USA FREEDOM Act of 2015
Floor Speech
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Mr. LEE. Mr. President, I first want to thank my friend and colleague, the senior Senator from Vermont, for his tireless work on this issue. Senator Leahy and I, along with Senator Heinrich and so many others who are participating in this process, have worked together to develop a legislative strategy that is both bicameral and bipartisan. This legislation we are about to vote on today was passed with an overwhelming supermajority in the House of Representatives--338 votes to 88 votes. This is a testament to the fact that in so many instances there is more that unites us than divides us in today's political environment. This is an example of the type of win-win situation we can develop.
This bill protects America's national security, and it does so in a way that is respectful of the privacy interests and both the letter and the spirit of the Fourth Amendment.
The American people understand intuitively that it is none of the government's business whom they are calling, when they are calling them, who calls them, and how long their calls last. The American people intuitively understand what graduate researchers have confirmed, which is that this type of calling data--even just the data itself, not anything having to do with recorded conversations, just the data--reveals a lot about an individual, about his or her political preferences, religious views, marital status, the number of children the person may have, and all kinds of interests that are none of the government's business.
Moreover, the way this data is collected is inconsistent with the way our government is supposed to operate. Rather than going out and demonstrating some type of connection between the data set requested and a particular investigation, under the current system the government simply issues orders saying: Send us all of your data. Send us all your data on all calls made by all of your customers. We want all of it. If that means 300 million phone numbers, we want all of that regardless of its connection to any suspected terrorist operation.
That is wrong. Our bill would change that, and it would change it quite simply by requiring the government to request information connected to a particular phone number--a phone number that is itself suspected of being involved in some type of terrorist activity.
This bill represents a good compromise. This bill represents reason. This bill would protect America's national security while also protecting privacy. This bill, in so doing, recognizes that our privacy is not and ought not ever be deemed to be in conflict with our security. Our privacy is, in fact, part of our security.
We are, unfortunately, considering this bill with too little time left. In effect, we are considering this bill after the PATRIOT Act provisions at issue have expired. This is unfortunate. It was unnecessary, and it represents a longstanding bipartisan problem within the Senate--a problem pursuant to which we establish cliffs. We establish these artificially designed deadlines.
We have known about this particular deadline for 4 years. For 4 years, we knew these provisions were going to expire. We should have taken up these provisions far in advance of now. Many of us tried. We did so unsuccessfully. Senator Leahy and I and others have been working on this legislation for years. We have been ready, willing, eager, and anxious to do so, and we haven't been able to do so until very recently. Now, because of the fact that these provisions have expired, it is incumbent upon us to move these things forward in all deliberate speed.
Whatever the outcome of this vote and of those votes which will follow later today, the American people deserve better than this. Vital national security programs that touch on our fundamental civil liberties deserve a full, open, honest, and unrushed debate. This should not be subject to cynical, government-by-cliff brinksman-Ðship. If Members of Congress--particularly Republican Members of Congress--ever want to improve their standing among the American people, then we must abandon this habit of political gamesmanship.
Finally, it is time for us to pass this bill--this bill which passed overwhelmingly in the House of Representatives, this bill which carefully balances important interests the American people care deeply about.
I urge my colleagues to support this legislation.
Mr. President, this week the Senate will consider the USA FREEDOM Act of 2015, H.R. 2048. I am proud to have introduced the Senate companion to this bill, S. 1123, along with Senator Patrick Leahy, ranking member of the Senate Judiciary Committee. We have worked closely with our partners in the House of Representatives, House Judiciary Committee Chairman Bob Goodlatte, Ranking Member John Conyers, and Congressmen Jim Sensenbrenner and Jerrold Nadler.
Since revelations in June 2013 that the National Security Agency was secretly and indiscriminately collecting Americans' telephone records, Senator Leahy and I have worked together on legislation to end this mass surveillance program and to enact greater transparency and oversight over the government's intelligence gathering operations. The USA FREEDOM Act of 2015 is the result of that 2-year collaboration, and it contains strong reforms. Most importantly, it would definitively end the NSA's bulk collection of Americans' telephone metadata and ensure that the Foreign Intelligence Surveillance Act pen register statute and the national security letter statutes cannot be used to justify bulk collection.
On May 13, 2015, the House passed the USA FREEDOM Act by an overwhelming, bipartisan 338-to-88 vote. More than 80 percent of House Republicans and 75 percent of House Democrats voted for the bill, including the chairmen and ranking members of the House Judiciary and Intelligence Committees, as well as the leadership of both parties.
The resounding vote in the House is a direct result of the commonsense and meaningful reforms contained in the bill. It is also a testament to the will of the American people, who have been unequivocal in their demand for reform and their demand that the NSA stop the indiscriminate collection of their private records.
As our colleagues in the Senate consider the USA FREEDOM Act of 2015, Senator Leahy and I want to detail the extensive legislative process undertaken to develop this bill and provide additional clarity on the bill's provisions.
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Mr. LEE. Of course, the USA FREEDOM Act of 2015 was not introduced in a vacuum. Nearly 2 years ago, on June 5, 2013, the Guardian newspaper published an article and posted a classified FISA Court order revealing that the U.S. Government had been engaging in the bulk collection of Americans' telephone metadata. One day later, on June 6, 2013, the Washington Post published an article and posted further classified information about a separate government surveillance program called PRISM involving the collection of the contents of Internet communications. The administration subsequently acknowledged that the NSA's bulk collection of telephone metadata was being conducted pursuant to section 215 of the USA PATRIOT Act. The NSA's PRISM program to collect the contents of Internet communications of certain overseas targets was being conducted pursuant to section 702 of FISA, which was enacted as part of the FISA Amendments Act.
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Mr. LEE. It did. On May 7, 2015, a three-judge panel from the U.S. Court of Appeals for the Second Circuit unanimously concluded that the NSA's bulk collection program is illegal. The court held that section 215 of the USA PATRIOT Act does not authorize bulk collection of Americans' private records and roundly rejected the argument that all of our phone records can be ``relevant'' to any particular authorized investigation.
In ACLU v. Clapper, the Second Circuit provided a detailed statutory and legal analysis of section 215 and the bulk collection program. It stated that the government's ``expansive'' interpretation of ``relevance'' in the context of Section 215 ``is unprecedented and unwarranted.'' The court further stated:
The interpretation that the government asks us to adopt defies any limiting principle. The same rationale that it proffers for the ``relevance'' of telephone metadata cannot be cabined to such data, and applies equally well to other sets of records. If the government is correct, it could use §215 to collect and store in bulk any other existing metadata available anywhere in the private sector, including metadata associated with financial records, medical records, and electronic communications (including e-mail and social media information) relating to all Americans.
Such expansive development of government repositories of formerly private records would be an unprecedented contraction of the privacy expectations of all Americans.
The court also rejected the government's attempt to compare the NSA's section 215 orders for bulk collection of telephony metadata to grand jury subpoenas, citing the expansive scope and breadth of the information requested. The court correctly noted:
The sheer volume of information sought is staggering; while search warrants and subpoenas for business records may encompass large volumes of paper documents or electronic data, the most expansive of such evidentiary demands are dwarfed by the volume of records obtained pursuant to the orders in question here. . . . The government can point to no grand jury subpoena that is remotely comparable to the real-time data collection undertaken under this program.
While the Second Circuit held that the NSA bulk collection program was illegal, it did not issue a preliminary injunction to enjoin the program. The Second Circuit remanded the case with instructions for the district court to consider whether an injunction was appropriate in light of the upcoming June 1, 2015, expiration of section 215 and ongoing efforts in Congress to enact legislation before the sunset.
As both Senator Leahy and I have mentioned, the USA FREEDOM Act of 2015 passed the House of Representatives less than a week later by an overwhelming and bipartisan vote of 338 to 88.
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