary effect from it; it is in and of itself wrong.

The wrongness of this program can be illustrated when we take to its logical conclusion the very arguments presented by the NSA for this type of activity. Let me explain. The metadata that is collected by the NSA right now relates exclusively to telephone calls. The records they collect involve records of who you call, when you called them, who calls you, when they called you, and how long the phone call at issue lasted. That is it.

But if the NSA is correct in its interpretation of section 215, which it is not, but if it were correct, there is absolutely no reason why the NSA could not also collect a number of other types of metadata--metadata records, for example, involving the use of your credit card, involving hotel reservations, involving airplane reservations, metadata regarding emails you have either sent or received, who you sent them to and who you received them from, your Internet traffic, where you have purchased online, who has purchased something from you online, and all kinds of things. From that metadata, they could clearly paint a much more vivid picture of you, a profile built as a mosaic from a billion data points. They can tell everything about you from that type of metadata.

Sure, the NSA is not collecting that type of metadata right now. They are not doing it right now. But if we reauthorize this without limitation, if we reauthorize section 215 of the PATRIOT Act and we don't include any kind of restriction on it, there is absolutely no reason why the NSA couldn't conclude tomorrow or next week or a year from now or later that it wants to collect this kind of data as well.

I would suspect nearly all Americans would be shocked and horrified to think the NSA could and would and might at some point in the future collect that kind of information on where you shop online, your credit card bills, your hotel reservations, things like that, things that could easily be connected back to an individual and easily give rise to abuse either for partisan political purposes or for some other nefarious purpose.

I also want to point out that those who are in favor of this program and those who vigorously defend its constitutionality routinely rely on a decision rendered by the Supreme Court in the late 1970s in a case called Smith v. Maryland. They point out that in Smith v. Maryland the Supreme Court upheld the constitutionality of some police activity that involved the collection of calling data. The Supreme Court concluded in that case that there was not a sufficiently significant expectation of privacy in records of calls that somebody had made and received such that the collection of that data would require a search warrant.

I am not altogether certain that Smith v. Maryland was decided correctly, but let's assume for a minute it was decided correctly and just address the fact that it is a decision that remains on the books.

It is precedent that is followed throughout the courts of the United States. That is fine. Let's just accept the fact that it is on the books. But it is very, very different--not just quantitatively different but also qualitatively different--when you are dealing not with one target of one single criminal investigation and not just with maybe a few weeks of calling records but when you are dealing with 5 years of calling records not on one person, of one target in one criminal investigation by one group of law enforcement officers, but 300 million people stretched out over 5 years.

That calling data becomes more significant, moreover, when Americans become more attached to their telephones, when their telephone isn't something that is just plugged into the wall but something that is carried with them every moment of every day. This, by the way, adds to the potential list of metadata that could be collected because of course many people now have telephones that track their location. I don't see any reason why, based on the interpretation of section 215 of the PATRIOT Act and the interpretation of the Fourth Amendment that the NSA has put forward, they couldn't start collecting the location data as well, which would further undermine privacy issues.

So Smith v. Maryland, whether you like it or not, is precedent. It is precedent that is followed by the courts in America, but it is not the end of the story. It certainly doesn't get you over the hump when it comes to this type of collection. Saying that what was covered by Smith v. Maryland is the same thing as what the NSA is trying to do here is a little bit like comparing a pony ride to a ride to the Moon and back. They both involve some form of transportation, but they are worlds apart, drastically different, and so much so that they can't really even be compared.

Our technology has changed dramatically over the years--so much so that if we don't stop and think about it, we might not even recognize it.

BREAK IN TRANSCRIPT

So our technology does change, and as our technology changes, we have to take that into account. Well, our technology has changed now to the point where our government can learn all kinds of personal facts about us through metadata, through the type of metadata involved here, and it is only getting more and more this way every single day as we transact more and more of our day-to-day business over our telephones and as our telephones become more sophisticated, more portable, and more capable of processing more and more data.

The text of the Fourth Amendment I quoted just a few minutes ago is still very relevant today. The fact that the Fourth Amendment refers specifically to the right of the people to be secure in their persons, their houses, and their papers and effects is still relevant today and should remind us of the fact that our persons, our houses, and our papers and effects more and more really become a part of this--they really become a part of our telephones.

Our papers are not always physical papers. More and more, they are not. Increasingly, we are even asked to sign documents that previously would have been physically signed on a hard copy, a stack of papers--increasingly you can do business transactions without ever handling a physical paper. Increasingly, you can do those things electronically. People often prefer to do it that way. It saves time. It saves money. But as more and more of our lives are played out on these portable digital devices, it becomes more and more important for us to be remember there are Fourth Amendment ramifications when the government wants to get involved in what we do on those same devices.

That is why it is not really fair any more to simply rely reflexively on Smith v. Maryland to say this is all constitutional, nor is it fair to say that your phone company already has this record, so there is no reason why the government shouldn't have it. I actually don't even see that comparison.

Some people think this is somehow persuasive. I don't find it persuasive at all. There is a world of difference between allowing a private business with which you have voluntarily chosen to interact to have your business records, particularly when it is a private business that you want to have that information so that private business can keep track of how much you owe them or how much they owe you--there is a world of difference between a private business entity having those records and the government having those records.

The worst thing that a private business can do is perhaps send you too many emails that you don't want asking you for more business or maybe it can give some of your personal data to somebody else who will in turn make phone calls you don't want to receive or send you emails you don't want to receive.

That private business has no ability to put you in prison. That private business has no ability to levy taxes on you. That private business has no ability to make your life a living hell in the same way that your government has the ability to do those things--not just the ability but, lately, with increasing frequency, with strong and seemingly irresistible inclination.

This is not a victimless offense against the spirit and, arguably, the letter of the Constitution. These kinds of things have real-world ramifications. They ought to be troubling to all of us, and we ought to want to do something about them.

So for these reasons, Senator Paul, I would ask you, don't you think it would be much better to put this bill on the floor now and allow for an open amendment process, one in which you and each of our other colleagues could have an opportunity to provide input, to try to improve the legislation, and to try to do something meaningful with this legislation, rather than just simply ignore it, pretend it didn't exist, sweep it under the rug or wait until we are up against a cliff--this critical cliff between when the Senate, much to my chagrin and the chagrin of many of our colleagues, is set to adjourn and leading up to the moments when this program is set to expire? Wouldn't we be better off to take this up and debate this under the light of day, under the view of the American people?

BREAK IN TRANSCRIPT

Source