Ensuring Tax Exempt Organizations the Right to Appeal Act

Floor Speech

BREAK IN TRANSCRIPT

Mr. PAUL. Mr. President, there comes a time in the history of nations when fear and complacency allow power to accumulate and liberty and privacy to suffer. That time is now. And I will not let the PATRIOT Act--the most unpatriotic of acts--go unchallenged.

At the very least, we should debate. We should debate whether we are going to relinquish our rights or whether we are going to have a full and able debate

over whether we can live within the Constitution or whether we have to go around the Constitution.
The bulk collection of all Americans' phone records all of the time is a direct violation of the Fourth Amendment. The Second Appeals Court has ruled it is illegal.

The President began this program by Executive order. He should immediately end it through Executive order. For over a year now, he has said the program is illegal. Yet, he does nothing. He says: Well, Congress can get rid of the PATRIOT Act; Congress can get of the bulk collection. Yet, he has the power to do it at his fingertips. He began this illegal program. The court has informed him that the program is illegal. He has every power to stop it. Yet, the President does nothing.

Justice Brandeis wrote that the right to be left alone is the most cherished of rights, most prized among civilized men. The Fourth Amendment incorporates this right to privacy. The Fourth Amendment incorporates this right to be left alone.

When we think about the bulk collection of records, we might ask, well, maybe I am willing to give up my freedom for security. Maybe if I just give up a little freedom, I will be more safe.

Most of the information that comes on whether you are safe comes from people who have secret information you are not allowed to look at. So you have to trust the people--you have to trust those in our intelligence community that they are being honest with you, that when they tell you how important these programs are and that you must give up your freedom, you must give up part of the Fourth Amendment--when they tell you this, you have to trust them.

The problem is, we are having a great deal of difficulty trusting these people. When James Clapper, the head of the intelligence agency, the Director of National Intelligence, was asked point blank, are you collecting the phone records of Americans in bulk, he said no. It turns out that was dishonest. Yet, President Obama still has him in place.

So when they say how important these programs are and how they are keeping us safe from terrorists, we are having to trust someone who lied to a congressional committee. It is a felony to lie to a congressional committee, and nothing has been done about this.

About a year ago, we began having this debate because a whistleblower came forward and said: Here is a warrant for all of the phone records from Verizon.

You say: Well, maybe they have evidence that people at Verizon were doing something wrong.

There is no evidence. This is that they want everyone's phone records.

I don't have a problem with going after terrorists and getting their records, but you should call a judge and you should say the name of the terrorist, and then you get their records as much as you want.

If I am the judge and they ask me for the Tsarnaev boy's records--the Boston Bomber--the Russians had investigated him. He had gone back to Chechnya. Yet, nobody asked for a warrant to look at his stuff. We didn't even know he went back to Chechnya. And then we had the disaster at the Boston Marathon.

I would make the argument that we spend so much time making the haystack bigger and bigger that we can't find the needle because the haystack is too darned big. We keep making it bigger and bigger, and we are taking resources away from the human analysts who should be looking and seeing when Tsarnaev travels outside of our country.

We recently had another terrorist travel from Phoenix to Texas. We had arrested him previously. My guess is there was sufficient cause--probable cause--for a real warrant to look at his activities, and we should. But I don't think we are made any safer by looking at every American's records.

In fact, when this came up, the government said: Well, we have captured 52 terrorists because of this. But then when the President's own privacy commission looked at all 52 of them, there was a debate about whether one had been aided but not found by these records and would have been found by other records.

We have to decide as a country whether we value our Bill of Rights, whether we value our privacy, or whether we are willing to give that up to feel safer, because I am not even sure you really can argue that we are safer, but people will argue that they feel safer. But think about it. Is the standard to be that if you have nothing to hide, you have nothing to fear but that everything should be exposed to the government, that all of your records can be collected?

Some will say these are just boring old business records. Why would you care if they could find out who you called and how long you spoke on the phone? Well, two Stanford students did a study on this. They got an app and they put the app on the phone--voluntarily--of 500 people. These people then made phone calls. All they looked at was how long they spoke--metadata--and whom they spoke to, the phone number to which they were connected. What they found was that without any other information, 85 percent of the time they could tell what their religion was; more than 70 percent of the time they could tell who their doctor was; they could tell what medications they took; they could tell what diseases they had. The government shouldn't have the ability to get that information unless they have suspicion, unless they have probable cause that you committed a crime.

When they looked at this, the appeals court was flabbergasted that the government would make the argument that this was somehow relevant to an investigation--because that is what the standard is. Under the Constitution, the standard is probable cause, which means there is some evidence or suspicion that you have done something illegal. But the standard now is relevance, which means, is it relevant to an investigation? But the court said that even that looser standard of relevance completely destroys any meaning of any words if we are going to say every American's phone record in the whole country is somehow relevant to an investigation.

But it gets worse. They don't even have to prove it. The government says to the court that they think it is relevant, but there is no challenge and there is no debate. It is just taken at face value--or at least it was until this court ruling was appealed. So we now have the second appeals court that said this bulk collection of phone records is illegal.

There are many different programs going on. This is the only one we know about where our government is collecting our records, and the only reason we know about it is not because the government was honest with you--the government was dishonest. The Director of National Intelligence tried to basically lie to the American people and say it didn't exist. So we know about this one, but what other programs are out there?

There is something called Executive Order 12333. There are some who believe this is just the tip of the iceberg, the bulk collection; that there is an enormous amount of data being collected on people through this other program.

One question is, if there is no Fourth Amendment protection to your records, are they collecting your credit card bills? I don't know the truth of that. I would sure like to know. I don't know whether to trust their answer if I asked them, if they will be honest with us and say are they collecting our credit card records.

People might say: Well, your credit card records are just boring old business records. Why would you care?

But think about it. If the government has your Visa bill, they can tell whether you drink, whether you smoke, what restaurants you go to, what your reading material is, what magazines or books you read, what doctors you see, what medicines you buy? Do you buy medicine? Do you gamble? All of these things can be determined.

Not only can they determine stuff directly from your phone bill and directly from your Visa bill, they now have the ability to merge all of this information. Apparently, they have the ability to collect your contact lists, and sometimes they are collecting this in a way that is somewhat nefarious.

We are supposed to be spying on foreigners--foreigners who might attack us. I am all for that. But what happens is there is a lot of data that goes in and out of the country. In fact, sometimes an e-mail from New Jersey to Colorado might go through a server in Brazil. Once it gets to a server in Brazil, they can not only look at your metadata--how long and whom you talked to--the content is now available. It all gets scooped up. It is all being analyzed. They are doing the social network of who your friends are. Some have said this could potentially have a chilling effect on the First Amendment.
There was a time in our country not too long ago, in the lifetime of most of us, when if you called the NAACP, you might not want your neighbors to know or if you were a member of the NAACP, you might not want your neighbors to know or if you were calling the ACLU or a member of the ACLU, you might not want your neighbors to know. It can have a chilling effects on your expression of your speech, whom you associate with, and whether you are fearful to have association with people because you are fearful that knowledge might be known by the government.

People say: Well, certainly that would never happen.

During the civil rights era, many of the civil rights leaders were spied upon illegally by the government through illegal wiretaps.

Many Vietnam war protesters were also spied upon illegally by the government. The reason we have the Fourth Amendment is to have checks and balances. Everything that is great about our country is checks and balances.

Let's say we have a rapist or a murderer in Washington, DC, today. Let's say it is 3:00 in the morning and the police come to the house. They think the rapist or murderer is inside. They do not just break the door down. If there is no commotion, no noise, no imminent danger, they stand outside and get on their cell phone and call a judge. Almost always the judge grants a warrant. Then the police go in.

But why do you want that to happen? Sometimes people come up to me and they say ``I am a policeman'' or ``I work for the FBI.'' Many of my friends are policemen and work for the FBI, and they say ``Don't you trust us?'' It is not about the individual. Laws are not about whether we trust one person or your brother is a policeman and your brother would never do anything wrong. It is not about your brother. It is not about your friend. It is about the potential for there to be a rotten apple, someone who would take that power and abuse that power. We have laws not for most of us. It is for the exception. It is for something out of the ordinary. But it is also to prevent systemic bias from entering into the situation. For example, there was a time in the South when it might have been that a White person from the government might have decided they were going into the home of a Black person just because of racial bias. You get rid of bias by having checks and balances, by always saying you have to ask somebody else for permission.

When we were leading up to the war for our independence in about 1761, I believe, James Otis was arguing before the courts. He was arguing against something called the writs of assistance. A writ of assistance was a type of warrant, but it was a generalized warrant. No one's name was on it; It just said: You are welcome to search anybody's house to make sure they are paying the stamp tax.

Do you wonder why the Colonists hated the stamp tax? It was not just the tax; it was the fact that the government could break the door down, come in, and rifle through their papers. Writs of assistance were something called a general warrant.

This same battle had gone on in common law in England and developed as one of our precious rights that we actually kept from the English tradition.

John Adams wrote about James Otis fighting against these general warrants, and he said it was the spark that led to the American Revolution. That is how important this is.

The Fourth Amendment was a big deal to our Founders. The right to privacy, as Justice Brandeis said, the most cherished of rights, is a big deal. We should not be so fearful that we are willing to relinquish our rights without a spirited debate.

The debate over the PATRIOT Act, which enshrines all of this and got this started, goes on about every 3 years or so. It has a sunset provision. It is set to expire in the next few days. But we are mired in a debate over trade. There is another debate over the highway bill. And the word is that we will not get any time to actually debate whether we are going to abridge the Fourth Amendment, whether we are going to accept something that one of the highest courts in our land has said is illegal. Are we going to accept that without any debate?

I, for one, say there needs to be a thorough debate, a thorough and complete debate about whether we should allow our government to collect all of our phone records all of the time.

In England, about the time of James Otis, there was another man by the name of John Wilkes. I learned about this story in reading my colleague Senator Lee's book recently. John Wilkes was a rabble-rouser. He was a dissenter. Some called him a libertine. I do not know about his morals, but I know he was not afraid of the King.

The King was becoming more and more powerful at that time. That is one of the complaints we had as well. So John Wilkes began his own newspaper. It was called the North Briton, and he labeled it with numbers. The one at the time became the North Briton No. 45. It became so famous throughout England that it was also part of our idiom, part of our language in the United States. Everybody knew what 45 was if you mentioned it. But he wrote something about the King. He basically wrote what would be an op-ed in our day. He made the mistake of sort of saying that the King's behavior or the Prime Minister's behavior was equivalent to prostitution. That did not make the King very happy, so the King wrote out a warrant for the arrest of anybody who had to do with the writing of this North Briton No. 45. But the warrant did not have anybody's name on it. It was a generalized warrant.

He said: Arrest anybody.

So they broke down John Wilkes' door. They rifled through and ruined the contents of his house, arrested him, put him in irons, and took him to the Tower of London. They did the same to 49 other people. But John Wilkes was not about to take this lying down, so John Wilkes actually then decided that he would sue the King.

I tried doing the same thing. I tried suing the President, and it has not gone so well. But the thing is that everybody ought to think they have the ability and the equality to sue even their leaders.

So he sued the King, and something remarkable happened. This was in the early the 1760s. When he sued the King, he actually won. I think the award was like 1,000 pounds, which would be a significant sum of money for us in today's terms. It was a big victory. It was part of the discussion going on simultaneously over here with James Otis. It was a big deal.

So often my party does such a great job talking about the Second Amendment and the right to bear arms. I am all for that. But the thing is, I do not think you can adequately protect the Second Amendment unless you protect the Fourth Amendment, the right to privacy. Your house is your castle. The right to not have your castle invaded is so important.

I will give an example. A lot of people think we will be safer if we collect gun records. A few years ago, they collected all the gun records and they had them in Westchester County, near New York City. A newspaper decided they would publish them. They really did not think this through. But you can see the danger of what happens when the government has records and then releases them to everybody.

Imagine a woman who has been abused or beaten by her husband and has left him. She lives in fear of him finding her. Now the registration comes out and says where she lives and that she has a gun or, worse yet, where she lives and that she does not have a gun.

Think about prosecutors and our judges. I know many of them who put bad people away, and many of them have concealed carry. Many of them travel to work. The security meets them in the parking lot. They go to work, but they worry. We have had sherifs and we have had prosecutors killed in Kentucky because the criminals were angry that they were locked up.

We do not want all of our records by the government to be put out there in public for everybody to know where we live and whether we have a gun.

You can see the issue of privacy is not a small issue. It is a big issue. It was incredibly important to our Founding Fathers.

Some have said it is too late to even get this back. There have been articles written in the last few weeks that say that whether or not the PATRIOT Act expires, the government will just keep on doing what they are doing. In fact, there is a provision in the PATRIOT Act that says any investigation already begun before the deadline can go on in perpetuity.

The other thing is that there are people now writing--John Napier Tye, who was the Internet watchdog for this program, wrote that he believes that Executive Order 12333 is really allowing all this bulk collection under what the President says are article II authorities.

Article II gives the President and the executive branch different powers, but these are not unlimited powers. Some think they are. Some say the President has the absolute power when it comes to war. Article II actually comes after article I. In article I, section 8, the President was told he does not get to initiate war. The most basic of powers with regard to war were not actually given to the President; they were given to Congress.

What is sad about this, what is going on now is that Congress has not shown sufficient interest in what the executive branch does on a host of things, whether it be regulation, whether it be the enormous bureaucracy, but really so much power has shifted and gone from Congress and wound up in the executive.

It is the same way with intelligence. We have intelligence committees, but the question is, Are they asking sufficient questions? There are some. Senator Wyden has been a leader in this. He and I have worked together. He really has been the leader because he has been on the Intelligence Committee. He has more information, really, than the rest of us do, but he at times has been hamstrung because once you know information, if it is told to you in a classified setting, you are not allowed to talk about it. Sometimes it actually makes sense, if you want to speak out, not to actually learn through the official channels but to read on the Internet because if you learn about it through official channels, you cannot say anything about it even if the government is lying about it.

We are talking about an enormous amount of information. We are talking about all of your phone records all of the time.

Recently, there were some complaints by people in the newspaper. They said: Well, the government is really only getting one-third of your records; they are not getting enough of your records. Some want them to get more of your records.

The objective evidence shows, though, that we really have never gotten anyone independently; we have not found any terrorist independently of this. But still some people are so fearful, they are like: How can we get terrorists? We will be overrun with terrorists, and ISIS will be in every drugstore and in every house in America if we do not get rid of the Constitution, if we do not let the Fourth Amendment lapse, and if we do not just let everybody pass out warrants.

That is what we do under the PATRIOT Act. The PATRIOT Act allows the police to write their own warrants. This is one of the fundamental separations we did with the Fourth Amendment. This was probably the most important thing we did, to separate police power from the judiciary, to have a check and a balance so you would never get systemic bias, so you would never get political or religious or racial bias in your judicial system. We separated these powers.

We now let the police write their own warrants. It is a special form of police. It is the FBI, but they are domestic police. The FBI is allowed to write their own warrants. These are called national security letters. They do not have to be signed by a judge. There is no probable cause. If they come into your house, there is no ability for you to complain. In fact, sometimes they are now coming into our houses without us knowing about it. This is called a sneak-and-peek warrant. Like everything else, the government says we will be overrun with terrorists if we do not let the government quietly sneak into our house when we are gone and put in listening devices, search through our papers and read all of our stuff while we are gone.

They do not have to have probable cause necessarily for these. It is a lower standard. But we are letting the FBI write this without a judge reviewing it.

I have a friend who is an FBI agent. I play golf with him. He is like: Don't you trust me? I do trust him. I do not trust everybody.

Madison said that if government was comprised of angels, we would not need restrictions, we would not need laws. Patrick Henry said that the Constitution is about restraining the power of government. It is not about the vast majority of good people who work in government. It is about preventing the bad apple. It is about preventing the one bad person who might get into government and decide to abuse the rights of individuals.

Some say: Well, the NSA has never abused anyone's rights. That may or may not be true. They are giving us the information. We do not get to independently look at the information. They are telling us. It is the same group who says they were not doing any bulk collection of data at all. But even if we presume they are telling us the truth, it is not really the end of the story because the story should be that we do not want to allow the abuse of power to happen.

As the debate unfolded the first time for the PATRIOT Act, something occurred that happens frequently around here. There is not enough time. Hurry up, hurry up, there is not enough time.

It is kind of like the debate right now.

Unless we insert ourselves at this moment, I am not sure we will have any debate on the PATRIOT Act. It has been set to expire for 3 years. We have known it was coming, and the question is, Do we not have enough time because we just don't care enough? Are we going to relinquish our rights or constrict our rights to the Bill of Rights, even though we know it is coming up and that we have to do something else that occupies all of our time?

Senator Wyden and I have a series of amendments. Our amendments would try to reform some of this. Our amendments would say that NSLs, national security letters, cannot just be signed by the police, that they would have to go to a judge.

People argue: Well, how would we catch terrorists? The same way we catch other people who are dangerous, such as murderers and rapists, anybody in our society. In fact, when you look at the criminal process for criminal warrants, warrants are almost never turned down. But just that simple check and balance of having the police call a judge is one of the fundamental aspects of our jurisprudence, and we gave it up so quickly on the heels of 9/11 because of the fear.

The thing is, when the PATRIOT Act came forward, most people didn't even read it. There was a committee bill and this and that and there was a last-minute substitution. It was given hours, and it was simply passed in a spate of fear.

As we look at what happened at that time, I think we now have the ability to look backward and say: Is there another way? When we start with the doctrine that a man's house or a woman's house is their castle, it was a very old notion, maybe even dating back to the times of Magna Carta. Our castle and our papers are a little bit different now, and the Supreme Court has not quite caught up to where we are technologically. They are getting there, but this really needs to be debated and discussed at the Supreme Court level because the thing is we don't keep our papers in our house anymore. In fact, we have gone to such a paperless society that 90 percent of your paper--or if you are under 30 years old, 100 percent of your paper--is held somewhere else.

The question we have to ask is: Do you retain a privacy interest in your records? When the phone company holds your records, do they have an obligation to keep them private? Do you retain a privacy interest? If the government wants the records from the phone company, should they be allowed to write the name Verizon and get all of the records from Verizon? I, frankly, think that if John Smith has his phone service with Verizon and he is a terrorist, the warrant should say John Smith and go to Verizon, but it is an individualized warrant. I don't think we should have generalized warrants.

There are some who want to replace the bulk collection of records with a different system where the government doesn't hold the records, but the phone companies hold the records. I am also concerned about this for one big reason: The recent court case has now said the PATRIOT Act does not justify the collection of records, that it is actually illegal. I am concerned that since the court is now saying section 215 doesn't allow a bulk collection, that in trying to reform this, what is called the USA FREEDOM Act, we will actually be granting new power to section 215 that the court says is not there. The court is saying that it stands logic on its head to say relevance means nothing, that everybody's records in the whole country could be relevant.

We have even changed, over time, the investigations and whether there is a full-blown investigation at the beginning of an investigation. Who gets to decide or define what an investigation is? The bottom line is that we look at this, and as we move forward, we have to decide whether our fear is going to get the better of us.

Once upon a time, we had a standard in our country that was innocent until proven guilty. We have given up on so much. Now people are talking about a standard that is: If you have nothing to hide, you have nothing to fear. Think about it. Is that the standard we are willing to live under? Think about whether you believe you still have a privacy interest in the records that are held by the credit card companies, your bank or the phone company.

In the PATRIOT Act, they did something to make it easier to collect records and to override your privacy agreement. If you read the nitty-gritty of any of these agreements that you have when you use a search engine or when you are on the Internet, you do voluntarily say that your information will be shared in an anonymous way, but they promise they will not give your name to somebody.

The phone company has the same sort of privacy agreement, but what has happened through the PATRIOT Act is that we have given them liability protection. At first blush, you might say we have too many damn lawsuits. I am kind of that way. I am a physician. We have way too many lawsuits. I am for cutting back on lawsuits. But at the same time, if you give the phone, Internet or credit card company immunity to ignore your privacy agreement, they will.

Instead of the government storing billions and billions of records in Utah, the new system is still going to store billions and billions of records in the phone company, but still the question is: Will we access them in a general way? It says we are going to look at a specific person, but if you look at the way ``person'' is defined, a person could be a corporation. I don't think you should have a warrant that says Verizon and gets all the records for all of their customers.

The other thing that has been going on that they have not been completely honest with, and we may have some data on, is that the government is going inside of the software. They are asking companies such as Facebook or demanding that companies such as Facebook give them access through their source code so the government can get in. Now, to Facebook's credit, they are fighting them, and I think more companies are now standing up and trying to fight against this. But in a nefarious way, the government is going into the code of Facebook and then inserting malware into other people's Facebook and spreading it throughout the Internet.

The government is also looking at communications between two nodes. Let's say you communicate with Google and it is encrypted, but then when Google has a data center that talks to another data center which is nonencrypted, the government just hooks up to a cable and siphons off records. There is a danger that you will have no privacy left at the end of this.

The Fourth Amendment is very specific. The Fourth Amendment says you have to individualize a warrant and put a name on the warrant. You have to say specifically what records you want, you have to say where they are located, and then you have to ask a judge for permission.

The sneak-and-peek warrant I was talking about before is section 213. It is now permanent law. We don't even get a chance to talk about it. We could repeal it, and I will have an amendment to repeal it. This is where the government goes in secretly and says: Well, we need this lower standard because terrorists will get us if we don't. Well, we have now had it on the books for a decade and do you know who they are getting? Drug people--people who are buying, selling or using drugs. That is a domestic problem, which also leads me to something else about the PATRIOT Act that really bothers me.

When we first started talking about the standards of the PATRIOT Act and going from probable cause, which is what the Constitution has, to articulable suspicion, down to relevance, we said: Well, we are going to lower standards because we are going after foreigners. They are not Americans and they are not here. We are going to lower the standard, and really there could be some debate in favor of that.

When we first did it, we said we could not use that information for a domestic crime. I will give an example. I asked one of the intelligence folks at one time to answer a question and was dissatisfied with the response. Let's say the government comes in through a sneak-and-peek warrant. They don't tell you that they are in your house. Guess what. They find out you are not a terrorist, but you have paint in your house which you bought through your office business expense, and you are painting your house, which is a tax violation. It is a domestic crime, but they got into your house through false pretenses. They said you were a terrorist, but they were wrong. However, they found out you were not being perfectly honest with your taxes. They have gotten in through a lower standard.

Ultimately, if we let them collect all of your records and we let a domestic crime be prosecuted by this, we could have the government sifting through your credit card records because they say the Fourth Amendment doesn't protect records, including your phone records--not the content, just all of this data. After they put it together and mesh it, they decide, by looking at your digital footprint, that maybe you are somebody who runs traffic lights.

Now we are taking something that was intended to capture foreigners and we will capture people domestically and prosecute them for domestic crimes, the specific thing they promised us they would never do. So things morph and get bigger and bigger.

We could have a valid debate about whether we have gone too far, but we should at least have a debate. Shouldn't we get together and say: Let's have a debate. Let's devote all week to this.

For a while, I have asked to have a full day and have five or six amendments that Senator Wyden and I could put forward and have a full-fledged debate over whether the bulk collection of our records is something we should continue to do.

I think if you look at this and say: Where are the American people on this, well, there has been poll after poll. Well over half the people--maybe well over 60 percent of the people--think the government has gone too far. But if you want an example of why the Senate or Congress doesn't represent the people very well or why we are maybe a decade behind, I would bet that 20 percent of the people here would vote to just stop this--to truly just stop it--at the most; whereas, 60 to 70 percent of the public would stop these things.

You are not well represented. What has happened is that I think the Congress is maybe a decade behind the people. I think this is an argument for why we should limit terms. I think it is an argument for why we should have more turnover in office because we get up here and stay too long and get separated from the people. The people don't want the bulk collection of their records, and if we were listening, we would hear that.

The vote in the House, while I don't think the bill is perfect, and I think it may well continue bulk collection, was over 300 votes to end this program and to say we are no longer going to have bulk collection. Yet it looks like the majority in this body says we still need bulk collection. In fact, the biggest complaint from the majority of this body is that we are not collecting enough records and that we need to collect more records.
Can we have security and liberty at the same time?

I had breakfast with a high-ranking official from our intelligence community maybe 6 months ago, and I asked him: How much information do you get from metadata and how much do you end up getting from a warrant? He said, without question, you get more from a warrant. People talk about whether we can go one hop or two hops. That means if you are suspected of terrorism and you called 100 people--if we look at your records, that is one hop. If we look at the next 100 records, that is a second hop. As you go in, this pyramid gets bigger and bigger until you are talking about tens of thousands of people.

As you get further and further away from the suspect, I see no reason you couldn't keep getting warrants. If they say that warrants are slow and laborious and there is not a judge, put more judges on the court. If they say they need them at 3 in the morning, put the judges on 24-hour alert and you can call them at 3 in the morning. We call judges for a warrant in the middle of the night all across America. I see no reason why you can't have security and the Constitution at the same time.

The President instituted the Privacy and Civil Rights Board. They went through a lot of this, and some of the things they came up with, I think, were truly astounding. The amount of information, I think, is mindboggling--of what is being sucked up in this. There is something called section 702 of FISA, and this has allowed them to collect information on Americans who might have been communicating with a foreigner. You say: Well, that American is probably suspicious. Well, it goes out in ripples and it becomes this enormous amount of--cache of information.

When they looked at some of this recently--the Washington Post looked at this--they found that 9 of 10 intercepted conversations were not the intended target. So I think there was one estimate that in the last year we had 89,000 targets. If you multiply that and say it is only one-tenth of what we actually take, you are now looking at 900,000 records of people who had nothing to do with terrorism. They didn't even really talk to the person. They incidentally talked to a person who talked to the person. It could be the terrorist called Papa John's and you called Papa John's, so now you are in the same phone tree network. That can ripple out in waves. That information should not be collected, it should not be put in a database, and it should not be stored. Ultimately, we are collecting so much information that it is all of your information.

One thing that should concern us about simply going from a system where the government collects all of these records and stores them in Utah to one where the phone company does it--actually some people in the NSA are acquiescing and saying it is not so bad.

That concerns me that the NSA is saying ``not so bad.'' It concerns me that we are still going to have bulk collection.

The debate we really need to have is whether, if someone else is holding your records, if you still have any kind of privacy interest in your records. I personally think your phone records are still partially yours, in a way, or that you have a privacy interest in them. This is going to become very important because your records ultimately--there probably will not even be any records in your house, they will be on your phone, and then your phone records are connected to the company. Who owns them? Do you have a right to privacy in those records? I think you can have security and freedom at the same time, but I think if we are not careful, this is going to get away from us.

When they found out that 9 out of 10 intercepts were actually not the intended target, just ancillary information they picked up, they also found that 50 percent contained email addresses that were U.S. citizens. So let's say you collect a million pieces of information and you are just gathering this up and you are intending to go after foreign targets who might be terrorists, but over half of this information, much of it incidentally gained, is actually U.S. citizens. So this is sort of an end run--they call it backdoor searches--but it is sort of an end run that has gone around the Constitution, gone around the Fourth Amendment, to collect information that we have actually said should be illegal to be collected that way, but we are doing it because we have done an end run around.

Also realize you can send an email from Virginia to South Carolina and it might go over a server in Brazil. If your email goes over a foreign server, all of a sudden, boom, everything is done. The Constitution is out the door. They can collect that, even the content. It is never revealed to you; nothing is ever presented to you. It is all done within the executive branch, with no advocate on your side.

There are several programs that came out through this that are being collected. It is not just the bulk collection. There is a program called PRISM that has been out there for a while and there is another one called Upstream. In PRISM, it is a surveillance program that collects Internet communications of foreign nationals from at least nine major Internet companies.

I think this wouldn't have happened if the Internet companies were not given liability protection. I think what would have happened is they would have said we are violating our obligation to our customers and we are going to fight against this. But the PATRIOT Act even made it worse. The PATRIOT Act made it a crime to reveal that you had been served with a warrant. So we have gone way beyond any typical constitutional mechanisms.

In the Upstream Program, a similar thing happened, but this is when the data is collected as it moves across U.S. junctions. The problem is not so much going after foreign communications but going after incidental and collecting incidental communications that involve American citizens.

John Napier Tye was a section chief for Internet freedom in the State Department's Bureau of Democracy. He was going to give a speech--and I think this is very telling. This is reported in the Washington Post. He had written out his speech and he sent it for review. In his speech, he said: If U.S. citizens disagree with congressional and executive determinations about the proper scope of intelligence activities, they have the opportunity to change policy through democratic process.

And we think, Who could object to that? What would his censors say? How could he possibly say we don't have the right through democratic process to change policies? They had him strike ``through intelligence processes'' because I guess they apparently think we don't have the democratic ability to change these things. The sad truth is it may be true because a lot of this is being done by Executive order.

Executive Order No. 12333 has no congressional oversight. In fact, the question was asked recently of one of the Senate leaders, Will you investigate this? Now, there may well be a secret investigation going on, but there was some indication it was really outside of our purview.

I don't think anything the executive branch does should be outside of our purview. The whole idea of having coequal branches was to have checks and balances. One of the biggest problems I find in Washington is that sometimes the opposition party--if we have a Democratic President and a Republican Congress, you will get a little bit of adversity and a little bit of pitting ambition against ambition and check and balance. But the party that is the same party as the President just doesn't tend to push back, probably for partisan reasons. Now, it is not just the other party; it happens when Republicans are in power also. What happens is the political party that is the same power as the President tends to sort of be open to letting things move on, just letting the President accumulate more power. But I think this should be telling that when he said we could change things through democratic action, President Obama's White House Counsel told him that, no, that wasn't true. He was instructed to amend the line and make a general reference to our laws and policies but to leave out intelligence policies as if we don't really get a say in what they do as far as what information they collect on us.

John Napier Tye goes on to warn us. He says: Unlike section 215, Executive Order No. 12333 authorizes collection of the content of communications, not just metadata, even for U.S. citizens.

So quite often we are told--we were told for years--don't worry, they are not collecting your data; they are just
collecting the data of foreigners. It turns out that wasn't true.

Now, the big thing they tell us is, Well, we are not collecting the content, we are just collecting the numbers. But when we read John Napier Tye, he says the Executive order authorizes collection of the content of the communications also, not just metadata, and also for U.S. persons.

So the question is, If we get rid of bulk collection, will the Executive continue to do it anyway?

The other question is, Why doesn't the Executive stop this? It was started by Executive action and can be ended by Executive action at any time. Where is the Executive? How come the press gives him a free pass just to say Congress needs to fix this? Sure, I messed it up, I broke it; I am doing something that the second appeals court said is illegal, and I am going to keep on doing it until Congress does something. Why don't we see any questions from the press? Why don't we see anybody from the media saying, Mr. President, it is illegal. You started it. You were performing a program that is collecting all of the phone records from all Americans. It has been declared illegal from the second highest court in the land. Why don't you stop? I have not ever heard the question asked of him.

With the Executive order, apparently because this, they say, is article II, and then article II to them means they can do whatever they want without any oversight by Congress, the conclusion by John Napier Tye is that there is nothing to prevent the NSA from collecting and storing all communications. This concerns me.

The President instituted or brought together a group called the Review Group on Intelligence and Communication Technologies. In it, they came forward with some recommendations. Recommendation No. 12 was that all of this data--all of this incidental data that is becoming part of these databases that is collected under these authorities--the Executive order--should be immediately purged unless there is a foreign intelligence component to it. The Review Group further recommended that a U.S. person's incidentally collected data should never be used in a criminal proceeding against that person.

So now we are back to what I was talking about earlier. If you are going to go away from the Constitution, if you are going to say to catch bad guys we can't really have the Constitution, we are going to have to have a bar that is a lot easier to cross that allows us to do kind of what we want, wouldn't you want to exclude American citizens from being convicted or put in jail for a crime under a lower standard? It is kind of like this: The question is, If the government can come in without a valid search warrant, without announcing they are in your house, collect all of your data, would you want them to have hours and hours in your house without any probable cause and then start arresting you for this?

There are rumors we are doing this. There are rumors that intelligence warrants, which are nonconstitutional, which are a lower standard, are being used to get regular criminals. What they do is collect information through data, metadata analysis, all of this, they get enough to be convinced that you are a drug dealer, and then they arrest you by getting a traditional warrant, but they are using information they got illegally to get to you.

Section 213, this whole sneak-and-peak, where they go in without announcing that they have been in your house, 99.5 percent of the people arrested are actually people who committed a domestic crime. They are not terrorists. So we are told you have to have a PATRIOT Act to get terrorists. Yet what we really find is that they are using it in a way that is not honest. They are using a lower standard--a standard less than the Constitution--and they are using that standard then to arrest people for basic domestic crime.

The President's Review Commission in recommendation No. 12 recommended that this incidentally collected data not be used criminally against anybody. They gave their recommendations to the White House. The White House stated that the adoption of these recommendations they requested would require significant changes and indicated it had no plans to make any changes. So the President's own review commission says there is great danger in using a lower, less-than-constitutional standard to collect great amounts of information that can be searched. There is great danger to privacy. There is also great danger to using information collected outside of the Constitution. There is great danger in then using that for domestic prosecution, and the President said he has no intention of any changes.

When I think of this President, it is probably what disappoints me most. There were fleeting times when this President was in the U.S. Senate that he stood up for the Constitution. In fact, there is a quote from the President when he was running for office--there are many quotes--but there was one quote saying that the warrants that are issued by police--national security letters--should be signed by a judge. The very amendment that I will try to get a vote on he seemed to have supported, but now his administration is issuing hundreds of thousands--it starts out with a few, then 47, then a couple hundred, and now it is in the thousands. Any time you give power to government, they love it and they will accumulate more. Any time you give power to government and expect them to live within the confines of the power, they will not live within the confines of power unless you watch them like a hawk. You have to watch them. You have to have oversight.

We are at a point now where we have enormous bulk collection, enormous collection of American citizens' data; one program we know almost nothing about. Yet it goes on with no debate. The Executive order from 1981 has been transformed into a monster with tentacles that reach into every home in our country. The collection of records that is going on is beyond your imagination, and we need to know about it. There needs to be a public debate. It has become even more pressing that we have this public debate because the problem is that we have the President and we have the Congress and we have the intelligence community not being honest with us.

So the fact that the Director of National Intelligence would come to Congress and lie and say they are not collecting this information, and then when they do admit to it say: Oh, by the way, it is working really well. We are capturing all kinds of terrorists--but they hold all the information, and we rely on them to be honest and to present truthful information to us. This is a big problem.

Currently, the courts haven't brought their rulings up to date. The debate has been going on for a long time. In 1928 there was the Olmstead case. The Olmstead case went against those of us who believe in privacy. I believe that case still lingers on, even though it has been reversed.

In the Olmstead case, Ray Olmstead was a bootlegger, and the government decided to eavesdrop on his conversations, but they didn't have a warrant. They could have gotten a warrant. Who knows why they didn't get the warrant, but they didn't get a warrant. But the Court ended up ruling that phone conversations were not protected by the Fourth Amendment. This was a sad day in our history when this happened in 1928.

The dissent in that case was Justice Brandeis. As so often occurs in our history, sometimes the dissent becomes the majority opinion and becomes profound because it was there at the time.

Harlan's opinion, the dissent in Plessy v. Ferguson, is what everybody refers to. Nobody refers to the majority in saying that separate is equal. They were wrong--the same as in the Olmstead case. People remember Justice Brandeis. It is probably one of the most famous quotes in jurisprudence: ``The right to be let alone is the most cherished of rights.'' It is ``the [right] most valued among civilized men.''

We have this debate still sometimes, though, because some conservatives say: There is no right to privacy. I don't see it in the Constitution. And conservatives who argue that there is no right to privacy aren't remembering the 9th and 10th Amendments very well, particularly the 9th Amendment.

The Ninth Amendment says that all the rights aren't listed, but those that aren't listed are not to be disparaged. Even our Founding Fathers worried about this. Our Founding Fathers came forward and they at first thought we would just do the Constitution without the Bill of Rights. Some of them worried. They said: If we do the Bill of Rights, people will think that is all we have. If we list ten different amendments, they will think that is all of our rights. So they finally convinced everybody to go along with it by saying: We will put in the 9th and 10th amendment, with the 10th Amendment limiting the powers, saying only the powers enumerated are given to the Federal Government and everything else is left to the States and the people, respectively. But the Ninth Amendment, which is in many ways sort of the stepchild of our amendments, hasn't been adequately, I think, adhered to or recognized. It says that those rights not listed are not to be disparaged.

Sometimes we have this discussion because some people say it has to be enumerated. I agree completely if we are talking that the powers given to government should be enumerated. They are few--few and limited, the powers given to the government. But it is the opposite with your rights. Your rights are many and infinite. Your rights are unenumerated, and you do have a right to privacy. So while the word ``privacy'' is not in the Constitution, in the Fourth Amendment, though, they do talk a lot about your privacy. It is about your home, that your home is your castle.

The exact words of the Fourth Amendment are:

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 and things to be seized.

The reason why we should worry about whether a warrant is individualized is we have had some tragic times in our history. During World War II we didn't individualize the arrests of Japanese Americans. We didn't say: That is so-and-so who lives in California, and we think they are communicating with Japan and telling our secrets. We indiscriminately rounded up all of the Japanese and incarcerated them.

There have been times in our history when we haven't acted in an individualized manner. It happened throughout the South in the old Jim Crow South. We told people that we were going to relegate them to a certain status based on a general category.

So when we talk about individualizing warrants, we are talking about trying to prevent bias from occurring. Now, bias can occur for a lot of different reasons. I tell people that you can be a minority because of the color of your skin or the shade of your ideology. You can be a minority because of your religion. You can be a minority because you are home-schooled. But the thing is, if you are a minority, if you are a dissenter, if you dissent from the majority, you need to be very, very aware of your constitutional rights. Be very, very aware of the Bill of Rights.

The Bill of Rights isn't so much for the prom queen. The Bill of Rights isn't so much for the high school quarterback. Many people in life always seem to be treated fairly. The Bill of Rights is for those who are less fortunate, for those who might be a minority of thought, deed or race. We have to be concerned about the individualization of our policies or we run the risk and the danger of people being treated in categories.

Right now we are treating every American in one category. There is a general veil of suspicion that is placed on every American now. Every American is somehow said to be under suspicion, because we are collecting the records of every American.

We talk about metadata and whether or how much it means or what the government thinks it can determine from metadata. There are some people who say: Don't worry. It is just your phone logs. It is no big deal. It is just boring old business records. We should be a little bit concerned by the words of one former intelligence officer who said, that ``we kill people based on metadata.'' He wasn't referring to Americans. He was talking about terrorists. But we should be concerned that they are so confident of metadata that they would kill someone.

Instead of our believing that metadata is no big deal and it just should be public information and anybody can have it, realize that your government is so certain of metadata that they would kill an individual over it. That seems to me to make the point that metadata is incredibly

important, if we would make a decision to kill someone based on their metadata.

The Electronic Frontier Foundation has done a lot of work for privacy and deserves a lot of credit. Mark Jaycox writes in an issue from last year that ``it is likely that the NSA conducts much more of its spying power under the President's claimed `inherent' powers and only governed by a document originally approved by Executive order.''

So while we are superficially having a debate over the bulk collection of records that some claim are authorized under the PATRIOT Act, section 215, there is a whole other section that some privacy advocates are worried about that is even bigger.

I had a meeting recently with one of the founders of one of the huge social communication companies, and he told me that he thinks we are missing some of the debate here, because he says everybody is talking about bulk collection of your phone records. He is convinced that there is ever so much more being collected through backdoor channels. These backdoor channels can occur in two ways. They can occur one way by going and looking at foreigners' information and then coming through the backdoor back into our country and looking at Americans' information. That American's information has tentacles and spreads and it becomes this enormous grouping of incidental information. In fact, some have said 9 out of 10 pieces of data pulled in aren't about terrorists; they are just incidental stuff.

What the President's review commission says is we should delete that once we find it is not relevant to an investigation. The amazing thing to me is that even people who support the PATRIOT Act--and I don't; I think the PATRIOT Act lowers the constitutional standards and risks all freedom and our liberty. But even for those who think the PATRIOT Act is fine, they said that the PATRIOT Act never was intended to do this.

So if you want to ask yourself is the government overstepping, even the authors of the PATRIOT Act are now telling us that the overstepping is to such a degree that they think the PATRIOT Act doesn't justify it.

In fact, that is really what the court ruled recently. I had hoped the court would rule that the bulk collection--the grabbing up of all your records--was unconstitutional, but they actually simply ruled that the PATRIOT Act does not sanction it. The PATRIOT Act does not give authority to the government to do this. It is a pretty amazing sort of set of circumstances--that the government has taken something that was intended in one way, completely transformed it, and then when they are rebuked by the court, they are not chastened at all.

I wonder why no one has had the guts or the wherewithal to ask the President why he doesn't stop this now. The President could today listen to this speech on the floor of the Senate, and he could change his mind. He could, this afternoon, with his pen--he says he has his pen and his cell phone--he can immediately stop the bulk collection of data. In fact, all of the alternatives he could continue and he could probably do now. He could also say he is going to collect the data with a warrant. He has all of that power.

Someone should ask the President: Mr. President, why do you keep doing something the court has said is illegal? Why do you continue doing this, and why won't you stop? And how could we possibly think that it is a responsible answer to say: Oh, I will stop when they make me. His own privacy commission says that what he is doing is illegal and should stop.

One of the things that people are worried about is that the government is forcing its way into the code source of different Facebook, Google, and different Internet companies. There are a couple of things that are occurring because of this. If you live in Europe, if you are Angela Merkel or if you are anybody in Europe, you might not want American stuff anymore.

There are already rumors in discussion that billions of dollars--there has been some estimating of over $100 billion--have been lost to where we have been a dynamic leader in software, in hardware, in the Internet. People don't want our stuff because they don't trust us anymore.

One of the reasons they don't trust us is this. We have a group called the Tailored Access Operations that targets system administrators and installs malware while masquerading as Facebook servers. That is a little scary--that if you go on Facebook, somehow malware is getting into your computer and then searching and allowing them to know everything you are doing on your computer. If you have a warrant, to my mind you can do a host of these things, but do it to someone you have suspicion of.

I think we have made the haystack so big that no one is ever getting through the haystack to find the needle. What we really need to do is isolate the haystack into a group of suspicious people and spend enormous resources looking at suspicious people--people for whom we have probable cause. If you think of almost every instance--I mean, go back to 9/11. You will have people come forward with a ridiculous assumption that if we had the PATRIOT Act, we wouldn't have had 9/11. We would have caught those two terrorists in San Diego. And I am like, you mean the two terrorists that were living with a confidential informant for a year?

We knew who these people were. These people were talking to each other. It wasn't a lack of gathering information. All of these incidentals and all of this grabbing up of bulk records isn't what we needed. We needed the CIA to call the FBI. We needed further that FBI call Washington and for somebody to listen to them.

The 20th hijacker, a guy named Moussaoui, was captured a month in advance. We got him in Minnesota. We got his computer.

He was captured because people said--he was from a foreign country, and he was attempting to learn to take off planes but not land them. The FBI agent there ought to be given a Medal of Honor. Instead of giving the Medal of Honor to the head of the FBI, we should have fired the head of the FBI and this FBI agent should have been made the head of the FBI. He wrote 70 letters to his superiors. He caught the 20th hijacker. He should be a well-known name to every American and a hero. He caught the 20th hijacker. He saved lives. But his superior got 70 letters and did squat. I have no idea what happened to his superior, but nobody was fired for 9/11. Instead of firing the people who did not do a good job, we gave them medals. The guy who did a good job, I don't know what happened to him.

(Mr. SCOTT assumed the Chair.)

What we did is we decided we would just collect everybody's information, that we would sort of scrap the Bill of Rights.

I have met a lot of our wounded soldiers. I have met young men who have lost two, three arms, two, three limbs, sometimes four limbs. I have met people who are paralyzed. And to a person, when I ask them ``What were you fighting for?'' they tell me ``The Constitution.'' They tell me ``Our way of life'' or ``Our Bill of Rights.'' Don't you think they would be disappointed to find out that they went over there and they risked life and limb and gave up part of their bodies and they came home, and while they were gone we gutted the Bill of Rights?

Not only did we get it--we can have a difference of opinion on this, but not only did we gut it, we don't have time to debate it. We just willy-nilly say: That is fine. We are not even going to have time to debate it. We have known for 3 years that this debate was coming up. Yet, we squashed a bunch of bills in the last week, and we have no time for debate, no time for amendments, no time to discuss whether we are willing to trade our liberty for security.

Franklin said that those who trade their liberty for security may wind up with neither.

This is a very important debate that we need to have in the public, in the open. We worry about--or some of us worry that just in discussion of bulk records, we may not get to other programs the government just simply will not tell us about. A lot of them are written about, though.

In another episode of the Electronic Frontier Foundation's newsletter, they talk about a program called Muscular. Muscular is a program that is siphoning off the data between different data centers. Yahoo and Google sometimes have--at least did have communication between them that was not encrypted. Your information was encrypted going to the data center, but then between data centers, it was not encrypted, and the government is simply siphoning all this off through Executive order. I do not whether it is foreign. I do not know whether there is incidental American. I do not know what is being collected. We have no oversight, no ability to vote on whether we continue this program or discontinue this program. The companies are sometimes not notified of the warrants or if they are notified of the warrants are told they cannot talk about them; they are gagged. This is the kind of stuff we need to have in the open.

Some of the information people are talking about that the NSA collects on Americans is contacts from your address book, buddy lists, calling records, phone records, emails, and then they put it all into a data--I think the program is called SNAC. They put it all into this data program, and they develop a network of who you are and who your friends are through all of the interconnection of all of your contacts and friends.

If you ask them ``Is any of this protected by the Fourth Amendment,'' the answer you will get is ``The Fourth Amendment does not protect third-party records.'' So, really, we are going to have this go to the Supreme Court.

I said earlier that in the Olmstead case in 1928, Justice Brandeis was in the dissent. The vote was 6 to 3, I believe. The Court ruled that phone conversations have no protection. So we started out with a bad history. The phone was just coming around and becoming commonplace. The Supreme Court said: Your conversations do not have any protection.

This went on for 40-some-odd years until we hit the late 1960s--I think 1968--and the Katz case. Then they say there is an expectation of privacy. So that was a big blow for those of us who believe in privacy, that we finally decided your phone conversations are private and that you have an expectation of privacy and that it should take a warrant with your name on it, individualized, with probable cause.

But we go another dozen years, 10, 12 years, and we get another court case called Maryland v. Smith. Here, though, the Court ruled that your conversation are protected from the government, that the government has to have a valid warrant, but they end up saying that your records don't and that the government is allowed to eavesdrop and pick up and accumulate records about your phone calls without a warrant. I think that was a big mistake.

The case in Maryland v. Smith, though, is one sort of petty criminal and a few records over a few-day period. The question that I would like to see before the Supreme Court would be, is that equivalent to all Americans' phone records all the time? There was at least some kind of investigation going on of this person. They did not do it the right way. I think they should have gotten a warrant.

But in this case, what the government is arguing is that every one of you is somehow relevant to an investigation for terrorism. That is absurd.

Finally, we get to the appellate court last week, and the appellate court says that. They say that, frankly, it is absurd to say that everybody in America is relevant to an investigation. Not only is it absurd, not only is it trifling with your privacy and your right to be left alone, but it takes our eye off the prize.

Why do you think it is that there are not enough human analysts to know that Tsarnaev, the Boston Bomber, was plotting to bomb the Boston Marathon? Why did we not know he got on a plane to go to Chechnya? One of the things that we were told at least in the newspaper was that he had an alternate spelling of his name. So we have been 15 years and we cannot figure out that sometimes these names are spelled a little differently and we did not know he flew back and was radicalized in another country.

I am for spending more money and more time on analysts to investigate and look at the data connected to people of suspicion. But I do not want to spend a penny on collecting all of the information from all of the innocent Americans and giving up who we are in the process. We have to fight against terrorism. We have to protect

ourselves. But if we give up who we are in the process, has it been worth it? Are you really willing to give up your liberty for security? What if the security you are getting is not even real? They said the 52 people who were caught through the bulk collection program--the President's own privacy group investigated and said not one person was captured. There is a possibility of one, but they already had information on him from some other source.

Under the Executive order, we are still not talking about the PATRIOT Act, we are talking about something that nobody knows much about at all. No common Member has been, to my knowledge, informed of what is going on in this program; none of those not on the Intelligence Committee.

But they have something with this information called the special procedures governing communications metadata analysis. This is allowing the NSA to use your metadata--phone records, et cetera, who you call, how long you speak--under the PATRIOT Act and section 702 to create social networks of Americans. So not only are we collecting your data because the government says--and realize this; many of your elected officials are saying this: that you have no right to privacy and the Constitution does not protect your records. They are collecting all of your records, some of it incidental, but they are creating these enormous databanks, but then they are connecting metadata to other metadata to create social networks of who you are.

You should be alarmed. We should be in open rebellion saying: Enough is enough. We are not going to take it anymore. We should be in rebellion saying to our government that the Constitution that protects our freedoms must be obeyed. Where is the outrage?

I tend to think young people get it. Young people--you see them--their lives revolve around their cell phone. They realize that if I want to know about their lives, if I collect the data from their phones--not the content of their phone calls but the data from their phones--that I can know virtually everything about them. Do we want to live in a world where the government knows everything about us? Do we want to live in a world where the government has us under constant surveillance?

They will say: We are not looking at it; we are just keeping it in case we want to look at it. The danger is too great to let the government collect your information.

I think there is a valid question as to whether simply the collecting of your information is something that goes against the Constitution.

One of the other areas where we are seeing collection of data--I mean, it would just boggle your mind. We are not just talking about one program; we are talking about dozens of programs the government has instituted to look at your stuff.

There is another group called EPIC, the Electronic Privacy Information Center. They talk about suspicious activity reports. Those are reports your bank has to file whenever you deal in cash at the bank. There are certain dollar limits. They think, well, gosh, someone is probably a bad person if they are putting $9,500 in cash in the bank. Well, it turns out that a lot of honest, law-abiding people do that.

Not too long ago, there was a Korean husband and wife. They owned a grocery store. They dealt with a lot of cash. They were very successful. Three times a day, they deposited over $9,000, $8 to $10,000. They tried to stay under $10,000 because there were all kinds of extra paperwork if you were over $10,000. So what the government said is, you are structuring your deposits to evade people. You must be guilty of something.

The government then can accuse people of a crime and take their stuff. There is something called civil asset forfeiture. It does not require that you be convicted, does not even require that you be accused of something.

There was a story not too long ago in Philadelphia--Christos Sourovelis. The teenager was selling drugs out of the back of the parents' house. So they caught the kid and they were punishing him, but they decided they would punish the parents, too. They confiscated the parents' house and evicted the family. So the teenager makes a mistake by selling drugs, and what does the government do? They take the parents' house. So you think that is going to help the kid or help anything get better in this situation by taking the house? But here is the rub: The kid did not even have to be convicted of anything. The kid did not own the house; he was just their kid.

If we allow all kinds of data to be out there to catch people and then we are not even going to require that you are convicted of a crime before we take your stuff--you can see the danger of allowing so much data to be collected. But we are currently convicting and taking people's stuff or their money simply based on what they are using it for.

The Washington Post did a series of articles on this. Turns out that most people having their stuff taken are poor, often African American, often Hispanic, but for the most part poor. One guy was here in Washington and had $10,000. He was going to buy equipment, such as a refrigerator or a commercial oven or something, for his restaurant. They just stopped him and took his money. It took him years to get it back. He only got it back because the Institute for Justice defended him in getting it back. But it turns justice on its head because he was basically considered to be guilty until he could prove himself innocent.

Realize, then, that people like this are sometimes being picked up because of something called suspicious activity reports. Suspicious activity reports make your bank into a policeman or policewoman. When you deposit things, they are obligated to report you to the government. Does it sound something like ``1984''? Does it sound like you have informants out there everywhere--see something, say something; that your banker is going to call the government if you put cash into the bank?

The burden should always be on the government to prove you are guilty of something. You should never be convicted and you should never be punished without there first being a trial, without there first being evidence, without there first being a trial with a lawyer, with a verdict.

Some of this has gone into the war on drugs. The war on drugs has a lot of problems. But part of it has been the abuse of our civil liberties. Also, part of the war on drugs is that there has been a disparate racial outcome. What do I mean by that? There have been instances where--if you look at the statistics, three out of four people in prison are Black or Brown and are there for nonviolent drug use.

But if you look at the surveys and you ask yourselves: Are White kids using drugs the same as Black kids, it is equal. White kids are 80 percent of the public. How do we get the reverse for 80 percent of the population in jail is Black and Brown? It is a problem. If we can't figure it out, you are going to have to continue to realize why people are unhappy.

If you want to know why there is unhappiness in some of our cities, you should read The New Yorker. About 3 or 4 months ago they did a story about Kalief Browder. Kalief Browder was a 16-year-old Black kid from the Bronx. He lives in a poor situation. His family had no money, and he had been in trouble before.

But he was arrested, and he was sent to Rikers Island--16 years old, arrested, sent to Rikers Island. His bail was $3,000. His family couldn't come up with $3,000. He was kept for 3 years without a trial. At least some of it was in solitary confinement.

He tried to commit suicide. Can you imagine how he must feel? Can you imagine how his parents must feel? Can you imagine how his friends feel, the kids he went to high school with. Do you think they think justice is occurring in our country?

We have to be careful we don't let slip away who we are in the process of all of this fight against terrorism, all of this fight against drugs, because what happens is people take things that are bad. Terrorism is bad, drugs are bad. But we take this fight about something that is bad, we forget about the process of law, we forget about the rule of law, and we forget who we are in the process.

But if you want to know why people are unhappy in some of our big cities, you want to see that unhappiness in the street, it is because some people don't think they are getting justice. I, frankly, agree with them. I think there isn't justice in our country when this occurs.

Originally, we had the Constitution. Then after 9/11 we got the PATRIOT Act. The biggest change between the Constitution, which provided protection for us from people, bad people, for 200 years or more--the biggest difference is we changed the standard on how we would arrest people or how we would give out warrants.

I remember having this debate about 3 years ago when we talked about the PATRIOT Act. I was walking along talking to another Senator, and he was alarmed that the PATRIOT Act would expire at midnight. What would we do?

And I was like: Couldn't we, for just a couple of hours, you know, live under the Constitution?

I mean we did for 200 years, for goodness' sake. We have all kinds of tools. There is almost no judge in the land that is going to turn down a warrant. The FISA warrants, the ones they give for security, 99.9 percent of them are approved.

Couldn't we give out warrants? They said it takes too long. Computers work in the blink of an eye. In the blink of an eye, if John Smith is thought to be a terrorist and he called 100 people, in the blink of an eye, I can look at the 100 on the list and I can say: What is the evidence that some on the list look suspicious or any of them from a foreign country or any of them on another list from somebody calling from a foreign country.

There are ways to look at this where we would simply then get a warrant for the next hop and the next hop and the next hop. There is no reason we can't catch terrorists the same way we catch other bad people in society by using the Constitution.

Initially, the government had to show evidence that you were an agent of a foreign power, but this is no longer true. Now all you have to do is make a broad assertion that the arrest is related to an ongoing terrorism investigation.

The problem in the FISA Court is that when they take you to this court, it is secret. You don't get your own lawyer, and basically the government says to the FISA Court judge: Oh, yes, it is related to an investigation--but I don't believe they are forced to show that it is relating to an investigation. In some ways, I think we have gone too far because what you end up having is you have people who are saying it is related, but the question is, Is there any evidence that there is a relation to it and how could there be a relationship of everybody in America to an investigation?

We also often have given gag orders, and this is one of the big complaints of the Internet companies. They get order after order after order, a national security letter. They get all of these suspicionless warrants, and then they are told they can't talk about it or they will go to jail. There are some people who got gag warrants who were librarians and for a decade or more were not allowed to talk to anybody to say that they had received this warrant.

The American Civil Liberties Union has written that the PATRIOT Act ``violates the Fourth Amendment,'' which says the government cannot conduct a search without obtaining a warrant and showing probable cause to believe that a person has committed or will commit a crime.

The ACLU goes on to say that it ``violates the First Amendment's guarantee of free speech by prohibiting the recipients of search orders from telling others [these are the gag orders] about those orders, even where there is no real need for secrecy.''

These are the gag orders. They also say that it ``violates the First Amendment by effectively authorizing the FBI to launch investigations of American citizens in part for exercising their freedom of speech.'' Now, they went back in and they wrote the rules and said: Oh, you are not supposed to do it if it violates someone's freedom of speech. But the bottom line is that the opening we have given to the intelligence community is so wide that there are, for all practical purposes, no limitations on the gathering of your information.

In the Maryland v. Smith case, we kind of get to the point where we have said that telephone conversations are protected, but we have said trace-and-trap and pen register, where they collect your data by phone calls, is not. The problem is--and this is a problem that needs to be corrected by the courts--at this point they are essentially nonexistent. There are no protections in the court for any kind of warrant that has to be gotten for any kind of metadata.

The FBI need not show probable cause or even reasonable suspicion of criminal activity. It must only certify to a judge, without having to prove it, that such a warrant would be relevant to an ongoing investigation.

Also, typically in the past, when we gave warrants for wiretaps, they were sorted to entities. You kind of had to name the entities. But now we are giving the ability to collect data, pen register, trace-and-trap data on your phone calls nationwide. This is a severe departure from what we had had in the past because typically warrants were given under a judge's jurisdiction, so within a region. But now we have a blanket order that says we can collect any of your phone records, anywhere, anytime, across the whole country. This goes against the history of the way we have had juris prudence.

We talk a lot about phone data but your emails are in there too. Interestingly, your emails, after 6 months, have no protection at all. So any email you have on your computer, after 6 months, has no protection at all.

Up to 6 months, there is a little bit of protection, but the government is allowed to look at--without a probable cause warrant--is able to look at whom you are communicating with and the header on the subject line. The government is also able to look at, through metadata, the Web sites you visit.

You can see how various groups would say that might be an infringement of their First Amendment because let's say the government now knows I go to Electronic Frontier Foundation or I go to EPIC or I go to ACLU. I am concerned with civil liberties. Am I a potential problem to the government? I am concerned and I am a critic of the government. Is it a problem the government now knows what Web sites I go to and that I am concerned with this?

Now, if the government would hear--they would say: No, that is not what we are doing.

But the other part of the question is maybe not yet, maybe not now, but you can also squelch and severely restrict First Amendment practices if just simply the fear of the government looking at it might change my behavior. There is all the evidence, there have been surveys, saying that 20, 25 percent of people doing things online are changing their behavior because they are afraid of the government.

The government argues that the list of Web sites and Web site addresses is simply transactional data, but I think there is much more you can garner from this data.

The PATRIOT Act that is due to expire is just three sections. Interestingly, the complaints that I have are a lot over section 215, which the government claims is their justification for collecting all of your phone records. Now, the courts have said otherwise. The appeals court said last week that the business records do not give them the authority to collect your records. In fact, the courts have been very specific that it is illegal.

The President is currently ignoring the court, and the President continues to collect your phone data, all of your phone data, all of the time, as much as they can get. They have not changed any of their behavior, that I know of, since it was declared to be illegal.

Some of the changes--I would repeal the whole thing. I would repeal the whole PATRIOT Act. But some of the changes that I would favor, if we were allowed to change it, if we could get a consensus in this body that would mirror the consensus that I think is in America--once you get outside the beltway of Washington and you go back into America and you ask people are they for this, the vast majority of people think the government shouldn't collect all of their phone records all of the time.

But there are some changes we could make. I think the first thing we ought to do is not replace this system but basically say we are not going to collect data in bulk, that we are not going to collect your phone records, your credit card information, your emails, and where you go on the Web. We are not going to collect that in bulk.

I think we could change the PATRIOT Act to say we are only going to collect data that has to do with someone who is suspicious, that we have presented some suspicion to a judge, and that the judge said: This is probable cause.

The standard is not that hard. It is hard for me to imagine, in fact, a judge saying no. Judges always say yes. If at 3 in the morning there is a murder somewhere inside a house in DC, what do you think the odds are that when the police call for the warrant that the judge will say no? Odds are most of us want the judge to give permission. But it is the checks and balances that we want so we don't have police who operate on bias or bigotry or religious discrimination. We want the people to be bound by the rule of law.

It is kind of interesting, because you will hear Republicans sometimes give lip service to the rule of law. But in giving lip service to the rule of law, what happens is they seem to forget the whole idea of privacy. They are for it in economic transactions but not so much with regard to personal liberty.

The New York Times has written and talked about some of the economic effects of this. In an article by Scott Shane a couple of years ago, he talks about the idea that foreign citizens, many of whom rely on American companies for email Internet services, are concerned about their privacy.

Now you can say you don't care about foreigners, and they don't get the same standard as we get, so you can understand maybe there is going to be a lower standard. But realize, if we are going to say the standard is quite a bit different and that there is no protection for anybody's data on the Internet, realize that standard is going to scare people in other countries away from our stuff. It is going to scare people away from our email companies. It is going to scare people away from our search engines.

I think if you would talk to any of these companies out there--and some of these companies are some of the greatest success stories in our country--if you think of the Internet revolution and you think of how America has really led, America has been the leader. We have created hundreds of thousands of jobs, billions of dollars of profit. In our zealousness to grab up every bit of information and in our zealousness to ignore, basically, the Constitution, we are grabbing up so much stuff we are scaring people to death. There has already been billions of dollars lost to North American companies because of this, because Europeans, Asians, they don't want our stuff anymore. They don't want things with our hardware. They don't want to deal with our services because they are fearful the U.S. Government is looking at all of their transactions.

The government is pretty clueless over this. Recently, one of the members of President Obama's administration came out--in fact, several members--complaining about encryption. They are like: Well, you know, we are going to maybe have some laws to prevent these companies from encrypting things.

It is like: Don't you get it? Don't you get why companies--the encryption is a response to government. The encryption is a response to a government that has run amok basically collecting our information, collecting all of our information. So if you are an American Internet company, if you are an American search engine or an American email company, what do you think you are saying? You are saying: The only way I am getting Europeans back, the only way I am getting Asians back is to say I am going to protect them from my government.

Isn't that a sad state of affairs?

People say: Well, how will you get terrorists if everything is encrypted?

Edward Snowden was using an encrypted email server, and the company that was housing him--that was specifically the genre of their business. They had a business that was encrypted because some people want to be private for a lot of different reasons, many of them legitimate--business, legal, personal reasons. But, anyway, when they came to get Edward Snowden's email, they didn't ask just to get his email; they said they wanted the encryption keys for the entire business.

See, this is the problem. You have to realize there are zealots who don't seem too concerned with your privacy rights. Imagine what they are going to do if they say to Apple: We don't want just the encryption for you to let us in one time to see John Smith, who we think is a terrorist; we want you to let us in all of your products. If they force a good company like Apple to do that, who in the world would want anything from Apple anywhere in the world? There is a danger that we will destroy great American companies by forcing this surveillance into their products.

(Mr. TOOMEY assumed the Chair.)

Senator Wyden has also made a good point. If the government is going to mandate backdoor access to the code source and the government is going to say that Facebook or Google has to let them in a backdoor, that is a window, that is a breach of the wall, it is a breach of protection.

Senator Wyden and others have made a good point. He said: If you do that, you will be actually weakening these companies to attacks of cyber security because if somebody can get in, somebody else who is smart can get in as well.

So there is a danger to letting the government in.

There are dozens and dozens of these programs. The NSA has something called the Dishfire database. It stores years and years of text messages from around the world. That might be fine except for it ends up trapping people who are also American citizens as well. It ends up tracking and trapping purely domestic texts that are retransmitted outside the country.

They have a program called Tracfin that collects and accumulates gigabytes of credit card purchases. I don't know--for some reason, I am more appalled by the credit card purchases than I am the phone because I think of all the stuff you can buy with your credit card and what it indicates about you.

With phones--you can find out a lot with people's phone records. When the Stanford students looked at phone records, they found that 85 percent of the time they could tell your religion. The vast majority of the time, they could tell your doctors. The vast majority of the time, they could tell what disease you had. The vast majority of the time, the government can then also connect you through social networking and tell an extraordinary amount about you.

With a credit card, it is even more explicit than that. They can tell if you drink, if you smoke, and how much, what magazines you buy, what books you read, what medicines you take. All that is on your credit card. And we are more and more that type of society. We are less and less a society of cash and more and more a society where everything is on paper. That should worry us. It should worry us that the government has access to all of our records all of the time. It should concern us that the government also says, when you ask them--and this is an important point--that your records, when held by a third party, are not protected at all. It is debatable whether that is true. I think it needs to be looked at again by the court, and I think there are those who will, in the court, say your third-party records are. The Maryland decision was 6 to 3.

Justice Marshall felt your third-party records should be protected. He specifically mentioned that there was a potential stifling effect for association, there was a potential stifling effect for speech, and he was quite concerned that the government really should have a warrant to look at your records.

My hope is that someday the Maryland v. Smith case will be relegated to the dustbin of history, into the same dustbin in which we put Olmstead. In Olmstead, they said you couldn't have any protection for your phone records. It went on for 40 years. I think we still live with some of that because we have trained and taught the phone companies not to be great advocates for our privacy, and there doesn't appear to be seen a great deal of fighting on the part of the phone companies in advocating for us. Some of the Internet companies have begun to step up. But I would like to see both phone companies and Internet companies stand up and say: We are not going to do it. We are not going to give you access to us, and you will have to take us all the way to the Supreme Court.

If they did, if there was unified resistance among the consumer and among the companies to say ``We are not going to let you have our data without a fight, and you are going to have to prove suspicion, and that you
are going to have to get a specific warrant,'' I think then we might be able to get back to a more constitutional scenario.

Within the NSA, there has also been evidence of installing filters in the facilities of Internet and telecommunication companies, serving them with court orders, and building backdoors into their software and acquiring keys to break their encryption. If this becomes the norm, you can see how people will flee American products, and people will say: I am not going to use American things. There is an enormous, beyond-imagination economic punishment to our country that is occurring now and going to continue and worsen if we don't wise up and send a signal.

So for those in this body who say: We need to collect more information. We are not getting enough information. Warrants be damned. I don't care what they do. Take all my information, get as much as you want--those people will have to explain why they are destroying an American industry and why people around the world are going to say: We are alarmed at that, and we want some protection. If we are going to use American products, if we are going to use American email, we want to know there is not going to be indiscriminate collection of our information.

Bill Binney was probably or is probably one of the highest ranking whistleblowers from the NSA. The things he has to say should disturb us because he probably knows more about this than any of us will ever know. Bill Binney said that without new leadership--this is in our intelligence agencies--new laws and top-to-bottom reform, the NSA will represent a threat of turnkey totalitarianism. The capability to turn its awesome power--now directed mainly against other countries--will now be turned on the American public.

Originally, all of these intelligence forays were to get foreigners. We lowered the standard, saying: Well, they do not live here. These are potentially terrorists, and so we are going to have a lower standard.

They started out as foreign searches. In fact, the NSA was originally intended to search for foreigners and to search the information of foreigners. And I am not opposed to that. In fact, I was on one of the Sunday morning programs this week, and they asked: Well, are you for eliminating the NSA?

I said: Of course not. I am for the NSA. I want the NSA to do surveillance that will help to protect us from attack.

Not only am I for surveillance, I am for looking as deep as it takes. But I want some suspicion. I want suspicion that this person--that there is some evidence against this John Doe. You don't have to prove they are guilty; you just have to have something that points toward them being suspicious. You then go to the judge, and the judge says: Here is a warrant. And if there is evidence the people he called is suspicious, go back to the judge and get another warrant. Go deeper and deeper. There is no reason why this couldn't be done nearly instantaneously. There is no reason why it couldn't be done 24 hours a day. And there is no reason why we can't have security and the constitution as well.

This battle has not been just about records; it has also been about another key part of the Bill of Rights, which is the right to a trial by jury, the right to due process, the right of habeas corpus. The Fifth and Sixth Amendments I see together as sort of the amendments that are with regard to your person and with regard to whether you are treated justly by your government.

As we became fearful of terrorists, we said: Well, we are just going to capture people and we will just hold them indefinitely. It is one thing to catch someone on a battlefield in a foreign land shooting at us--and I have said repeatedly that people in battle don't get due process, but people outside of battle, particularly American citizens, should. In some of these cases, we are talking about American citizens accused of a crime--perhaps terrorism--who are caught in our country. Yet, we are going to say: Well, they do not really deserve trials. They do not deserve lawyers.

In fact, and I find this really hard to believe, one Senator said recently: Well, when they ask you for a judge, just drone them. Ha-ha.

The same guy said: Well, when they ask you for a lawyer, you just tell them to shut up.

About 10 years ago, Richard Jewell was thought to be the Olympic Bomber. Everybody said he did it. The TV convicted him within minutes. Everybody said he was the Olympic Bomber. He fit the profile: He wore glasses, he was an introvert, he had a backpack, and he seemed very helpful. Somehow, that was the profile. Everybody said he did it. The only problem is, he didn't do it.

So here he was accused of being a terrorist, of exploding something, doing something terrible and killing innocent people. And I think to myself, if he had been a Black man in the South in 1920, what would have happened to him? Or if he had been any American in this century if the people who believe in no jurisprudence were really in charge. We should be afraid of ever letting these people get in charge of our government, because the thing is that Richard Jewell was innocent.

People say: Well, these aren't just American citizens, they are enemy combatants, and we don't give any kind of jurisprudence--no judges or lawyers for these people. They are enemy combatants.

Well, it kind of begs the question, doesn't it? Who gets to decide who is an enemy combatant and who is an American citizen? Are we really so frightened and so easily frightened that we would give up a thousand-year history, the Magna Carta, even before we had juries--even in the Greek and Roman times, we had juries. Are we really willing to give that up and give people a classification that the government assesses them that cannot be challenged, where people don't get a lawyer, they do not get presented to a judge and told why they are being held, and we would hold them forever?

This was the debate over indefinite detention. The response I got during the debate was: Well, yeah, we would keep them. We would send them to Guantanamo Bay.

An American citizen?

Sure, if they are dangerous.

Kind of begs the question, doesn't it? Who gets to decide who is dangerous and who is not?

When this finally made it to the Supreme Court, though, whether you could hold an American citizen, the Supreme Court rejected the administration's claim that those labeled ``enemy combatants'' were not entitled to judicial review. It took years and years to finally have the Supreme Court tell people that the Bill of Rights was still in effect, that if you are an American citizen accused of a crime in our country, no matter how heinous, you do have a right to a trial by jury, you do have a right to a lawyer, you do have the right of habeas corpus, you do have all of the rights of an American citizen.

And no one can arbitrarily take those away from you. And if you don't think that is potentially a problem, think of the South in the 1920s. Think of what would have happened if Richard Jewell were a Black man in the 1920s. He might not have lived the day. Think if Richard Jewell had been a Japanese American during World War II, when we decided that the right of habeas corpus didn't apply to you if your parents were from Japan or if your grandparents were from Japan.

There was an experiment I remember, I think in college--a psychology experiment. They put a person in a room, and they said: This person has information, and we are going to shock them just a little bit. Here is the dial. You get to decide.

They wanted to ask how high people would turn up the dial. It was pretty scary--a good amount of people you would imagine are normal, respectable people--how high they would turn the dial to shock somebody or to torture somebody. So we think that wouldn't happen, but it does.

Any time we make an analogy to horrific people in history--to Mussolini or Hitler--people say: You are exaggerating; it is a hyperbole. Maybe it is. Particularly, to accuse anybody of that is a horrific analogy, and I am not doing that.

But what I would say is that if you are not concerned that democracy could produce bad people, I don't think you are really thinking this through too much. And if you are not concerned about procedural protections--procedural protections are how evidence is gathered, how evidence is taken from your house, what rules the police have to obey.

People don't quite get this. We don't have a mature discussion on this. Any time we try to say that this should stop and that someone could be a bad policeman, the media dumb it down and say that we are saying policemen are bad. No, it is the opposite. Some 98 or 99 percent of the police are good. In fact, in the general public it is pretty close to that.

The thing is that we have the rules in place for the exception to the rule. We have these procedures in place because maybe it isn't tomorrow that we decide that we are going to round up all the Japanese Americans again and put them in internment camps, but maybe next time it is Arab Americans. So we have to be concerned with this because we don't know who the next group is that is unpopular.

The Bill of Rights isn't for the prom queen. The Bill of Rights isn't for the high school quarterback. The Bill of Rights is for the least among us. The Bill of Rights is for minorities. The Bill of Rights is for those who have minority opinions. The Bill of Rights is for those who are oddballs, those who aren't accepted, those who have unconventional thinking.

If we are so frightened that we are going to throw all the rules out and we are just going to say that here is my liberty, take it, and here are my records; I didn't do anything wrong, so I don't mind if you look at all my records; if you say the standard will now be that if I have nothing to hide, I have nothing to fear and look at everything I do, then there will be a time and there will be a danger that, in giving up your freedom, in giving up your privacy, you will find that the world you live in is not the world you intended.

There have been good folks within the National Security Agency who have talked about and have pointed out that we have gone too far. Bill Binney was one of those. He was a high-ranking NSA official who decided that they had gone too far.

There was an interview--it has probably been 1 year or 2 years ago--with Bill Binney that was in ``Frontline.''

One of the first questions was:

What a lot of people in government will say is that you don't understand; we're still at war. Remember we lost 3,000 people in 9/11. This is a very important program.

They talk about the warrantless collection of all records:

It has saved thousands of lives, as Cheney said at one point. There are multiple plots that have been stopped because of this program. You've got to be very careful about what you wish for, because if you do, you might have another attack, and you might have blood on your hands.

Fear.

What is your reaction to this question about the effectiveness of what all this has been?

Binney replied:

First of all, they like to lump it in as one program and say you can't cancel the program.

In fact, Binney was famous because he had been working on a program that did investigate terrorists but protected American information and deleted American information from incidental collection.

So he said:

That's false to begin with. It's multiple programs. The one program that dealt with domestic spying was called Stellar Wind.

Stellar Wind was one that was also created by Executive order and was done without the permission of Congress before the PATRIOT Act.

They had the other foreign ones; you mentioned the names. There were other names that were listed in the PRISM program that was dealing with foreign intelligence. There were a whole bunch of those programs, not just one.

So the point is you stop the intelligence, the domestic intelligence program, period.

So Binney's opinion was--this is the guy who wrote a lot of the original programs. Bill Binney said he would continue gathering information on foreigners. This is a guy who worked for 30 years for the NSA. He is not some dove who doesn't want to do anything about terrorists. Bill Binney worked for 30 years to develop the programs to help us catch terrorists, but he felt it wasn't proper or constitutional to collect Americans' records without a warrant. He said if we get incidental records, destroy them; don't collect them.

He says:

Eliminate them. [The records of Americans are] irrelevant to anything that--

The incidental collection--

is going on. All the terrorists would have been caught by the process that we put in place for ThinThread--

ThinThread was a program they had before they went to the unconstitutional program--

which was looking and focusing in on the groups of individuals that we already had identified and anybody in close proximity to them in the social graph, plus anybody--the other simple rules like anybody that was looking at jihadi advocating sites. .....

Et cetera.

That would get them all, and you didn't have to do the collection of all this other data that requires all that storage, transport of information to the storage, maintenance of it, interrogation programs, all of that added expense that they are incurring as a part of it over the last 10 years. You wouldn't have any of that. .....

Frontline then asks:

This problem of haystacks, how big a problem is that? Is that what we've done, is we've created a situation where the haystacks are bigger, and it's almost impossible to find?

This was Frontline's question. It is a question I have been asking, also. If you collect all of Americans' records all of the time, if we collect all of your phone records, can we possibly look at them?

Now, computers are getting better, but still there has to be a human involved. I think we are overwhelmed with data. At one time about a year ago, I remember an article where I think they collected millions and millions of audio hours. They had just been collecting. They were vacuuming up everything. And I think they had only been able to listen to about 25 percent of it.

So the thing is that there is information that we need to get and we should get.

When the Tsarnaev boy--the Boston Bomber--went to Chechnya, we needed to know that. We needed to continue to see if there was evidence that we could take to a judge to continue to investigate him. So we do need surveillance. But what we don't need is indiscriminate surveillance, and we don't need the haystack to get so big that we can never find the terrorist in the stack.

Binney responds:

Well, what it simply means is if you use the traditional argument they say we're trying to find a needle in a haystack, it doesn't help to make the haystack orders of magnitude larger, because it makes it orders of magnitude more difficult to find that needle in the haystack.

Frontline:

And is that what they've done?

Have we made that haystack so large that we are actually having more trouble catching terrorists because we're scooping up and swooping up all of America's data?

Binney:

That's what they've done. And now they're looking at things like game playing and things like people doing that. I mean, this is ridiculous. How relevant is that to anything?

Frontline:

But they say there're computers, and in Utah they're going to be able to take all this stored data, and they're going to be able to go through all of it, and they're going to be able to connect the dots. Connect the dots--that's what everybody wanted them to do after 9/11.

Bill Binney, former senior NSA:

See, that's always been possible. Before 9/11 we were doing that. That was already happening. We already had that program. That wasn't an issue at all. That's why we should have picked this out from the beginning. We should have implemented it, the ThinThread [program that they'd already been working, the] connect-the-dots program on everything in the world, but we didn't. That's why we failed. It wasn't a matter of not having the program; it was a matter of not implementing the program we had.

When 9/11 came, we gave medals to the heads of our intelligence agencies. No one was ever fired. Yet the 20th hijacker was caught a month in advance. Moussaoui was caught in Minnesota for trying to take off in planes but not land them. The FBI agent there wrote 70 letters to his superior trying to get a warrant. It wasn't that we had to dumb down and take away the procedural protections of warrants. The warrant wasn't denied.

They would have a much stronger argument if they could say: We tried to catch the terrorists, but the judges kept saying no to warrants.

It is absolutely not true. They didn't ask the judge for warrants. So the 70 requests in Washington sat at FBI Headquarters and weren't requested. We also had another hijacker in Arizona training to take planes off. Once again, the FBI agent there was doing a great job in sending the information to Washington, and but people were not talking to each other. It had nothing to do with saying the Constitution is too strong, and we have to weaken the Constitution or we will never catch terrorists. It had nothing to do with that. But that is precisely the argument we have.

In the aftermath of 9/11, the PATRIOT Act was rushed to the floor--several hundred pages--and nobody read it. It didn't come out of--there was one out of the committee. They didn't use that. They rushed a substitute to the floor, and no one had time to read it. But people voted because they were fearful, and people said there could be another attack and Americans will blame me if I don't vote on this.

But we are now at a stage where we should say: Are we willing to give up our liberty for security?

Can you not have both? Can you not have the Constitution and your security? I think you can.

Several agents other than Bill Binney have also said--several national security officials--that the powers granted the NSA go far beyond the expanded counterterrorism powers granted by Congress under the PATRIOT Act.

The court now agrees with that. Any time someone tries to tell you that metadata is meaningless, don't worry. It is just whom you call. It is just your phone records. It is not a big deal. Realize that we kill people based on metadata. So they must be pretty darned certain that they think they know something based on metadata.

So these are ostensibly or presumably terrorists that are being killed. But what I would say is that if they are killing people based on metadata, I would think you would want your own metadata pretty well protected.

To give you an example of how Representatives are sometimes getting it right, in the House of Representatives, they have seen and responded to the people. Thomas Massie and Representative Lofgren introduced an amendment to the Defense appropriation bill last year. This amendment would have defunded the warrantless backdoor searches--what they are doing through 702, which is an amendment to the FISA Act. This is where we say we are investigating a foreigner, but the foreigner talks to an American who talks to other Americans, and it ripples out into enormous amounts of incidental information. The information from 702, when you analyze it--9 out of 10 bits of information that are collected--is not about the person we have targeted. They are incidentally collected about other individuals.

But when Representative Massie and Representative Lofgren introduced their amendment to defund the backdoor searches and to tell the CIA and NSA that they cannot mandate that companies give a backdoor entry into their product, the amendment passed 293 to 123.

But just to show you that no good deed goes unpunished and just to show you the arrogance of the body--the vast majority of people do not want their phone records collected without warrant--what did they do when this passed 293 to 123? They stripped it out in secret in conference committee and it was gone. The reason it was gone is like everything else around here. You wonder why your government is completely broken. We lurch from deadline to deadline, and it is on purpose really. We do deadline to deadline because we have to go. It is spring break. We are going to be late for spring break. We have to go, so we have to finish this up before we go.

It is how the budget is done. No one ever votes on whether we are going spend X or Y. They put the whole budget into 2,000 pages. Nobody reads it. It is placed on our desk that day. Nobody has any idea what is in it. None of your concerns about your Government are ever addressed. We just pass, boom, the whole thing and it is out the door. It is the same way with these kinds of things. Because there is a deadline--and this amendment was passed 293 to 123, saying that we shouldn't fund these illegal searches and that we should stop the bulk collection records--it is passed overwhelmingly. Yet, in secret, somehow it is taken back out of the bill and never becomes law.

Now, while I don't agree completely or really at all with the reform that has come forward out of the House, it is at least evident they are listening. They have a bill that would end the bulk collection of records to replace it with, I think, maybe another form of bulk collection, but it still passed overwhelmingly, 330-some-odd votes. But do you know what you hear when it gets over here? They say the Senate is distanced more from the people and not as responsive--absolutely true and sometimes to the detriment of the public. Because the thing is that while it is overwhelmingly popular with the American people that we should not be collecting your phone records without a warrant--without a warrant with your name on it, and the House has recognized this and passed something overwhelmingly to try to fix it--the first thing I hear over here from people is, Well, we are not collecting enough of your phone records. They are disappointed that the government isn't getting--they have access and they claim they can get it, they gain access to everything, but the Government really is not collecting all of it, so people are very disappointed; they want to collect more.

The American people say: Enough is enough. We want our privacy protected. We want the Government to take less of our records. Congress recognizes that--the House of Representatives. Then it comes over to the Senate, and the Senate says: Oh, my goodness. We want to collect more of your records. We do not think we are getting enough into your privacy. We do not think we have completely trashed the Bill of Rights enough; let's try to gain more of your records.

One of the other things the Massie-Lofgren amendment did--that did pass over there--was to get rid of and say that no funds would go to mandate or request that a person alter his product or service to permit electronic surveillance.

This is what is going on. What is pretty nefarious and antithetical to freedom is that our Government is telling companies like Facebook and Google and these other companies--they are forcing them to let the government have access into their products.

Everybody knows this is going on. It is no secret, and it is killing these companies in their worldwide market because non-Americans don't want to use their email. They are afraid the government has forced their way into all their transmissions.

There is currently another bill in the House put in by Representative Pocan, Representative Massie, Representative Grayson, and Representative McGovern that would repeal the entire thing. It repeals the PATRIOT Act and FISA amendments of 2008, permits the courts to appoint experts, permits the courts to have appeal. It basically tries to make our intelligence courts more like an American court or American jurisprudence.

EPIC is the Electronic Privacy Information Center. They talk some about these national security letters I mentioned earlier. There are now hundreds of thousands of national security letters. These are letters that are warrants. They are not signed by judges. They are actually signed by the police. This goes against the fundamental precept of our jurisprudence. The fundamental aspect was that we divided police from the judiciary. It is supposed to be a check and balance. In case the local policemen had some sort of bias, they always had to call somebody else. It is not perfect, but it is a lot better than not having a check and balance.

When we got to NSL--this comes out of the PATRIOT Act--they start out with a few thousand, and they grow and grow. Now there are hundreds of thousands of them. But realize that the national security letter is similar to what we fought the Revolution over. We fought the Revolution over writs of assistance, which are basically generalized warrants, but they were also written by British soldiers. We were offended that a soldier would come into our house with a self-written permit.

A lot of the reaction and the reason we wrote the Bill of Rights the way we did is that we were concerned with British abuses. We were concerned with the idea of general warrants. So when we wrote the Fourth Amendment, we said that it had to be specific to an individual. We said you had to name the individual. That is one of the real problems with the bulk collection of records. They are not really based on suspicion of an individual because basically the government is collecting all of your records, indiscriminately.
The government is not even obeying the loose restrictions they put in place. The Constitution says you have to have probable cause. You have to present some evidence to a judge. You don't have to prove that they are guilty, but you have to have enough evidence that the judge says it looks like that person could be guilty of a crime.

So with the PATRIOT Act we lowered that standard and then lowered it again. For collecting information under the PATRIOT Act, all you have to do is say that the information you want is relevant to an investigation. When this got to the court, the court basically said this is absurd. So 2 weeks ago, the court just below the Supreme Court said it is absurd to say that every American's phone record is somehow relevant to a terrorist investigation. They said it takes the meaning of the word ``relevant'' and basically destroys any concept that the word has meaning at all.

The PATRIOT Act went to a much lower standard, not probable cause but just that it might be relevant to an investigation. And even with that lower standard, the court said that is absurd.

How does the President respond? The President responds by doing nothing. The President could end this program tomorrow. Every one of your phone records is being collected without suspicion, without relevance. In contradiction to even what the PATRIOT Act says, your records are being collected. The second highest court in the land has said this is illegal, and the President does nothing. The President said to Congress, Oh, yes; I will do it if Congress will do it.

It is a bit disingenuous. We did not start the program. The authors of the PATRIOT Act had no idea this was going on. The PATRIOT Act, according to the court, does not even justify this.

We are looking at telephone records. We are looking at email records. EPIC, the Electronic Privacy Information Center, has another big complaint about this; that people were put forward and then told that they could not even talk about the fact that they had been given a warrant. They were threatened with 5 years in prison for even mentioning that they had been served a warrant.

This, I think, is an obvious contradiction of the First Amendment. We have legislation that contradicts the Fourth and the First Amendments.

The national security letters in 3 years, from 2003 to 2005--these are the warrants that are written by FBI agents, not written by a judge--there were 143,000 warrants given out in our country to Americans with a warrant written by the police.

The New York Times has talked about this, and Charlie Savage in a report last year reported that the Justice Department had to apologize to a Federal appeals court for providing inaccurate information about a central case challenging the unconstitutionality.

Now, what is truth and what isn't truth. When you go to a court, it is like when your kids fight; there are two sides to everything. One child has one argument, and the other child has the other argument. The truth is listening to both sides and trying to figure out what the truth is. The court is no different. But in these courts, you are only hearing one side and only the government represents their case.

The government says that we want all the phone records because they are relevant. No one stands up on the other side and says: I object. That is one of the reforms Senator Wyden and I have talked about, having somebody represent the accused, somebody to stand up and say maybe all the phone records in the country are not relevant, maybe they are not relevant to an investigation. It would be absurd to say every American's records would be relevant.

Probably no one in America knows more about this subject than Senator Wyden, who I see has come to the floor. Senator Wyden knows more about this because he has been on the Intelligence Committee for several years.

There are two tiers within Congress. There is a great deal of information that I have never been told. Even though I was elected to represent Kentucky, I am not allowed to know a lot of things that happen in the Intelligence Committee. The downside for Senator Wyden is he is allowed to know more but then he is not allowed to talk about it, which makes it a problem. It is hard to have dissent in our country. If I am not given information, how can I complain about it? And if the Senator from Oregon is given information, he is not allowed to complain about it.

These are the things we struggle with in trying to find truth.

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Mr. PAUL. Mr. President, that is a great question, and I also think it is very difficult to prove these things one way or another sometimes. We are at a great disadvantage because a lot of times they hold all of the information. I think it was nothing short of miraculous that you and others were able to investigate this and show that in reality all of these folks who they allege could have been caught would have been caught through traditional surveillance and through traditional warrants.

I think this is a pretty important point because they want us to live in fear and give up the Fourth Amendment, but it turns out even the practical argument is not an accurate one because it turns out that almost always, if not always, the terrorists seem to be caught through sort of the normal channels of human intelligence, suspicion, and finding out something about them that causes us to investigate them.

I, like the Senator from Oregon, do want to catch terrorists and I also want to keep our freedom at the same time. I think it was a pretty important conclusion, not only by the review board but also by the Privacy and Civil Liberties Oversight Board as well, the review panel, two groups of folks from the administration.

I am also interested in hearing the Senator from Oregon talk about an op-ed he wrote which appeared in the Los Angeles Times in December. Senator Wyden wrote that building a backdoor into every cell phone, tablet or laptop means directly creating weaknesses that hackers and foreign governments can exploit.

I would be interested in entertaining a question concerning that.

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Mr. PAUL. I think the vast majority of the intelligence community, as are the vast majority of policemen, good people. They are trying to do what is best for the country. They are patriotic people, and they are really trying to do what is necessary within the confines of the law.

The issue is that the intelligence community has such vast power, and a lot of it is secret power. So we have to have a great deal of trust in those who run the agency because we have entrusted them with such enormous power to look through information. Then, when they come to us and say, ``Well, you have to give up a little more liberty; you have to give up a little bit more in order to get security,'' we have to trust the information because they control all of the information they give us. And then we find--when we ask a high-ranking official in the committee whether they were doing bulk collection of data and the answer was not true--they said they weren't doing something that they obviously were doing--it makes us distrust the whole apparatus.

I agree with the Senator from Oregon that the vast majority of law enforcement and the intelligence community are good people. They are patriotic. They want to stop terrorism, as we all do. But what we are arguing about is the process and the law and the Constitution and trying to do it within the confines of the Constitution. But when we have someone at the very top who doesn't tell the truth in an open hearing under oath, that is very troubling and makes it difficult.

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Mr. PAUL. I think the American people are with us. I think the American people don't like the idea of bulk collection. I think the American people are horrified.

I think it will go down in history as one of the most important questions we have asked in a generation when the Senator from Oregon asked the Director of National Intelligence: Are you gathering in bulk the phone records of Americans? And when he didn't tell the truth and then when the President kept him in office and then how that led to this great debate we are having now--I think the American people are with us.

I don't think those inside Washington are listening very well, so I think those inside Washington have not come to the conclusion yet. But I think the Senator from Oregon is right. There may be enough of us now to say: Hey, wait a minute, you are not going to steam roll through once again something that isn't even doing what you said it is going to do.

No one said at the time of the PATRIOT Act that it meant we could collect all records of all Americans all the time. In fact, in the House, one of the cosponsors of the bill, JAMES SENSENBRENNER, knew all about the PATRIOT Act. He was a proponent of the PATRIOT Act, and he said never in his wildest dreams did he think that what he voted for would say we could gather all the records all the time.

But I am interested in another question, and that would be whether the Senator from Oregon has a question that will help us to better understand, if we were to stop bulk collection tomorrow, if we were to eliminate what is called section 215 of the PATRIOT Act, if we were to do that, is there still concern and worry about what is called Executive Order 12333?

I am not aware of whether the Senator can or can't talk about this or what is public. From what I have read in public and from one of the insightful articles from John Napier Tye, the section chief for Internet freedom in the State Department, he has written that his concern is that this Executive order may well allow a lot of bulk collection that is not justified and not given sanction under the PATRIOT Act.

Does the Senator from Oregon have a question that might help the American public to understand that?

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Mr. PAUL. Mr. President, I would like to thank the Senator from Oregon, and I would like to point out to the American people, to people who are always crying out and saying ``Why can't you work together? Why can't you work with the other side?'' that I think we have a false understanding sometimes of compromise. The Senator from Oregon is from the opposite party. We are in two opposite parties, and we don't agree on every issue. But when it comes to privacy and the Bill of Rights and what we need to do to protect the Fourth Amendment, we are not splitting the difference to try to find a middle ground between us. We both believe in the Fourth Amendment. We both believe in protecting the Fourth Amendment and protecting your right to privacy.

So bipartisanship can be about two people believing in the same thing but just being in different parties. It means we may not agree on 100 percent of issues, but on a few, we are exactly together, and we don't split the difference. It isn't always about splitting the difference.

You can have true, healthy bipartisanship, Republican, Democrat, Independent coming together on a constitutional principle, coming together on something that is important.

I didn't come to the floor today because I want to get some money for one individual project for one person. I came because I want something for everybody. I want freedom for everybody, and I want protection for the individual. I want protection against the government's invasion of your privacy.

I thank the Senator from Oregon for his insightful questions.

One of the things we talked a little bit about as Senator Wyden and I were going through a series of questions was some of the different boards that have been put in place by the President and have come out and said that the program--the Executive order--the President put in place two panels, a review panel and another one called the Privacy and Civil Liberties Oversight Board, and, interestingly, both panels told him the same thing: that what he was doing was illegal and wrong and it ought to stop. Then the President came out and said ``That is great,'' but then he keeps doing it.

I don't quite understand because I like the President and I take him at his word, and he says: Well, yes, I am balancing this and that, and they told me this, and if Congress stops it, I will obey Congress. It is like, we didn't start this. The President started this program by himself. He didn't tell us about it. Maybe one or two people knew about it. Almost all of the representatives didn't know about it, and no Americans knew about it. And then when we asked them about it, they lied to us and said they weren't doing it.

The President has two official panels, and they both said it is illegal and ought to stop. And the PATRIOT Act doesn't justify what they are doing. And this was all created by Executive order.

So what is the President's response? He just keeps collecting your records. Does nobody in America think this is strange or unusual that the President will continue a program that his own advisers tell him is illegal and that the courts have now said is illegal, and he goes on.

But this isn't all one-sided. That is for one political party. But in my political party, there are people saying: I guess the President's advisers say it is illegal, the court says it is illegal, but, man, they are not collecting enough. I just wish they were collecting more Americans' records without a warrant.

What a bizarre world, that people don't seem to be listening to the courts, to the experts, or to the Constitution.

The Privacy and Civil Liberties Oversight Board, though, I think really had some insightful comments. They give a description, first of all, of collecting all of your phone records, and I like the way they put it. They said that an order was given so that the NSA is ``to collect nearly all call detail records generated by certain telephone companies in the United States. .....'' Sometimes when you read a sentence, you don't quite get to the importance. ``Nearly all.'' So we are not talking about 1,000 records. We are not talking about 1 million records. We are talking about nearly all of the records in the entire United States. There are probably over 100 million phones, I am thinking, in the United States, so over 100 million records. Every record has thousands of pieces of information in it, so we are talking about billions of bits of information that the government is collecting.

I don't have a problem if they want to collect the phone data of terrorists. In fact, I want them to. I don't have a problem if they will go 100 hops into the data if they have a warrant. If John Doe has a warrant, look at all his phone records. Ask a judge to put his name on the warrant and look at all of his records. If there are 100 people he called and they are people you are suspicion of, call them, too. Go to the next hop, go to the next hop, go to the next hop. There is no limit. But just do it appropriately. Do it appropriately with a warrant with somebody's name on it. I see no reason why we can't do this with the Constitution.

We are now collecting the records of hundreds of millions of people without a warrant, and I think it needs to stop. The President's own commission says to stop. Here is what the commission says: ``From 2001 through early 2006 the NSA collected bulk data based on a Presidential authorization.''

So, interestingly--and this ought to scare you, too--they didn't even use the PATRIOT Act in the beginning at all. The President just wrote a note to the head of the NSA and said: Just start collecting all their stuff, without any kind of warrant. And then later on they started saying: Well, maybe the PATRIOT Act justifies this. But for 5 years they collected data with no warrant and with no legal justification, and they do it through something they call the inherent powers of the President, article II powers.

Article II is the section of the Constitution that gives the President powers. We designate what the President can do. Article I designates what we can do. Interestingly, our Framers put article I first, and those of us in Congress think that maybe they thought the powers of Congress were closer to the people and more important, and they gave delegated powers to us, and they were very specific.

But what concerns me about the bulk collection is that for 5 years it wasn't even done with regard to the PATRIOT Act. I am guessing it was done under the Executive order.

As much as I don't like the PATRIOT Act and would like to repeal the PATRIOT Act and simply use the Constitution, I am afraid that even if we repeal the PATRIOT Act, they would still do what they want.

Your government has run amok. Things are runaway, and the government really is not paying attention to the rule of law.

For the first time, in 2006, the court got involved. The intelligence court at that time finally heard the first order under section 215. So for 5 years they were collecting all the phone records with just a Presidential order. Now we do it under the PATRIOT Act.

But the rule of law is about checks and balances. It is about balancing the executive branch and the legislative branch and the judiciary branch. It is about balancing the police in the judiciary. We talked about warrants and the police not writing warrants.

I see on the floor one of the Nation's leading experts in the Fourth Amendment and the Constitution, who has recently written a book on this, and I told him recently I have been stealing his story and at least half the time giving him credit for it. But I talked earlier on the floor about the story of John Wilkes, and if the Senator from Utah is interested in telling us a little bit of the story, I would like to hear a little bit from his angle or in the form of a question or any other question he has.

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Mr. PAUL. Mr. President, the Senator from Utah makes a very good point and also asks some very good questions.

In saying that we tend to work against headlines here, I often say we lurch from deadline to deadline, and the American people wonder what the heck we are doing in between the deadlines.

The PATRIOT Act has been due to expire for 3 years. It is on a sunset of 3 years. We knew 3 years ago that this debate was coming. There should be plenty of time and, I think, adequate time to discuss issues that affect the Bill of Rights, that affect rights that were encoded into our Constitution from the very beginning.

So I think without question the issue is of great importance and then we should debate it. But too often budgetary measures--or maybe this measure--get so crowded up against deadlines that people are like: Oh, we don't have time for amendments. The problem is, if you don't have amendments, you are not really having debate.

I think the Senator characterized very well that we both agree the bulk collection of data is wrong. We think that goes against the spirit and the letter of the Constitution.

However, at least half of us that we would encounter in this body don't even agree with that supposition. They believe, as many of them have pointed out, we are not collecting enough, and they don't care how we collect it, let's just collect more.

So we are on different sides of opinion, two groups here. And then some of us aren't exactly on the same page as to the solution, but we agree on the problem. I think you could work through to the solution if you all agreed it is a problem and that the American people think we have gone too far.

I think that is what the purpose of some of this debate today is, hopefully to draw in the American public and have them call their legislators and say: Enough is enough. You shouldn't be collecting my data unless you suspect me of a crime, unless my name is on the warrant. Unless you had a judge sign the warrant for me, you shouldn't be collecting all the data of all Americans all the time.

I think part of our problem is the deadlines, and part of the reason I am here today is that I have been working on five or six amendments for a year now with Senator Wyden, so we have bipartisan support for a series of amendments. These are what we think would be best to fix this problem. Certainly, when we have had 3 years to wait for this moment, we ought to have enough time to vote on five or six amendments.

So that is really, I think, what we are asking of the leadership of both sides--is permission. Because, really, in this body, everybody has to agree to let you vote on something or no votes happen.

We have done a better job this year. We are voting on more amendments, but this is still one of those occasions where we are butting up against a deadline. My fear is that without extraordinary measures--which I am hopefully trying to do today--that we may not get a vote on amendments and we may not get adequate time to debate this, I think, important issue.

Some of the amendments we have been interested in presenting as a way to fix this--so first you have to agree with what the problem is. We think the problem is that the government shouldn't collect all of your phone records all of the time without putting your name on a warrant, without telling a judge that they have suspicion that you have committed a crime. We think that collecting everyone's phone records all of the time without suspicion is sort of like a general warrant. It is like a writ of assistance, it is like what James Otis fought against, it is like what John Adams said was the spark that led to the American Revolution.

So we think the American people also believe this, that the American people believe their records shouldn't be collected in bulk, that there should not be this enormous gathering of our records.

What we need to do is get to a consensus where everybody agrees that is a problem. But the body is still divided. About half of the Senate believes we should collect more records, that we are not invading your privacy enough, that privacy doesn't matter--that, by golly, let the government collect all of your records to be safe.

Well, when the privacy commission looked at this, when Senator Wyden looked at this, and when other people who have the intimate knowledge looked at this, their conclusion was that the bulk collection of our records, this invasion of privacy, isn't even working, that we aren't capturing terrorists we wouldn't have caught otherwise by this information. So the practical argument that says we will give up our privacy to keep us safe, even that argument is not a valid argument.

But we have been looking at some of the possible solutions--and I see the Senator from New Mexico and would be pleased to entertain a question if he has a question.

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Mr. PAUL. Mr. President, I thank the Senator from New Mexico for that great question.

I think there is no way we can square this bulk collection with the Fourth Amendment. I think part of the problem, though, is that we, over a long period of time, diminished the protections of records held by third parties. And I think one of the debates we need to get hopefully to the Supreme Court sometime soon is whether you give up your privacy interest in records that are held by third parties.

I think there will come a time that your papers, once held in your house--there are no papers in your house. There may not be paper. But there is still the concept of records. Records were traditionally on paper, and they were traditionally in your house. But now your most private papers are held digitally by your phone, and then by the people who are in charge of the different organizations such as phone, email, et cetera.

I think there has to be Fourth Amendment protection of these. Those who look at the court cases, and go back to probably the last important case, the Maryland v. Smith case, often say there is no Fourth Amendment protection at all for these records. In fact, the government will tell you they can do whatever they want with email, with text, and with all of these things. And I am not convinced they are not using other programs, such as this Executive order program, to actually collect many other kinds of metadata other than phone calls.

So I am very worried about it. I think we need help from the courts. But we need help from the legislative body to represent the will of the people. And I think the will of the people is very clear that the majority of people think we have gone too far and that we need to stop this indiscriminate vacuuming up of all Americans' phone records regardless of whether there is suspicion.

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Mr. PAUL. Mr. President, I thank the Senator from New Mexico for coming down and for being a great supporter of the Fourth Amendment.

One of the things I think is interesting is that in our current culture we seem to devalue the Fourth Amendment. You go to--at least on our side--all kinds of groupings and gatherings, and there is a lot of talk of the Second Amendment, talk of the First Amendment, but there hasn't been so much of the Fourth Amendment until we got to this point with the collection of data seeming to be running amok.

One of our Founding Fathers was George Mason. He was considered to be an anti-Federalist. He was a guy who really stood on principle, but also he was a guy who had the audacity to actually not sign the Constitution, even though he was asked and he was there and could have.
On September 17, 1787, he refused to sign the Constitution and returned to his native State as an outspoken opponent of the ratification contest. His objection to the proposed Constitution was that it lacked a declaration of rights. Mason felt that a declaration of rights--or what we call a bill of rights--was a necessity in order to curb Federal overreach.

Mason, though, was also famous for being an author of the Virginia Declaration of Rights, which was written a decade or so before our Constitution and upon which many things were based. He wrote in the first paragraph of the U.S. Declaration of Independence something similar to what we hear in the Declaration of Independence:

That all men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot by any compact deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.

In the Declaration of Rights, which comes from 1776, for Virginia, he also was instrumental in including article IX. Article IX is basically the precursor to the Fourth Amendment. In it, he wrote:

That general warrants, whereby any officer or messenger may be commanded to search suspected places without evidence of a fact committed, or to seize any person or persons not named, or whose offence is not particularly described and supported by evidence, are grievous and oppressive, and ought not to be granted.

So from the very beginning, the Fourth Amendment was a big deal. It was a big enough deal that the fact that it wasn't included caused George Mason to say he couldn't sign the Constitution. It was a big enough deal that this debate went on for a while, and finally the resolution of getting the Constitution included that there would ultimately be a Bill of Rights. Thomas Jefferson wrote about the Bill of Rights. He said:

A bill of rights is what the people are entitled to against every government on earth, general or particular, and what no just government should refuse, or rest on inferences.

I like the way he put it: A Bill of Rights is what the people are entitled to against every government. It is a protection.

Jefferson also described the Constitution as the chains of the Constitution. The chains were to bind government and to prevent government from abusing its authority.

When we have adhered to this, when we paid strict attention to it, we have maximized our freedom. When we have let our guard down, when we have allowed our guard to stray away, when we have allowed the government to usurp authority to gain and grab and take more power, it has been at the expense of freedom.

I think we can be safe and have our freedom as well. I think we can obey the Constitution and catch terrorists at the same time. I think, in fact, frankly--strictly from a practical point of view--I think we gain more information by using the Constitution. By having less indiscriminate collection of data and by having more collection of discriminating data--data that is based on suspicion, data that is based on tips, data that is based on human intelligence, data that we can focus all of our human energy on--I think we actually will catch more terrorists. I think there has been instance after instance after instance where we did have information on terrorists and we failed to act, perhaps because we are spending so much time and so much energy on the indiscriminate collection of data.

William Brennan is one of our famous Justices, and he said of the Framers:

The Framers of the Bill of Rights did not purport to ``create'' rights. Rather, they designed the Bill of Rights to prohibit our Government from infringing rights and liberties presumed to be preexisting.

We didn't create the rights. Government didn't create your rights. Your rights come naturally to you. For those of us who believe in a Creator, they come from our Creator. But they are important to protect. They should be protected against all forms of even majority. It is why some of us think it very important to say that we are a Republic, we are not a democracy; that no majority should be able to take away our rights. That is why this is important. I think these questions ultimately get to the Supreme Court. Because no matter what the majority says here, no matter what the majority of the legislature says, the Bill of Rights lists and codifies rights that cannot and should not be taken away by a majority: the rights that we have to be left alone--as Justice Brandeis said, the most cherished of rights, the right to be left alone. But this debate is a long and ongoing debate. For nearly 100 years, from the Olmstead case in 1928 to the present, we have had a discussion and a struggle and a controversy over what parts of our conversations are to be protected and what parts are not to be protected.

I think a lot of our problems really originated with going the wrong way in 1928 with the Olmstead case because we went for a long period of time--we went for two generations thinking that your phone calls were not private and that your phone calls were not protected by the Fourth Amendment. Then, we finally got to the 1960s, and we reversed that and we said your conversations are to be protected. But within a decade we made the wrong decision again and said that your records are not to be protected--that your Fourth Amendment, your records once held by the phone company, aren't to be protected. I think that was a mistake.

I think it is also a mistake to think we are literally talking about paper in your house because there is quickly coming a time in which technology will be such that there will be no papers. Papers will be another word for ``records,'' but your records will not be kept in your house.

They already aren't. There was a discussion of this in whether we can search a person's individual phone, and the Court did rule I think in an accurate way. The Court and one of the Justices said that, basically, the information found on your phone is more personal and more extensive than probably any papers that were ever in any home in a time before electronics. So we are going to have to catch up to electronics, we are going to have to catch up to the digital age, and we are going to have to decide does the individual maintain a privacy interest and/or a property interest.

I, frankly, think that when the phone company holds my records, that they are partly mine; that there is a property interest and a privacy interest I haven't relinquished. Unless I have given explicit permission, I don't think I have given up my privacy. In fact, many times it is the opposite.

Many times what we have actually said is, when I agree to do banking with you or I agree to have you hold my telephone calls or I agree to do Internet searches with you, I have an explicit agreement often. The agreement is so explicit to defend my privacy that when they don't, they are actually fearful of being sued. And so all of this craziness, all of this overreach, all of this loss of our privacy comes with a little additional caveat that is written into all the laws and everybody is clamoring for and it is what they want now--liability protection. They want to be able to violate their privacy agreement. So we give them liability protection. They don't want to be sued, but they realize they are violating and could be accused of violating our privacy agreement.

So as much as I hate and despise frivolous lawsuits, the threat of suing somebody causes them to obey their contract. If they don't have the threat--if you say: Well, we are going to have contracts, but we are not going to enforce them with the threat of a lawsuit, then contracts become meaningless. So it is really important that as we move forward, we try to say to people the privacy agreement you signed is a real document, it is a real contract, and it should be protected.

When referring to the Bill of Rights, Gen. Smedley Butler, who was a two-time Medal of Honor winner and a Brevet Medal of Honor winner, said:

There are only two things we should fight for. One is the defense of our homes and the other is the Bill of Rights.

When I have talked to the young men and women who have fought bravely for our country--young men and women who have lost limbs, families of those who have lost lives--that is what I hear from every one of them. I hear from them that they were fighting to defend the Bill of Rights. They were fighting to defend our Constitution.

What saddens me is that while they were fighting for our Constitution, while they were fighting for our Bill of Rights, their legislators weren't fighting for the Bill of Rights. Their legislators were turning the other way. Their legislators were so fearful of attack that they gave up on the Bill of Rights and said: Here is my liberty, just give me security. This is a longstanding debate. Franklin had it right--those who are willing to give up their liberty may end up with neither.

Now, some would ask: Why am I here today? What do I propose to get out of this? Is there an end point when I will go home and be quiet and quit talking about the Bill of Rights?

I think there could be. I think if the leadership of both parties in the Senate would agree to have a debate on the PATRIOT Act, if they would agree to have amendments and have votes--and I will give some examples of some things that we think--most of these will ultimately be introduced in all likelihood by Senator Wyden and I. I will start with the first one. This is based upon an amendment that he and I have worked on together. This amendment would prohibit mandates on companies that alter their products to enable government surveillance. So this amendment prohibits any mandates from government agencies requiring private companies to alter their security features--their source code--to allow the government to get into their stuff and into your lives.

This amendment would apply to computer services, hardware, software, and electronic devices made available to the general public.

Currently, the government is requiring and sometimes telling companies they can't even tell you this. They are requiring access to certain products. There have been stories of them inserting malware on Facebook, giving you access to Facebook, and then getting into your Facebook account through the Facebook code source. I know Facebook has objected to this and fought them on this, but our amendment would say that the government just can't do this. The government cannot force different social networking sites and different Internet software cannot force them to give the government access indiscriminately.

The question would be: Can the government require things specifically? Absolutely, yes. Present evidence to get a warrant, and realize that when they want to make you so afraid that you give up all your records, realize that warrants aren't hard to get. The FISA warrants are almost without question agreed to, maybe to a fault. Ninety-nine percent-plus of all the warrants ever requested are granted. I think it is not too much of a step to say we should ask and request warrants.

The second amendment we would consider putting forward, if we were allowed to and allowed to have votes on, would replace the PATRIOT Act extension with comprehensive surveillance reform. We would replace the extension of expiring authorities with substantial reforms, as originally proposed by Senators Wyden and Paul and others in the Intelligence Oversight and Surveillance Act of 2013.

This amendment would end bulk collection and replace it with nothing. We would close the section 702 backdoor search loophole, which allows the government to say they are searching foreigners' records but in reality gather up 90 percent of the records being American records and called incidental. We would close this backdoor loophole where actually American records are being collected, not foreign records. We would create a constitutional advocate to argue before the FISA Court, before the intelligence court.

The reason I think this is necessary is that the court has somewhat become a rubberstamp for the government, and we aren't allowing any kind of opposing arguments and we really aren't having any argument. For example, we have loosened the standard from the constitutional standard, which is probable cause, and we have said it is relevant. So we get to relevance. But when you come before the court, I don't think anybody is debating or being asked to prove whether it is relevant. Certainly they must not because they are somehow approving the collection of everybody's records in the United States--which I don't know of anybody who believes the word ``relevant'' can include everybody.

So if we had an advocate or we had someone to say this is the other side--I think it is really important. I am not a lawyer, but I understand they argue with each other all the time and you are supposed to figure out the truth. You argue and advocate for your side, and then somehow you apply the truth or people arbitrate what they think the truth is from this discussion. If only the government argues, you can't get even any sense or form of what truth is.

So what we would argue in our second amendment is that you actually have an advocate that argues on that side. I would go further, though, and say that not only do you have an advocate, you should have an avenue for appeal.

I am with Senator Wyden. I want to protect all the people doing this. I don't want any names revealed. I don't want any agents revealed. I don't want to endanger the people who are risking their lives for our country to gain intelligence. But I do think the law in general can be debated. Senator Wyden talked about how the law doesn't need to be secret; the operations need to be secret.

So we can protect all of that. But I think the law should be debated. For example, the question now whether you have any privacy interest in your third-party-held records--whether the Fourth Amendment protects these at all, that is our constitutional question. That should not be decided in secret, and you really can't have justice decided in secret.

The other part of our amendment would give Americans spied on by the government standing to sue in court and end the practice of reverse targeting, under which the government targets the communication of an American without a warrant by targeting the non-U.S. person they speak to. By some reports, it is even worse than that. I mentioned earlier that an enormous amount of what the PATRIOT Act does--which is supposed to go after foreigners--is actually being used domestically for drug crimes.

There have been reports that the information is being gathered through an intelligence warrant, and then they go back with the traditional warrant after they have gotten information through a lower standard--through a nontraditional, nonconstitutional investigation. Then they go back, and they get the warrant after using this information or they recreate the scenario in order to get the information they need. Then they do not tell the judges they got the information through the intelligence angle.

Another amendment that we would like to ask the leadership of both sides if they would let us introduce it and if we were allowed to debate this and have an open amendment process would be that the warrantless crime could not be used against Americans in nonterror criminal cases.

This was originally the way it was. This is why you have to worry about the slippery slope. Back in the 1970s, they said: OK, we are going to have a different standard to get foreign tariffs. Even I, who want to keep good standards, can accept a little bit of that--a slightly lower standard for people who do not live here and are not American citizens and are not part of our country. It has its dangers, but even I might be able to accept that. But what I cannot accept is that you lower the constitutional standard. You are going to use a terrorist warrant that has a lower procedural hurdle, and then you are going to use it for domestic crime.

That is exactly what is going on now. We should be appalled that they destroyed the Fourth Amendment for certain crimes and we did not do anything about it.

Section 213 of the PATRIOT Act is called sneak-and-peek. The government can go into your house and never tell you they were there. They can look through all of your records. They can steal stuff. They can replace it. They can do all kinds of things and place listening devices--all without ever telling you.

This is in contradiction to what most people have accepted the Fourth Amendment to be. But if you look at who is being convicted with section 213, 99.5 percent of the people are for drugs, for domestic crime. What we have done is that we have taken a domestic crime and we say the Constitution no longer applies. We basically got rid of the Fourth Amendment for these crimes.

For about 11,000 people a year, the Constitution no longer applies to them. We are using a lower standard. If you want to make this even worse, think about who is being convicted of drug crimes in our country. Three out of four people being convicted of drug crimes in our country are Black or Brown. But if you ask who are the kids who are using drugs, equal numbers of White and Black kids are using drugs. But three out of four people in jail are Black or Brown. Then you find out that not only have we messed up the war on drugs such that it has a racial element to it, but we are now using a lower standard that is not the Constitution, and the end result is a racial outcome.

This is an enormous problem. Related to so much of what is going on in our country, so much of the anger you are seeing in our cities comes from this injustice. You now have people going to jail. You have people going to jail for 15, 20, 30 years.

There is a woman by the name of Mary Martinson from Mason County, IA. Her mother just died recently. They let her out of prison for a couple of hours. Her dad is getting older, and she wishes she had been there to help her parents. She did mess up. She was a drug addict. Her boyfriend was a drug addict. They had guns in the home. They were selling the drugs. He was a meth addict. She was probably going to die if she stayed on the drugs, so it was good that she got off the drugs. She got caught. She got 15 years in prison.

You can kill somebody in Kentucky and be out on parole in 12 years. Yet we put this woman in jail for an addiction. She had never been convicted of any other crime. No judge in their right mind would have ever given her 15 years--nobody would have. The judges basically are telling the defendants and telling the press: I would never do this. This is the wrong thing to do, but I am forced to do this. Compound this with the fact that the war on drugs has had a racial outcome. You put the two together and you say: Well, we are no longer obeying the Constitution, and there is a racial outcome.

Where is the hue and cry?

Where is the President on this issue?

I have talked to the President about criminal justice. I think he sincerely wants to help. But here is the thing. The President could today stop this program. He could stop collecting stuff through the sneak-and-peek. He can say we are no longer going to do the bulk collection. Most of these things originated out of Executive order. He could stop these any time he wanted to. We would stop it. We would say no more spying against Americans and no more use of this information for nonterror criminal cases.

We have another amendment that goes to the heart of what I think should be decided by the Supreme Court. We call this the amendment that would protect the privacy of Americans' records held by third parties. I think that your records do retain a privacy interest. This amendment--should the leadership agree to allow us to have amendments--would establish a clear principle consistent with the Fourth Amendment. As it relates to government collection, an individual's records, if given to a third party for a specific business purpose, are as equally secure in their person as those that remain in their possession, unless the third party informs the individual that it intends to share the information. This amendment affirms that the government cannot circumvent warrant requirements by taking Americans' records from third parties, and it protects the constitutional rights during engagement and regular communication and commerce.

I think we had a vote on this a while back. I do not think we were that successful. I think we got four people to vote--to say that your records should be protected by the Fourth Amendment. Most people do not realize this. Most people have no idea that the government's position, and, currently, maybe the Supreme Court's position, is that you do not have any right--Fourth Amendment right--in your records unless you have them in your house.

I think this is something about which the more people understand and the more people are drawn to this issue, maybe people will demand that we have some justice here. We live in an era where ultimately no one is going to have paper records in their house. All of your records are going to be electronic. Because they are held and they are managed somehow by a third party, does that really mean we have given up our rights? The thing is that the government might say if your cell phone is in your house, then they do. But the cell phone is connected to someplace outside your house. Your email is being served on some server somewhere. I see no way that it could be construed that you have given up your right to privacy because someone else is holding the records for you because that is the way in the digital age we have come to hold records.

We talked a little bit earlier about trust. I think trust is incredibly important. I do not discount that the vast majority of people who work in our intelligence community are honest, trustworthy, and patriotic. I think we all want the same thing. We want to protect our country. We want to protect our loved ones. We want to honor the memory of those who died on 9/11 by capturing and stopping the people who would attack us. But the question is this: Can you catch more or less, or are we more or less effective, in catching terrorists if we use the Constitution, if we use traditional warrants?

I think, without question, if you talk to people, they will tell you that they get a great deal more information and more specific information by using warrants.

Let's say tomorrow we elected a President who eliminated the bulk collection of data. Let's just say it happened. What do you think would happen? People say: Oh, the sky would fall. We would be overrun with jihadists. Maybe we could rule on the Constitution. Maybe we could get warrants. The information is out there. There are warrants. If you make the warrants specific, there is no limit to what you cannot get through a warrant. The warrants are given the vast majority of the time.

People complain and say it would take too long; it would be inconvenient. Make it better then. Put your judges on 24 hours a day. Appoint 24 more judges. Put them on call all the time, and let's do this. There is no reason why you cannot have security and liberty at the same time.

Another amendment we have--should the leadership agree to allow us to have amendments and to have votes and to have a debate on this--is an amendment that would require the court to approve national security letters. In a 3-year period between 2003 and 2006, 140,000 national security letters were given out. National security letters are warrants that are below the constitutional bar. They do not meet the constitutional bar because they are not being signed by a judge. They are being signed by the police. You got rid of one of the great protections we had, which was the check and balance that the police would always go to the judiciary. It was a different branch.

The judge is sitting at home, hopefully reading it in a reasoned fashion. The judge is not in hot pursuit. The judge is not letting their emotions--the judge was not just punched by one of the convicts. The judge is sitting at home in a reasoned fashion trying to make a reasonable decision. But still, the vast majority of the time warrants are given.

If there is a policeman outside the house of an alleged rapist, and they want to go in, they call on a cell phone. The judge almost always says yes. It is the same for murder.

Does anybody imagine that there would be a judge in our country and that you call and say: John Doe--we have evidence that he traveled to Yemen last year. We have evidence that he talked to Joe Smith, and we have evidence that he is a terrorist, and we want a warrant to tap his phone.

Look, I am the biggest privacy advocate in the world. I will sign the warrant immediately. I do not know of anybody that will not sign warrants to allow searches to occur. But you have the check and balance so it does not get out of control. What happened and what is happening now is we let down our guard. We have no checks and balances. So what does the government do when you are not watching? If you look away, the government will abuse their power. Lord Acton said: ``Power corrupts, and absolute power corrupts absolutely.'' The corollary to that would be: When you are not watching, power grows exponentially.

They will do whatever they can get away with. They will do it in the name of patriotism. Actually, I do not even question their motives. They believe themselves to be patriotic, but they think we have to do anything it takes--no matter whether it contravenes the Constitution or contravenes the Bill of Rights. The people who do this--their motives are good, but they are confused in a sense, and they do not fully comprehend what we are giving up in the process.

This amendment would require judges to sign national security letters. It would make them more like warrants. In practice, national security letters have become warrants written by law enforcement without prior court review and approval, granting them almost unfettered access to individual email and phone communication data, as well as consumer information such as bank and credit records.

Those subjected to the national security letters must also obey a gag order. Not only does the Government come to you with a less than constitutional permit or a less than constitutional warrant, but they then tell you that you cannot talk about it. You may go to jail for 5 years if you tell somebody you had a warrant served on you.

This amendment would require that a government obtain approvals from a court prior to issuing an NSL to a private entity, thus forcing them to demonstrate a clear need for information as part of an investigation.

Amendment 6 would create a new channel for legal appeals for those subjected to government surveillance orders. This amendment would empower individuals or companies, ordered by the government to hand over information about users or customers, to make constitutional challenges that would be in order in the U.S. court of appeals.

My understanding right now is that it is very difficult to appeal a FISA order. They are secret. You are not allowed to be in the court, so you are not allowed to participate in the process. I think, also, you can get outside of FISA by appealing, but I think you have to ask for something that is called a writ of certiorari. It is a special condition, and it is not so automatic. My understanding is that the court will grant these things, but they do not occur very often. They are an extraordinary thing.

We would like to make it a little bit more of a facility of getting to a normal appeal--the way a normal appeal would occur. We have been pushing to allow that there would be more of an automatic sort of appeal here.

One of the other amendments would say there is no liability immunity for companies that break their agreements with users. Like I said, while I am not in favor of lawsuits and I do not like the idea of frivolous lawsuits, I think if you do not protect the contract and if you have a privacy agreement that says they are not going to share your information with anybody, the only way they will protect it is if there is the threat that they could be sued for not protecting it. I think the contracts become not worth the paper or the click ``I agree to this'' and become completely worthless if the companies are told they can go around it.

The companies have all specifically requested this because I think they fear that every day the government is requesting them to breach the privacy contract. So in order to enable the privacy contract, I think we have to get to a point where people can sue if their privacy is violated.

I think there can be a mixture of opinions on what Snowden did. I think we have to have secrecy and there has to be laws against revealing secrets, so I can't say we should have everybody revealing secrets. At the same time, I think the law says that those who are reporting to Congress should tell the truth.

So we have the intelligence director lying to us and saying the program doesn't exist, and then we have someone committing civil disobedience. When you commit civil disobedience, it isn't that we change the law and say it is OK. What we do is say: You broke the law, and maybe you did it for a higher purpose, but it doesn't mean we will get rid of all punishment for things like this. I think there is one way we can modify it.

Snowden was a contractor, and we don't have very good rules for whistleblowers who are contractors. I would extend the whistleblower statute to people who want to come in and want to tell an authority, an investigator general or somebody, if they want to reveal that they think something is being done illegally.

For example, if Snowden knew that Clapper was lying, a felony has been committed. I would think that somebody who has evidence of a felony and tells the investigator general, ``Look, I have seen this, and I have seen that they are collecting all the records of every American,'' and he says they are not, then he has committed perjury and a felony, and there ought to be some sort of whistleblower statute for that. What we do in one of our amendments is to allow whistleblowers to be contractors as well.

One of the things that has been going on--even predating the PATRIOT Act and goes back to probably the 1980s and 1990s--is something called suspicious activity reports. These are now being done, I believe, by the millions. At one point I looked at it, and 5 million of these had been filed. Every year, hundreds of thousands of these are being filed, and if the banks don't file them, the banks could have their licenses taken from them or there could be $100,000 fines issued to banks.

What we would like to do is to make a suspicious activity report based on suspicion, not just based on a transaction. It would make it more like a warrant where a judge would actually review it and see if there is suspicion to be reporting this activity instead of just reporting activity based on the way people do their transactions.

The problem has been that we now have the IRS confiscating your money, your bank account, based on the way you do your transactions. It is not based on a conviction; it is based on, I guess, the presumption that you are guilty until you can prove yourself innocent. This is also going on with civil asset forfeiture. It is intertwined with records, and as we allow the government to collect our records in an unconstitutional manner, we have to be very careful that then those records are then being used with the presumption of guilt, not innocence.

I have a great deal of questions about Executive Order 12333. John Napier Tye was with the State Department and oversaw some of the freedom of the Internet and government surveillance, and he put out an op-ed that shows a significant concern as far as whether this Executive order may be as big as bulk collection.

I spoke with one of the founders of one of America's larger Internet companies recently, and he told me that not only is he worried about bulk collection, but he is worried that bulk collection might be smaller--the collection of all the phone data might be smaller than the backdoor collection through 702 and the backdoor collection through the government forcing companies to allow them into their software.

Our concern is that we need to look more at the Executive order. I think it is being done in secret, but once again, an evaluation as to whether a law is constitutional or whether a law overstates its purpose should be done in the open.

I see the Senator from Montana, and I will be happy to entertain a question without losing the floor.

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Mr. PAUL. I wish to thank the Senator from Montana for that excellent synopsis of the issues as well as for the great question.

I think the reports by the review committee and the privacy committee, both commissioned by the President, both nonpartisan, are incredibly powerful because not only did they look at the constitutional issue of whether this is a bulk or a general warrant versus an individual warrant, they also saw practically that it wasn't working, it wasn't adding anything to our intelligence. So I think we have sort of a dual reason now to say this is a big problem.

One, there are constitutional questions, which I think are very clear, but then the second practical question is that when we examine the evidence--and the privacy commission actually looked at classified evidence; they looked to see whether it was adding anything to this--I am thoroughly convinced that we can catch terrorists with traditional constitutional warrants.

When I have talked to former high-ranking heads of our security agencies, they freely admit they get more information with a warrant. It is a little more work. It has to be more specific. But I am also a believer in that because we have generalized what we are looking for and it is indiscriminate, that maybe we are missing people because we are overwhelmed with data. We are overwhelmed with things at the airports. I would much prefer that we have less indiscriminate searches at the airports and be more specific in looking at the manifests of who is flying and trying to find out who are the risks.

So I do think that, without question, this is not a constitutional program. It is not even legal under the PATRIOT Act. The courts have said it isn't, and we should do everything we can to stop it.

I appreciate the support of the Senator from Montana.

One of the things about this issue is that it really is a bipartisan issue. It is an issue where there are people who feel strongly on both sides of the aisle. The Senator from Oregon was here earlier and the Senator from New Mexico, and I now see the Senator from West Virginia, who is also a loud and consistent voice on this.

Does the Senator from West Virginia have a question?

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Mr. PAUL. I want to like it because it ends bulk collection, and I am all for ending bulk collection. So we all agree--the people for it agree with the problem; it is a question of the solution.

It says there have to be specific selector terms on U.S. persons. Part of my problem is that ``persons'' is still defined as corporations. My concern is that you could put the word ``Verizon'' in there, and the government wouldn't be collecting the records, but you still could get all records from Verizon. Does the Senator see what I mean? That is one of my concerns with the way it has been written.

My other general concern is that we would still be having bulk collection. It wouldn't be bulk collection by the government, but it would still be bulk collection but through the phone companies.

I don't like the liability protection because I think it makes it more likely than not that the privacy agreement won't be as respected if they cannot be sued for violating the privacy agreement.

Those are a couple of concerns. I don't know if they are insurmountable, but those are a couple of concerns.

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Mr. PAUL. I guess the question I have is that we have some of those restrictions now, but they seem to think that those restrictions don't apply--the people interpreting what we have now are interpreting 215 to mean we can collect all of the American records in bulk.

If there were a circumstance where I was necessary to pass USA FREEDOM and if it were that close, if people were willing to look at the bill and say we would make a person, an individual--

see, the big thing for me is that the warrant should be individualized. And I am worried that if we use the word ``person'' and if it can be replaced with the word ``Verizon'' and we still collect all the records, I would feel disappointed if we thought we got rid of bulk collection and a year or 2 from now, when they finally admit it, they admit: Oh, we are still doing the very same thing. We are doing Verizon. We are getting all of Verizon's records. We are just making them process it, and we are paying them for it.

That is what I fear. I want to make sure that doesn't happen.

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Mr. PAUL. I guess that is also where I probably differ. I think we are just as safe or safer with nothing, because the Constitution allows the searching of records. And I am all for it, but I would do it through warrants.

The point is that in metadata, one can do a hop or two with these less-than-constitutional warrants or whatever. But with a real warrant, we can go 100 hops into the data. I really would chase the rabbit down the hole. I would look very hard with suspicion, and I think warrants are generally easy to get. This is the point I don't get about why we have to have warrants with a lower constitutional standard, because I think the FISA warrants are almost never turned down, but neither are criminal warrants. If you are a policeman standing in front of a house, you almost never get a no. But if you are a policeman saying, I want to search all my neighbors' houses, then the judge is going to say no, and that is a good thing. So I think traditional warrants--I think people have somehow just convinced themselves that we can't catch terrorists with traditional warrants, but I think you can go through a lot of data with traditional warrants, too.

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Mr. PAUL. I think that also and within the context of--we have six or seven amendments that we would like to offer. I can't guarantee that we could win any of them, but there is a chance maybe we could win another reform.

So for example, one of the reforms that some people think may be as important as all the bulk collection is the ability of the government to tell an Internet provider that they have to create a backdoor to their product for the government to go through--and some of the backdoor stuff through 702.

We think there are some other things that may well be as big as this. I also think there is the ability of the government to not only use traditional warrants. They have some they are using under Executive order, as well, and we still have a host of other types of warrants and subpoenas being used. But I would never be for this in a heartbeat if I thought it was going to put the country in danger. I think we will be safer because of it and so will our liberty.

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Mr. PAUL. I am not sure I understand the question, but I do believe as to the court case right now, the way it stands--if the USA FREEDOM Act had passed last year, I think there was a chance that it might have made the court case moot because it would have said that Congress has already acted and Congress now has given an authority for a variation of this and Congress already fixed the problem. So there is a part of me that would like to see the appellate court case go up to the Supreme Court. It has been remanded to a lower court so I don't know if it is ever getting there. But we ultimately have some questions in our country that won't be decided until we have a Supreme Court case.

One of those questions is, Do papers have to be physical and in your house? What if they are digital and lodged somewhere else? Do you have any right of privacy, any Fourth Amendment protection at all for records that are held somewhere else? The current legal opinion doesn't really give any protection to third-party records. I think that needs to be fixed, because technology has made it such that our records are no longer going to be real records that you can hold in your hand. I think almost all of our records will be virtual and held in space somewhere, and I think you still have to have a personal privacy protection in those.

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Mr. PAUL. There is a lot that I like in the bill. It is just a matter of whether or not I can be convinced that it doesn't allow bulk collection under another name. I am still worried about that. But I am open to it.

Some of these things--this is a very important bill. I mean, we could have a week of discussion on this bill, and amendments and a process. The only reason we are getting a little bit of this is because I am kind of forcing the issue, but I would like to see the amendments voted on. All the other stuff we are doing around here is important but has no deadline. We could have done it next week or 2 weeks from now--all the stuff we are doing right now.

But anyway, that is what I am going to be asking for--the ability to present five or six amendments, vote on them, and then we will see. And I am more than willing to talk with the authors of the USA FREEDOM Act to see if there is a way, but it is going to have to involve some give and take to figure it out.

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Mr. PAUL. I thank the Senator from West Virginia. I think he has made some really good points. I think a lot of us have come to the agreement that there is a problem with bulk collection. I don't think we have everybody, but I think we have a significant number. The court agrees with us. So I think we are getting closer.

One of the groups that we have talked about in looking at where we are, whether this is a constitutional or legal program--is it is pretty intriguing to look at the report that comes from the Privacy and Civil Liberties Oversight Board. This is a bipartisan board. It is a board that was put in place, and I think the appointees are bipartisan appointees.

When they met, they came to the conclusion, though, that the bulk collection of records is not warranted and not given sanction by the PATRIOT Act. They had four different reasons why they say that the telephone records program--the bulk collection of our records--does not comply even with the PATRIOT Act. The first reason they say is that there is no connection to any specific FBI investigation at the time of the collection. So, basically, when they collect your phone records, they are not even alleging that they are related to any investigation. But that is what the statute says. They are supposed to be relevant to an investigation, but there is no evidence and nothing is even presented that there is any investigation even going on. The investigation actually starts after they have collected all of your records.

So how can section 215 say that you can collect these records because they are relevant to an investigation that has not yet even begun? They use this big data case later on when they say there is going to be an investigation. So I think their No. 1 reason is pretty strong. There can't be a connection or relevancy because there really is no investigation when they collect your records.

The second reason of the privacy commission was that the records are collected in bulk, potentially encompassing all telephone calling records across the Nation. They cannot be regarded as relevant to any investigation without redefining the word ``relevant'' in a manner that is circular. Relevant sort of means that there is some sort of criteria that means that there is some pertinence, that there is something about the records or something about the investigation.

For example, if there is someone in the northwest section of Washington, DC, and we saw something happen there. We are saying we want to look at the records there. Even though it might be bulk collection, it would be at least relevant to some sort of investigation. There would be some pertinent factor. But they are just collecting everybody's records. It is completely without any relevancy. And I love the way they put it--that this would not be relevant unless we redefine the word relevant in a manner that is circular, unlimited in scope, and out of step with case law from analogous legal context involving production of records.

The third reason why the privacy board said that this program is not legal is that it operates by putting telephone companies under an obligation to furnish new calling records on a daily basis as they are generated, instead of turning over records they already have in their possession. This is an approach lacking foundation in the statute and one that is inconsistent with FISA as a whole.

The final reason they say that this program is illegal--this is the President's own privacy commission--is that the statute permits only the FBI to obtain items for use in the investigation. It does not authorize the NSA to do anything. So section 215 of the PATRIOT Act is what they are saying they are using as justification. It allows the FBI to collect records. It doesn't allow the NSA at all. So they are using a statute that was intended for the FBI to say the NSA can do this. So I think the reasons are pretty clear--four specific reasons why the PATRIOT Act does not justify the collection of these records.

The next thing the policy committee looked at was they looked at and they tried to decide whether there has been any practical effect. I know Senator Leahy was a part of this, looking at whether any of these things actually did catch terrorists. But this is what they concluded, and they actually looked at the classified data. So the Privacy and Civil Liberties Oversight Board looked at the data, looked at the classified data, and this is their conclusion:

However, we conclude that the Section 215 program, the bulk collection, has shown minimal value in safeguarding the nation from terrorism. ..... we have not identified a single instance involving a threat to the United States in which the [bulk collection] program made a concrete difference in the outcome of a counterterrorism investigation. Those are pretty strong words. The Policy and Civil Liberties Oversight Board commissioned by the President, which is bipartisan, looked at the classified data and said it didn't find a single incident--not one incident--in which it made a concrete difference in the outcome of a counterterrorism investigation.

Moreover, we are aware of no instance in which the program directly contributed to the discovery of a previously unknown terrorist. .....

What does this mean? We are not pushing a button and generating terrorists out of this. The terrorists are coming from real information. You have to realize that this misinformation and this wrong-headed information has been used forever--for 15 years--to justify the fact that we should give up on the Fourth Amendment and we should give up on protections.

Over and over people say that if we only had the PATRIOT Act, we wouldn't have had 9/11. The two terrorists they claim we would have gotten were in San Diego. We already knew about them. An informant lived with them for a year. The FBI wasn't talking to the CIA, they weren't looking at lists, and they didn't know they would come back. The CIA didn't know. It had nothing to do with having bulk collection of our records. We knew about these people. It was crummy work. It was people not doing their job.

I repeat: No one was ever fired. We gave rewards. We gave medals of honor to everybody in the intelligence community and no one was ever fired. There were some true heroes--the FBI agent in Arizona and the FBI agent in Minnesota who actually discovered potential hijackers. The 20th hijacker was captured before 9/11.

The 20th hijacker was captured a month before 9/11. That is the person who should have gotten the Medal of Honor. The person who would not listen to him should have been fired. I have no understanding or awareness that anybody was ever fired over 9/11.

The Policy and Civil Liberties Board goes on to say that our review suggests that section 215 of the PATRIOT Act, the bulk collection of records, offers little unique value. They explore a little bit of whether there is a privacy problem with collecting all of these records and what are the implications of collecting all of these records. The government's collection of a person's entire telephone call history has a significant and detrimental effect on an individual's privacy.

Beyond such individual privacy intrusions, permitting the government to routinely collect calling records of the entire Nation fundamentally shifts the balance of power between the State and its citizens. With its power of compulsion and criminal prosecution, the government possesses unique threats to privacy when it collects data on its own citizens.

Compound this with the fact that the government--you could say: Well, they are just collecting this data at a lower standard, but if you are not a terrorist you do not have to worry. But here is the problem. They are collecting this data with the lower standard, a less-than-constitutional standard, but then they are also prosecuting you for domestic crime.

Section 215 of the PATRIOT Act is being used 99.5 percent of the time for domestic crime. We are putting drug dealers in jail. That is another question and another story. But then we should vote on it as a country. OK. For drug dealers, we are not going to have the Constitution anymore, we are going to have the PATRIOT Act for drug dealers. Let's be honest about it. The war on drugs has had a disparate impact, a disproportionate impact on people of color. So you have to admit to all the young Black men and all the young Brown men you put in prison that we are no longer using the Constitution to stick you in prison, we are using the PATRIOT Act to put you in prison.

We need to be honest with people. If the PATRIOT Act is about terrorism, they should adopt my amendment that says you cannot be put in jail for a domestic crime under the PATRIOT Act. Why? Because the PATRIOT Act has dumbed down and loosened the standards. We do not have probable cause, we have relevance. Realize that relevance, as they say in the Commission, has become completely circular and devoid of meaning, if you are saying that all the records in the country are somehow relevant to an investigation that has not yet begun.

They make a great point here about the fact that not only does this stifle or invade your privacy, it may well stifle your speech and your association. If you are going to be associating with minority causes, unpopular causes, whether you are a kid from the North who went down to be in favor of civil rights, whether you are someone who belongs to the NAACP or the ACLU, they say: Yet, even though there is no evidence of abuse--

And this is the big argument. Everyone says: Well, there has never been any abuse, so it is fine to keep doing this.

Yet, while the danger of abuse may seem remote, given historical abuse of personal information by the government during the 20th century, the risk is more than theoretical.

I could not agree more. Moreover, the bulk collection of telephone records can be expected to have a chilling effect on the free exercise of speech and association because individuals and groups engaged in sensitive or controversial work have less reason to trust in the confidentiality of their relationships as revealed by their calling patterns.

Realize that they are taking your phone records, your calling lists, your buddy lists, your ISP address, your email. They are integrating this into some network where they can pull your name up and find out who are all your buddies, who are all your friends, who are all your Facebook friends.

Realize the potential danger of having so much information, so much of a dossier on every American citizen, even if they are not using it. But when you think that, well, this is fine because we are not doing it and good people are running these agencies, realize that the head of the Agency lied to us about this program at all. He said it did not exist. So when you get to be trusting these people to protect your individual information, realize that the most--at the very top of the intelligence community, the most famous person in our country dealing with intelligence lied to a congressional committee and said that this program did not even exist.

The report goes on to say that the inability to expect privacy, vis-a-vis the government and one's telephone communications, means that people engaged in wholly lawful activities, but who for reasons justifiably do not wish the government to know about their communications, must either forgo such activities, reduce their frequency or take costly measures to hide them from the government surveillance.

The telephone records program thus hinders the ability of advocacy organizations to communicate confidentially with members, donors, legislators, whistleblowers, members of the public.

Initially, in the 1970s when we set up the surveillance court, the security court, the FISA Court, they were done with individualized warrants. They got information through individualized warrants.

Beginning in 2004, though, the role of the security court changed when the government approached the court with its first request to approve a program involving what is now referred to as bulk collection. For the first several years, we did bulk collection--they just did it. They just said it was under the inherent authorities of the President. This should scare us because there are people who believe that the inherent authorities of the President are unlimited. That would not be a President. There would be another name for that.

But if there are no limits to what the President can do, there is another name for it and it is not President. The Commission goes on to say that the judge's decision--their decisionmaking would be clearly enhanced if they could hear opposing views. So the privacy commission advocates exactly what I am advocating for, that you should have a lawyer in there with you and that there should be an adversarial type of procedure.

Because the thing is, is that it is like any other dispute. If you have ever heard two people arguing, figuring out the truth is listening to both sides and trying to gather what the truth is. So I think that we get to the truth a lot more if we had someone asking questions. Realize also that section 215 of the PATRIOT Act says that the information has to be relevant to an investigation.

Without having someone in there to argue your case, the court appears to have not really had a great deal of discussion or, to my mind, thought about whether bulk collection is somehow relevant. You might argue that if there were opposing sides, as in a traditional court, that maybe someone would stand up and say to the judge: How can this be relevant? What investigation is it relevant to?

See, I think the FISA Court became such a rubberstamp that you were not even having these questions asked because how could you ask that question. If you are an advocate for someone who does not want to give up their information, how could you ask the question whether it is relevant to an investigation, and then the government would say: Well, we are going to do it. It will be relevant when we do an investigation.

No court, you would think, would understand or accept that, if it were an adversarial procedure where you have a lawyer on both sides. I don't think you can truly have justice--I think you can have a court that meets in secret. I think courts can protect individual names and I want them to. I thought Senator Wyden made a great point when he was out here.

Intelligence activities, at their core, we have to protect the names of operatives. You do not want the code out there, like if we have a great code and we are stealing information from our enemies and we are eavesdropping on our enemies, we do not want the code out there that shows how smart we are and how our technology works. But if we are going to do something like collect the records of all Americans, that is a constitutional question.

You can have opinions on both sides of it. I do not think there is much of a valid constitutional reason for believing in this. But you can have an opinion. In a democratic Republic, we could argue these points back and forth. But you really would have to have the ability to have a discussion over those things. Because I think without that, I do not think we can actually get to justice.

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Mr. PAUL. I think what is still unclear to me is what will be taken up and what votes there will be on this. I believe that the debate is a very important one, that it is one we should engage in and have a significant time to talk about, and there should be amendments. As you know, sometimes the amendments get offered and then things sort of fall away.

I want to ensure that on something this important that comes up only once every 3 years and on which the court just below the Supreme Court has said we are doing something illegal, that we don't just gloss over and say we are going to keep on doing something the courts have said is illegal.

As far as the end result of where it goes, I want to end bulk collection. So I agree with all of the people on the USA FREEDOM side. I am a little concerned that we might be transferring government bulk collection to privately held bulk collection.

In the selector terms they use in the USA FREEDOM Act, it says ``person.'' It says ``specific person.'' I think it defines ``person,'' though, as still including corporations. My concern is that you could write into specific person ``Verizon'' again, and we are back where we started.

So if we could get to a point of, No. 1, allowing some amendments to be voted on and maybe changing it such that you can't have--see, to me, the biggest issue here is a general versus a specific warrant. I don't want warrants that you can get everybody's records all at once or even one company's. I want the warrant to say--and I am fine with getting terrorists. I want to get terrorists. If John Doe is a potential terrorist, put his name on it. You can go as deep as you want into the phone records, but do specific warrants. But I don't like it if you just say: I want everybody's records from a phone company.

So I am concerned that we are trading one bulk collection for another form, and I need to be a little more assured on that. I think there might be room for it if people were open to discussion on how we could figure out a way to get something through because it is going to difficult, as you know, to get to 60. It is going to be hard either way. The other side wants the bulk collection, and if people want the bulk collection, they want more of it. And then there are at least half of us who think it is the wrong thing to do.
I don't know the outcome, but I was uncertain enough that I came today to come to try to draw attention to it. And if I had a request today, it would be the leadership to let amendments to go forward, that we agree on having a pretty free amendment process.

This is only every 3 years, and it is a big deal. We don't have much legislation come before us where an activity has been said to be illegal by an appellate court, we continue to do it, and then people want to advocate to continue to do something that is illegal. But I am going to try to see what I can get. I am hoping to get an answer--maybe today--from leadership on whether they will allow amendments to this. I want to be pretty certain that is going to happen because they seem to fall away sometimes.

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Mr. PAUL. I thank the Senator from Montana, and I think that is further evidence that there is bipartisan support for the Constitution.

The PATRIOT Act went too far. We have heard from both Senators from Montana, from opposite parties, who both wanted to defend the individual, wanted to defend the Bill of Rights, and think that we have let the government go too far. I think the American people agree with this as well.

I think without question--this is one of those things that are kind of perplexing, if you think about it. If you ask most Americans, if you do a poll or a survey or ask most Americans ``Should the government be allowed to look at your phone records without any suspicion that you have committed a crime?'' I think there are a very low number who think that. But then when you get to Washington, it is almost the opposite. You have people in Washington who have, I think, viewpoints that are really out of step with what the American people want.

I think the American people really have decided that the bulk collection of records is wrong, that it is unconstitutional. The second highest court in the land has said it is illegal. Yet, you still have a significant body of people in this country saying: Not only keep doing it, let's do more of it.

The problem is that if we are going to allow records to be collected without individualized suspicion, what we are doing is allowing something, when we talk about bulk collection, that has no sort of determinants for what suspicion is. You can imagine what the danger of that is if you apply that to everything.

Also, in an age where we have computers that can analyze and hold so much information--they are building them bigger and bigger and gathering more and more and processing this information--there is great danger that could come from this.

I wrote something about ``1984'' a couple of years ago, and I said when I read it the first time--and a new big brother, you know, was the danger of all these things. I thought, Oh, this is terrible. But I felt comforted. I read it probably in 1978.

We didn't have the technology to eavesdrop on everyone. We didn't have the technology to know everyone's whereabouts. We didn't have the technology to have cameras in every house.

In the book, they talked about looking at people back and forth through two-way televisions and monitoring. Everybody, as you know, had to be careful where books were placed. You had to read in secret basically. But because the technology didn't exist when I read ``1984,'' I really wasn't as concerned about it. But the thing is that you don't lose your freedom in one fell swoop; you lose it a little bit at a time.

People say: Well, the people doing this are good people.

It is like the President said. When the President signed legislation a few years ago that said that an American citizen can be detained without a trial, he said: But I am a good man, and I won't use this power.

It is sort of a fundamental misunderstanding of law and the rule of law that you think that the goodness of yourself or the goodness of the individuals around you somehow is the protection of the law. The law is really to protect you against bad people. The law is to protect you when bad people get in office. The law--and those who believe in the rule of law--is based on the fact that there is an understanding that in the time of history, people were democratically elected who were bad people and that people, once given power, become addicted to it and they want more of it.

Lincoln once wrote that any man can stand adversity, but if you want to truly challenge a man, give him power. That is what we are talking about. We are talking about unlimited power. We are not even talking about power that is constrained by law at all.

The whole idea that the PATRIOT Act has anything to do with the bulk collection is a farce. The President's privacy commission has really put this in bold for us, that really there is nothing about the PATRIOT Act that has any resemblance to what we are doing with bulk collection. So that is not only the rule of law, that is people within government, within the executive branch, who have made the decision that they are going to do whatever they want.

One of the things that worries me about this debate--and I think it is good that we are having the debate--there is apparently a section of the PATRIOT Act as we passed it the last time that says that if the PATRIOT Act is not extended, all things previously being investigated before will continue. So we really kind of have a perpetual PATRIOT Act, if you will. That worries me a little bit, but then it worries me a little more that we are not even really paying attention to the PATRIOT Act; we are doing whatever we want. It is sort of a lawlessness that allows us to collect bulk records because there is no relevance to an investigation. As they said in the privacy commission, we are collecting the records before there is any investigation. So there is no relevancy to an investigation. The investigation hasn't started yet, unless the investigation could be defined as everything.

I like the way they put it. They said we would have to destroy the definition of ``relevancy'' to believe that there is any component of relevancy to these investigations.

But we are collecting records of every American all of the time right now. It may not be just phone records; they say the biggest source of collection now is probably actually through section 702 of FISA, the FISA amendments. We are not exactly clear who gets scooped up in that.

Once again, if these are the records of foreigners, if these are the records of people bent upon attacking us, I am all for getting that. But the way they are collected--and by some allegations, intentionally so--we are sometimes targeting a foreigner, so we don't have to use a standard at all in order to get information on an American.

So let's say they want information on you. I am not sure why, because some of this is being used for drug crimes and domestic crimes. So let's say they want information on you and they don't want to get a warrant or a judge says no. In fact, that sometimes happens, that the FISA Court judge says no and then they use one of these other end-around ways that don't even require a FISA Court judge.

The level of lawlessness is appalling. The level of lawlessness is astounding. It disappoints me that the President, who was once considered by some to be somewhat of a civil libertarian, does nothing. When the President ran for office, the President said that national security letters ought to be signed by judges. He was in the exact same place where I am on civil liberties with regard to these warrants, the national security letters. Yet, his administration issues them by the hundreds of thousands. I don't think they are even reporting these anymore for us. I think they were reporting them for a few years, but we are no longer getting information.

But it disappoints me that the President is not really willing to do anything about this. The President could end the bulk collection tomorrow. It is done by Executive order; it could be undone by Executive order.

It is disingenuous, at the very least, that the President says: Oh, yes, we are going to balance liberty and security.

Well, no, he is not. He is not balancing anything. He is just continuing to collect all of our records without a warrant. He is continuing to do bulk or general collection of records without a warrant.

I think the American people are ready for us to be done with this. My hope is that during today we will call attention to this and that the American people will say: Who are these people who want to keep collecting our records without a warrant, and why do they still want to do this when the people who have investigated it have determined that no one has been captured by this program, no one has been uniquely identified by this program?

So there really is a consideration of whether we are going to listen to the American people. Are we going to wake up? Are we a representative body?

This question is, Are we going to allow a debate on something that only comes around every 3 years or are we going to say ``My goodness, it is the weekend, it is Memorial Day weekend, and we are up against a deadline, and we just don't have time to listen to this.

We don't have time to talk about the Bill of Rights because we just don't have time. I know it has been 3 years that we have known this date was coming up, but we don't have time''?

I think at the very least we could make time, and that is my request today. My request of the leadership on both sides of the aisle is: Can we not make time? There are at least 10 or 15 of us who will cosponsor about 5 or 6 amendments that we want votes on. Frankly, I think with the mood of the country, we have a chance on a few of these.

I would like to see how a vote would turn out on the idea, for example, that we are using a less-than-constitutional standard to gather information that we say is for terrorism, but then we put people in jail domestically for crimes that are completely and entirely unrelated to terrorism; that whether or not we can use information gathered in a nonconstitutional or a less-than-constitutional way is going to be used for domestic crime.

If you believe that, it means we are carving out in our domestic laws an area where the Constitution doesn't entirely apply. Section 213 allows the entering of the house in a nonconstitutional way--a way that, if it were done in a straight-up fashion, the courts would say it is illegally gathered information and wouldn't be admissible in court.

I think we ought to have a vote. Is the PATRIOT Act our less-than-constitutional means of gathering information to be used in domestic court?

Here is the other question, if they will be honest with us: Are they using them in any other courts? Are there IRS investigations that begin as terrorist investigations but end up in IRS court?

In some ways, I think yes is the answer. We have now the IRS basing investigations of people maybe for political purposes but definitely for the purposes of whether individuals are doing transactions in certain ways or whether their records are in a certain way. And because it is done this way, we are not really requiring convictions before we take their stuff. This is a separate but related problem because it has to do with using records to gain entrance to people and to then take their stuff without a conviction.

I think that is an important question. Are we innocent until proven guilty? Are we really going to allow the government to take possession of your things, to take possession of your things without a conviction? I would think the presumption of innocence is an incredibly important doctrine that we shouldn't so casually dismiss.

This is a poll that was commissioned by the ACLU on Monday, and they asked a sample of 300 likely voters between the ages of 18 and 39 a few questions.

It says: Which of the following statements about reauthorizing the PATRIOT Act do you agree with more?

Some people say Congress should modify the PATRIOT Act to limit government surveillance and protect Americans' privacy. Sixty percent agreed.

Other people say Congress should preserve the PATRIOT Act and make no changes because it has been effective in keeping America safe from terrorists and other threats to national security, like ISIS or Al Qaeda. That was 34 percent.

Those are the overall numbers. If you look at it by all parties--Democrats, Independents, and GOP--it is 58 percent or greater. In fact, Democrats and Republicans are pretty equal, which is interesting, with 59 percent of Democrats and 58 percent of Republicans thinking we have gone too far in the PATRIOT Act and that Americans' privacy is being disturbed by the PATRIOT Act.

If you look at Independents, it is 75 percent among men who are Independent and 65 percent among women who are Independent.

The survey asked people: Do you find it concerning the U.S. Government is collecting and storing your personal information, like your phone records, emails, bank statements, and other communications? Eighty-two percent are concerned the government is storing this information.

Over three-quarters of voters found four different examples of government spying personally concerning to them: The government accessing personal communications, information or records without a judge's permission--83 percent--using that information for things other than stopping terrorists, such as I mentioned, doing convictions for drugs, were the most compelling examples for voters.

With regard to whether the government accesses any of your personal communications, information or records you share with a company without a judge's permission, people were asked to tell them whether they were concerned with this issue. Eighty-three percent were concerned.

When asked about the government using information collected without a warrant for things other than stopping terrorist attacks, 83 percent were concerned.
When asked about the government allowing private companies to use public school technology programs to track online activities of schoolchildren, 77 percent were concerned.

When asked if the government performs instant wiretaps on any phone or other telecommunications devices located in the United States, 76 percent were concerned.

From this ACLU study of young people--I believe they were all ages 18 to 39--participants were asked whether or not these were conditions that would lead you to believe that Americans need more protections of their privacy: Local police and the FBI need a warrant issued by an independent judge for a valid reason before they search your home or property without your permission; the same should be true of your email and phone records. And 84 percent agreed.

If you ask that question in Washington, it is about a 10 or 15 percent question. Most people in Washington don't think your email or your phone records should be protected by needing a warrant. But if you ask most Americans the question--particularly young Americans--should your email or your phone records be protected by a warrant? Most people say yes.

The government requires some companies to intentionally include security loopholes in their services to make it easier for law enforcement to access your information. These are these backdoor things where they can insert malware. This makes the government less safe by leaving us vulnerable to terrorists and spies of foreign countries who want to harm the United States. Eighty-one percent were concerned with this and thought we should have more privacy.

I think it is clear the American people are concerned about what we are doing. What isn't yet clear is whether the message has been transmitted to Washington; whether or not there is enough of a majority growing in Washington to actually do something about this. But I think the numbers are growing.

Over 300 people in the House acknowledged there was a problem and passed legislation. I have mixed feelings on the legislation. I think, without question, I agree with those who voted for it that bulk collection of records is wrong and that it should end. I have been a little more in the camp, though, that we should just end the bulk collection of records and replace it not with a new program but with the Constitution.

I personally think we could survive with the Constitution. I think we could also survive and catch terrorists with the Constitution. In fact, I think we can get more information with the Constitution. I think valid warrants are much more powerful. A valid warrant allows a great deal more information and it is also specific.

Once we are doing valid warrants, we are not doing this sort of dragnet. We are not doing this sort of vacuuming up of everything. We are not becoming overwhelmed with a lot of incidental data. We are specifically going to the heart of things. We are specifically going to the core of whether we can actually get the people who are attacking us.

When we look at the privacy report we have talked a little bit about--the Privacy and Civil Liberties Oversight Board, a bipartisan board that basically said very explicitly to the President that what he was doing is illegal--it does still boggle my mind the President was told by his own privacy board what he was doing was illegal and he just keeps doing it. It somewhat boggles the mind that he was told by the appellate court that what he is doing is illegal and yet he just keeps doing it.

It is an incredible deflection. It is incredibly disingenuous when the President says: Well, we are going to balance liberty and security, and I am just waiting for Congress to tell me what to do. Well, he didn't wait for Congress to tell him to collect the phone records. In fact, we never did such a thing.

Even the people intimately involved with passing the PATRIOT Act--those who were the cosponsors and authors of the PATRIOT Act--have all said they never intended and don't believe the PATRIOT Act gives any justification for bulk collection of records. So Congress never authorized the bulk collection of records.

Two different Commissions the President has put forward--the privacy and civil liberties as well as the review commission--have both told him it is illegal. Yet he keeps going on.

I have heard very little questioning of the President or his people about this. I kind of wonder why we don't ask more questions, why we just sort of accept that a program that is said to be illegal by the courts, a program that is said to be illegal by two different independent commissions--why wouldn't we just stop it? Why does the President not have the wherewithal to stop it? It disappoints me.

The program was actually begun even before the PATRIOT Act was finalized. We did this for a couple of years simply by Presidential edict. This is another concerning development in our country; that more and more of our government is run by Executive edict or by Executive order--thousands and thousands of Executive orders.

In the 1950s, we had a discussion of Executive orders. I think it is the only time it has gone to the Supreme Court with the Youngstown Steel case. In that case, the Court came down and said there are three different kinds of Executive orders: There are Executive orders that are clearly in furtherance of legislative action, and those are perfectly legal. There are Executive orders that are debatable, whether they further legislative action or not. But then there are some Executive orders that are clearly in defiance of what the legislature has done, and these are clearly illegal. And the Supreme Court struck down what Truman had done.

I think we need to revisit that debate. Because what is happening in our country--and it may well be the biggest problem in the country and is part of what is going on with this bulk collection but really is part of a bigger problem--is that power has drifted away from Congress or has been abdicated and given up. We gave the power to the Presidency, and we didn't do it just in one fell swoop. It wasn't just Republicans. It wasn't just Democrats. It was a little bit of both, and it has been going on for probably over 100 years now. I think it accelerated in the era of Wilson, but over decades it has gotten bigger and bigger and bigger. Under the New Deal, the executive branch grew an alarming amount, but more recently it continues to grow by leaps and bounds.

It may well be that the No. 1 issue we face as a country is that we have had what some have described as a collapse in the separation of powers. Madison talked about that each branch would have ambition to protect their own power; so we would pit ambition against ambition and then each would jealously guard their power, and, as such, power wouldn't grow. Power would be checked. But power has grown. It has grown alarmingly so and mostly grown and gravitated to the executive branch.

In the short time I have been here, I have seen that in many ways the least of our bureaucrats are more powerful probably in some ways than the greatest of our legislators, and the most powerful of our legislators are somewhat of less power than bureaucrats.

Almost every constituent that comes to talk to me from Kentucky and has a problem with government--as we explore the problem and explore the solution, we discover that Congress didn't pass their problem. Congress didn't write the rule that is beleaguering them. Congress didn't inflict the punishment that is making it difficult for them to run their business. It was done by an unelected bureaucrat.

This has grown, and sometimes it has grown from even when we had good intentions. We tried to do the right thing and it turned out wrong. Probably that is really the story of Washington as well.

Take even the Clean Water Act. The Clean Water Act I support. I would have voted for it from 1974. It says you can't discharge pollutants into a navigable stream. I agree with that. The problem is that over about a 40-year period we have come to define dirt as a pollutant and my backyard as a navigable stream. So, once again, we have taken our eye off the prize.

The things we really ought to have the government involved with--big bodies of water, bodies of water between the States, rivers, lakes, oceans, air--there is a role for the government to be involved. But because we have people abusing the rights of private property owners and saying, if you put dirt in your backyard, we will put you in jail, it has become sort of to the point of craziness. But it is all executive branch overreach.

There was a case that went to the Supreme Court a few years ago in Idaho. A couple lived near a lake but about a mile from a lake. They didn't live on the lake. It was on an incline, and there were houses on both sides of their property. So they bought their property and started doing what everybody else did--back-hoeing, creating a footprint, filling it and putting down footers.

The EPA showed up and said: You are destroying a wetland, and we are going to fine you $37,000 a day.

They were kind of like: Well, I thought if it were a wetland, there would be water or standing water or it would look like the Everglades or there would be some sort of evidence that it was wetlands.

The EPA said: Yes, there is evidence. If any one of 300 different species of plants grows in your backyard, we can define it as a wetland. If we can take leaves and flip the leaves over and they are black on the bottom, it indicates there is moisture on the leaves and you could be a wetland.

This all came out of crazy executive overreach. We did not do any of that. Congress did not do one iota of this expansion. It was done some by these law courts--these EPA courts--but it was done a lot by executive definition of what a wetland is.

In the early 1990s, under a Republican President, we redefined wetlands. They commissioned a book--a 150-page book, 200-page book--and they just redefined what a wetland was. By redefining what a wetland was, we doubled the amount of wetlands in the country overnight--not by preserving land but by redefining a lot of land that really is not a wetland.

Now, through the waters of the United States, we are connecting everybody to the ocean somehow and saying that every bit of land is somehow connected to navigable water.

I was talking to one of the Senators from Idaho a year or so ago and I liked what he told me. He told me: In Idaho, we have a very precise definition of what a navigable stream is. You put a log in of a two-inch diameter, and it has to float 100 feet in a certain period of time. I just loved the definition of it because that sounds like a stream that is probably moving and there is water in it. But we now say a crevice in the side of a mountain, if when it rains water goes over, it is a stream. But as a consequence, we are shutting down America.

People complain about jobs, but they are all for these regulations, and then they complain that they don't have a job.

One gentleman decided he was going to put dirt on his land in Southern Mississippi. It was what he considered to be uplands. There were trees growing on it, so usually trees are not really a typical feature of wetlands. His daughter was 43 at the time and he was 70. They were going to develop the lots and sell the lots, and so he dumped some dirt there. The EPA got involved and they convicted him using the RICO statutes. This is what you are supposed to get gangsters and drug dealers with. It was conspiracy. They got him for conspiracy to violate the Clean Water Act by putting clean dirt on his own land where there was no water to begin with. He was given 10 years in prison. He just got out of prison about a month ago. He is now 80 years old. That is what is happening in America.

So if you wonder why some of us are worried about our records being snatched up, we are worried that our own government has run amok, that our own government is out of control, and that our own government is not really paying attention to us.

To put a 70-year-old man in prison for 10 years for putting clean dirt on his own land--the person who did that ought to go to jail. They ought to be put in a stockade, publicly flogged, and made to pay penance for a decade for doing something so stupid.

But the thing is this is going on.

A guy named John Pozsgai was a Hungarian immigrant. He came here from communism and he loved our country. He worked hard and he had a mechanic shop in Morristown, NJ. It wasn't in the greatest part of town. It was a commercial part of town. Across the street from him was a dump. It did flood on occasion, but the reason it flooded was because the ditches were full of 7,000 tires. People were just throwing all kinds of crap there. There were all kinds of rotted-out automobiles. It was a junkyard, so they had thrown all this stuff out there.

He bought the land pretty cheaply because it was a junkyard, and he decided to clean it up. He picked up 7,000 tires. He picked up all the rusted automobiles. And, lo and behold, when he cleaned the drainage ditches, it no longer flooded. But he started putting some dirt on there and the government said he was breaking the law and that he was once again contaminating the wetlands. He was a Hungarian and he didn't like to be told what to do, and I can understand the sentiment. So he just kept putting dirt on there. He decided to do it at night, and they caught him because they spent--I don't know--a quarter million dollars on cameras and surveillance to catch a guy putting dirt on his own land.

He was bankrupted. They put him in jail for 3 years, they fined him 200-and-some thousand dollars. They wiped him out so he couldn't pay the taxes. They broke his spirit. I met his daughter. It is just a tragic case.

So if you wonder why some of us are worried about the government having all of our records--

I talked earlier about what happened in Westchester, and this is an appalling thing. This should make you concerned about having records. In Westchester--I think that is where the Clintons live. Anyway, they decided they would reveal all the gun records. So in Westchester they revealed whether you had a gun or didn't have a gun and where you lived.

Can you imagine how that might be a problem? Let's say you are a wife who has been beaten by your ex-husband and you live in fear of him and you either have a gun or you don't have a gun. Either way, you don't want your ex-husband to know where you live. And particularly if you don't have a gun, you don't want your ex-husband who beat you to know you don't have a gun.

Think if you are a prosecutor or a judge. They get threatened by the people they put in jail. Would you want your name in the paper with your address and that you have a gun or don't have a gun?

So you can see how privacy is kind of a big deal. Privacy can mean life and death in that kind of situation.

I think we ought to be more cognizant of what a big deal this is and what a big deal the Bill of Rights is. We shouldn't be so flippant that we are like: Oh, yes, whatever. We have to be safe. Maybe we catch a terrorist, maybe we don't, but we have to do this and we just have to give up some of our freedom to be secure.

It turns out, though, when we look at the objective evidence, it doesn't appear we are safer. It appears that when they have alleged that we are safer, what has happened is that it doesn't look like we have gotten any unique intelligence from these things.

I think there is probably nothing more important than discussing the Bill of Rights and talking about our civil liberties. I think we need to have an adequate debate. It is supposed to be what the Senate was famous for.

My hope is that from drawing some attention to this issue today we will get an agreement, and that is the agreement we are going to ask for. We are going to ask for an agreement from both parties to allow amendments to the PATRIOT Act, and we could

start any time they are ready. If somebody wants to send a message to the leadership that if they are ready to come out and allow debate and allow amendments on the PATRIOT Act or a promise to do this before the expiration, we could probably get something moving.

I think the American people are ready for that debate. We can look at the statistics, particularly among young people. It is a 70- to 80-percent issue, where young people are saying, for goodness' sake, we don't want our records scooped up and backed up by the government without any suspicion.

I think also young people get this more than others because they are used to their records being digital, they are used to their records being on their phone. They are very aware that their records are stored on a server somewhere, and they have grown to expect privacy.

Some say, oh, that is crazy. Young people share their information all the time. Well, you do and you don't. I share my information when I buy things online, but I am sharing it through an agreement. The people I share it with, the companies that then market other things to me, have agreed, through a privacy agreement, not to share my information, not to sell my information. I am to be anonymous. They will market to me, but they promise to keep me anonymous. We are comforted by the fact that we have a privacy agreement, and that if millions of people sued them, they couldn't get away with revealing our information.

What I don't like about some of the different things we are doing--and this includes the USA Freedom Act--is that we give liability protection. When we give liability protection, I think it is an invitation to say: You know what. Your privacy agreement isn't really that important, and if you breach it, nobody is allowed to sue you. So I think that is something we ought to be very careful with, and if we do end up having a debate on this and we do end up having amendments on this, that we consider taking out the liability protection.

I also think the most important thing is if we decide that bulk collection is wrong, we need to understand how you get bulk collection. You get bulk collection because you have a nonspecific warrant. You don't have an individualized warrant; you have a general warrant.

This is what we have been fighting since the time of John Wilkes in 1760 in England, to James Otis in the 1760s here through John Adams. The debate and the thing that we found most egregious, the thing that we found most objectionable was the idea that a warrant for your information wouldn't have your name on it, it wouldn't be individualized or that it wouldn't be without suspicion or that it would occur without a judge's warrant. It really was one of the things that annoyed us more than anything else. One of the things that Adams said was the spark of our war for independence was just the sheer gall of British soldiers coming into our house without a warrant because most of the records are in your house. We don't see basically the physical and abrupt entry into your house anymore, but it happens nonetheless. It happens in just less of a physical way because your records are virtual now. But how we let people come into our house is pretty important.

On the issue of warrants--this isn't specific to the PATRIOT Act, but it is a related issue. The issue is whether we should allow people to come into our house in the middle of the night with what is called a no-knock raid. The sneak-and-peek, they come in and leave. But the no-knock raid, you know they are there when they come. The problem is that people were being woken up in the middle of the night and they were grabbing their gun by their bedside. If they are in a high-crime neighborhood, they have a gun by their bedside and they are sometimes shooting the police. Mostly they are looking for drugs. I hate drugs about as much as anybody. I have seen addiction to drugs, I have worked with people as a physician and I know what it is like. But the thing is that barging through doors in the middle of the night leads to accidents in both ways: Police get shot; police accidentally shoot the victims sometimes.

In Modesto, I think in 2002, they burst into a home at 1 or 2 in the morning, yelled and screamed: Everybody get on the ground. There was an 11-year-old kid. He got on the ground, and the officer's shotgun accidentally discharged. It was an accident, but it didn't help the kid. He died.

The thing is, do we really need that? Do we need to come in the middle of the night looking for marijuana or any kind of drug? Couldn't we come in the daytime and knock on the door and say: We have a warrant.

I know police work is not without risk and people do shoot back at them. So I understand where they are coming from, and I want to protect them and for them to be safe. I want to protect the police, but I actually think it protects the police more if we go in the way we do with traditional warrants and not without unannounced warrants.

Of course, there are different circumstances or exigencies. There are times when the police go in without any warrant at all. If there is something imminent going on or some threat of a danger or situation inside, the police go in. I think, for the most part, we are better off if we do things and do them in the traditional way with warrants.

When we talk about how warrants have changed, one of the changes is the standard for what the warrant is issued with. Even if it were individualized, if it says that you only have to say they are relevant to an investigation. That is a big step down from probable cause. People have defined ``probable cause'' over time in different ways.

This is from Ballentine's Law Dictionary. A common definition of ``probable cause'' is ``a reasonable amount of suspicion, supported by circumstances sufficiently strong to justify a prudent and cautious person's belief that certain facts are probably true.''

Some lawyer must have written that. But you can kind of get a little bit of understanding that we are supposed to go through some kind of thought process and there is supposed to be evidence of suspicion. It is not the standard of proving guilt, proving beyond the preponderance of the fact or any kind of doubt. It is a standard, and it is a standard we have had for a long time.

The Oxford Companion to American Law defines ``probable cause'' as: ``Information sufficient to warrant a prudent person's belief that ..... evidence of a crime or contraband would be found in a search. `Probable cause' is a stronger standard of evidence than a reasonable suspicion, but weaker than what is required to secure a criminal conviction. Even hearsay can supply probable cause if it is from a reliable source or supported by other evidence.''

It is kind of interesting because people are so worried about getting a warrant, even a warrant can be supported by someone making an accusation. It is not perfect. In fact, there are some people who complain warrants are too easy to get. But the thing is there is no evidence that it is really overly hard to get a warrant. If we went back to the Constitution--I had this debate years ago the last time I came up for renewal, and I was walking along with one of the other Senators who supported the PATRIOT Act. He acted as though, you know what, if it expires at midnight, what will we do? My response was maybe we could live with the Constitution at least for a while. We did for hundreds of years.

Is there anything so unique about the times we live in that we could not still live under the Constitution? The Fourth Amendment has its origins in English common law. The saying that a man's home is his castle, this is the idea that someone has the right to defend their castle or home from invasion from the government.

Based on the castle doctrine in the 1600s, landowners first recorded legal protection from casual searches from government. Some of the famous cases are actually in the 1760s, but even at least 100 years in advance of that, they were beginning to develop protections for people from the government.

It is interesting to realize this is not a new phenomenon where we are talking about protecting ourselves from government. We protect ourselves and government helps us protect ourselves from others who may be violent against us. But we have always--for hundreds and hundreds of years--been aware that government does bad things too. If you do not ration the amount of power you give to government, you can get to the point where the great abuse comes from government itself. So they began to use warrants. But in England the debate quickly developed over whether a general warrant was adequate or a specific warrant. This is where John Wilkes comes in. This is where James Otis comes in.

One of the debates over the separation of powers that we have--this is pretty commonly going on, although I think the people who believe in unlimited inherent powers are probably the majority of Washington. But there is a debate over what people call article II powers. The article II is where the Executive is given powers under the Constitution, but there are people who sort of believe in this unlimited nature. There is really nothing that restrains it. In fact, some have said even in the debate over this, the Executive Order No. 1233 that is involved in some of this records production, it is really none of our business because it is article II. It is part of the inherent powers of the President to, in times of war or times of conflict, to do whatever they need to do.

I think that is a dangerous supposition, to think that really there are times when there are no checks and balances. I personally think probably one of the most genius things we got out of our Founding Fathers was the checks and balances and the division of power.

Montesquieu was one of the philosophers the Founding Fathers looked to and some say when we were setting up the separation of powers that he was probably where we got the example. Montesquieu said that when the Executive begins to legislate, a form of tyranny will ensue because you have allowed too much power to gravitate to one body and you have not divided the power. The division of power was one of the--if not the most important--the most important things we got from our Founding Fathers. But we are having this collapse of the separation of powers. It is getting to be where there is an ancillary body which is Congress, and then there is the executive branch, the behemoth, the leviathan.

The executive branch is so large that really the most important laws in the land

are being written by bureaucrats. No one elects and no one can unelect. In an average year, there are over 200 regulations that will cost the economy $100 million apiece. We do not vote on any of them. We vote indirectly for the President, but I think that is so indirect that it is a real problem.

I think what we have now is an executive branch that legislates. The collapse of the separation of powers is a collapse of the equilibrium. This equilibrium is what kept power in check. When I think who is to blame for this, it is not one party; it is really both parties.

When we have a Republican in office, Republicans tend to forgive the Republican President and give them more power. When we have a Democrat in office, the Democrats tend to forgive a Democrat and give the Democrat more power.

A more honest sort of approach to this or a more statesman's like approach to this would be that if we were able to have both parties stand up as a body and if there were pride in the institution of Congress--pride such that we were jealous of our power, that we were pitting our ambition to keep our position against the President regardless of the President's party affiliation--then we might have a chance.

A lot of the things about collection of bulk data were not known for years and years but have been going on for a long time. One of the things I found most troubling in the John Napier Tye op-ed was that he said--he was giving a speech and he said: Well, the good news is that if the American people are upset, if they are upset about things, intelligence activities, and they think it is an overreach, they have every opportunity to use the democratic process to change things. This went through the White House censor and the White House censor--counsel, adviser, boss--decided they needed to take that out of his speech because they did not want to imply, really, that intelligence activities could be changed through democratic action, because they took the opinion apparently that the inherent powers of article II are not subject to democratic action.

When I think of the people who say that the inherent powers are unlimited and the President has these powers that are not to be checked by Congress, I do not think of a Presidency. I think of a different word, and it is not ``President.''

I am very concerned about whether we are going to let this go on. There are some other side effects that come from this. As you allow the executive branch unlimited power and as you allow the bureaucracy to grow, a consequence or a side effect has been that the debt has grown to alarming proportions. We borrow about $1 million a minute. We have an $18 trillion debt. As the debt has grown larger and the executive branch has grown bigger, your Congress men and women have grown more ancillary and more peripheral to the entire process. But I am one who believes there are limits. I think there is a limit to how much debt we can incur and how rapidly we can incur it.

I think already we have seen sort of an anchor or a burden, an effect on the economy that pulls us down and causes growth to be less vibrant. Some say 1 million jobs a year are being prevented from being created because of this.

I think that if we are not careful, this collapse of the separation power, this collapse of equilibrium, as we let this get away from us, we are also getting away from the control over our future. We are letting the power accumulate in such a rapid fashion that if you want to see how much power is accumulating, you can almost make the analogy of looking at the debt clock. If you go to debtclock.org and watch the debt spiraling out of control, as the debt grows larger and larger, you basically are seeing a diminishment of a corresponding diminishment of your freedom. It is of concern.

It is of concern how rapidly this is happening. There are two philosophic reasons we should be concerned about power. One is that power corrupts. More basic than that is that as power grows, there has to be a corresponding loss of your freedom. I call this the liberty argument for minimizing government. Thomas Payne made this argument. Thomas Payne said that government is a necessary evil. What did he mean by that? I think what he meant by that is that you need government. We need government for a stabilizing force. There are things government needs to do. But it is a necessary evil because you have to give up your liberty to have some government. How do you give up your liberty? You give up some of what you earn. Your liberty is who you are. Your liberty is what you produce with your hands, and your liberty is what people will pay you to do with your hands, what you do to produce. That is your income. That is you. That is your liberty.

If we have 100 percent taxation, I would say you have no liberty. You are essentially a slave to the State. If you have 50 percent, you are only half slave, half free. The thing is that the smaller your government, the lower your taxation and the more free you are. But it is an argument for, if you are concerned about freedom, you would want as small a government as you possibly could have that still did the things that you think are necessary.

The other argument I like for why you should keep your government small is what I call the efficiency argument. The efficiency argument was best expounded by Milton Friedman, who said that nobody spends somebody else's money as wisely as their own. There is sort of a truism to that. You think about it in your own life. If I ask you for $1,000 to invest in a business enterprise, you will think: How long did it take me to earn $1,000. You will think: I had to pay taxes, I had to save, I had to pay all my expenses to get this $1,000. You will think how much you prize that, and you will not make the decision in an easy fashion. You will make your decision not perfectly, but if you compare your decision spending your money to a politician spending the money, it is just bound to be a wiser decision. It is a more heart-wrenching decision. It ends up typically being a better decision. If you ask a politician for $1 million, that might be equivalent to $1,000 or it might not mean anything to him. You might ask him for $10 million.

Think about it this way: We gave $500 million to one of the richest guys in our country to build something that nobody seemed to want, and he lost all of the money. And you think to yourself, do you think the person in the Department of Energy that gave $500 million to one of the richest guys in the country to build something we didn't want feels bad or doesn't sleep well at night? No. I think they gave that person the money because that person was a big contributor. They were an activist for their candidate, so when the candidate got in power, they used the Department of Energy as their own personal piggybank to pass out loans to their friends. Nobody feels bad about the fact that they lost the money because it wasn't their money. It is the efficiency argument for why you should think the government should be small.

Before the PATRIOT Act, there was something called Stellar Wind. This was a secret also, and we didn't learn about this for many years, but this was started immediately after 9/11 and was revealed by Thomas Tamm at the New York Times in 2008. But it was basically a prelude to the bulk collection we are having now.

The amazing thing about bulk collection is none of this is new. It has been going on now for 14 or 15 years. It doesn't make it any less objectionable, but it is not new. We have now had bulk collection under two different administrations. One administration got a great deal of grief for this, and then the next party ran and said: We are going to change these things and do things differently. And they did them the same or more so. There really had not been any change, and I guess that is why some people are concerned as to whether we will truly get change.

The program's activities in Stellar Wind involve data mining of large databases of communications of American citizens, including emails, telephone conversations, financial transactions, and Internet activity. William Binney, a retired leader within the NSA, became a whistleblower because he believed these programs to be unconstitutional.

The intelligence community was also able to obtain from the Treasury Department suspicious activity reports. So we are back to these banking reports that are issued.

If we decide to fix bulk records and try to do something about this injustice, the main thing is we should be aware that this is not the only program. There are probably a dozen programs. There are probably another dozen we have not even heard of that they will not tell any of us about. And realize that they are not asking Congress for permission; they are doing whatever they want.

We did not give them permission under the PATRIOT Act to do a bulk collection of phone records. They are doing it with no authority or inherent authority or some other authority because the courts have already told them there is no authority under the PATRIOT Act. There is also no commonsense logic that could explain--no commonsense logic that could say there is a relevancy to all the data of every American.

When Stellar Wind came about, there were internal disputes within the Justice Department about the legality of the program because the data was being collected for large numbers of people, not just the subjects of FISA warrants. The Stellar Wind cases were referred to by FBI agents as pizza cases because many seemingly suspicious cases turned out to be food takeout orders. Imagine also that if we are looking for interconnecting spots, a lot of people order pizza.

According to Mueller, approximately 99 percent of the cases led nowhere. Nevertheless, internal counsel for the administration said that because the Nation had been thrust into an armed conflict by foreign attack, the President has determined in his role as Commander in Chief that it is essential for defense against a further attack to use these wiretapping capabilities within the United States. He has inherent constitutional authority to order warrantless wiretapping.

The memo goes one step further. It says that the President has the inherent constitutional authority to order warrantless wiretapping--we are talking about warrantless, not any kind of a subpoena--an authority that Congress cannot curtail.

If we really believe bulk collection is wrong and if we really believe we need to be a check and balance on the President, we should just be getting started with reining him in on bulk collection because the President--this was the previous administration--says these authorities they are using cannot be curtailed by Congress. If you talk about a Presidency that has powers that are not checked by Congress, I don't think you are talking about a Presidency here. There is another name for that kind of leader, but it is not ``President.''

The argument here is astounding. The argument here is that they can collect anything they want without a warrant because the President has the inherent constitutional authority to order warrantless wiretapping--an authority Congress cannot curtail. I think that is alarming.

A few years later, the Office of Legal Counsel came back--this is also from the administration--and concluded that at least the email program was not legal, and then-Acting Attorney General James Comey refused to reauthorize it.

William Binney, a former NSA code breaker whom we have talked about and who is a whistleblower, talked about some of the activities of the NSA and said they have highly secured rooms that tap into major switches and satellite communications at both AT&T and Verizon.

The article--I believe this was the New York Times--suggested that supposedly dispatched Stellar Wind--supposedly they were no longer doing this--continues as an active program. This conclusion was supported by the exposure of room 641A in AT&T's operation center in San Francisco in 2006. It gets back to the trust factor.

The Director of National Intelligence said they were not collecting any bulk data, but he wasn't telling the truth. They tell us Stellar Wind ended back in 2005 or 2006, but then we find a room at AT&T that is still hooked up directly to the NSA.

I would like to see the phone companies be better defenders of our privacy, but with the PATRIOT Act, we gave them immunity. Even if there were some individuals in the phone companies who cared about your privacy and thought your phone conversations should be protected, why do it? You can't sue them. If you have a privacy agreement with your phone company, they don't care. Nobody can sue them. You have no protection. You have no standing in the court to protect yourself. That is one of the problems with the USA FREEDOM Act, is that we are giving liability protection once again to the phone companies for something new.

One question I would ask, if there was anybody who would actually tell me the answer, would be, if we already gave them liability protection under the PATRIOT Act, why are they getting it again under the USA FREEDOM Act unless we are asking them to do something new that they didn't have permission for?

The other thing about the USA FREEDOM Act is that if we think bulk collection is wrong, why do we need new authorities? Why are we giving them some kind of new authority? Are we restricting our authority in section 215 of the PATRIOT Act on one hand and then expanding it on another?

I think when people are dishonest with you, you are right to be doubtful and you are right to try to circumscribe and to put their power in a box so you can watch them and make sure they are honest.

In June of 2013, the Washington Post and the Guardian published an article from the Office of the Inspector General--a draft report dated March of 2009 that detailed the Stellar Wind Program. So in 2009, there was evidence that Stellar Wind was still going on. And realize that Stellar Wind is not what we are talking about. Stellar Wind would be other bits of information that are being collected beyond your phone records.

I think if we had somebody here or if we had somebody who would honestly tell us, I would sure like to know if they absorb and collect all of our credit card information. I have a feeling it is probably done. I don't know, and I have not been told, so I am not revealing a secret. I guess it is done. I am guessing all of your records are collected because the thing is, we have the audacity of the executive branch saying they have inherent constitutional authority to do anything they want, to order warrantless wiretapping. According to the executive branch, they have an authority that Congress cannot curtail. That doesn't sound like the Office of the Presidency to me; it sounds like a governmental official whom you have no control over. It sounds inconsistent or antithetical to a constitutional republic. How can you have a Presidency that has unlimited power? That is what they are telling you.

They are telling you it is in the service of good. We are going to catch terrorists, and we are going to do good things. We are going to look at all of your information, but we are never going to abuse your privacy.

During September 2014, the New York Times asserted, ``Questions persist after the release of a newly declassified version of a legal memo approving the NSA Stellar Wind program, a set of warrantless surveillance and data collection activities secretly authorized after 2001.'' The article addressed the release of a newly declassified version of the 2004 memo. Note was made that the bulk program--telephone, Internet, and email surveillance of American citizens--remained secret until the revelations by Edward Snowden and that to date, significant portions of the memo remain redacted in the newly released version as well as that doubts and questions about its legality continue to persist.

When we go back to the Privacy and Civil Liberties Oversight Board, as they get closer to their conclusion, they talk once again about the idea that you are only hearing one side. I think that no matter how honest and no matter how patriotic people are, one side just won't do it. You can't find the whole truth when only the government presents their position. The Privacy and Civil Liberties Oversight Board said that the proceedings with only one side being presented raised concerns that the court does not take adequate account of positions other than those of the government. They recommended the creation of a panel of private attorneys and special advocates who can be brought into cases involving novel and significant issues by FISA Court judges.

I think this would be a step in the right direction, but I think also that what we need to do is we should really probably give you the ability to have your own attorney. If this is a court proceeding, I think you need your own attorney so you have somebody who works for you and is your advocate. But a special advocate would be better than what we have.

The Board goes on to conclude that ``transparency is one of the foundations of democratic governance. Our constitutional system of government relies upon the participation of an informed electorate. This in turn requires public access to information about the activities of the government. Transparency supports accountability.''

I could not agree more.

It is even more important when we talk about the intelligence agency because of the extraordinary power we give to these people, the extraordinary power we give them to invade our privacy and to have tools to invade our privacy. We have to trust them, so there needs to be a degree of transparency. But transparency doesn't have to involve state secrets. It doesn't have to involve codes or names. But the transparency needs to involve what they are doing. Do we think any terrorist in the world doesn't realize that all of the information is being scarfed up? It is not a secret that they are doing this.

So we should have an open debate in a free society about how it should be done and whether we can gather information in a way that is consistent with the Constitution.

When we get to the Privacy and Civil Liberty Board's recommendations, they have several good recommendations.

No. 1, the government should end its section 215 bulk telephone records program, period. They say that the program as it is constituted implicates constitutional concerns under the First and Fourth Amendments. This is the President's Privacy and Civil Liberties Oversight Board.

Without the current section 215 program, the government would still be able to seek telephone calling records directly from the communications providers through other existing legal authorities. I think the other existing legal authorities could be the Constitution. Could we not just call a judge and get a warrant and go down to the phone company and get what we want? I think there is a way we can do this that is still consistent with the Constitution.

(Mr. GARDNER assumed the Chair.)

The other recommendation they have, other than ending the program, is that when the bulk collection program is ended, the records should be purged so there is no chance that this can be abused again in the future.

One of the arguments for the NSA has been that they collect the data, it is in a database, but it is only accessed when they have what they call reasonable, articulable suspicion.

One of the recommendations of the privacy board, though, was that they not be given the ability to judge whether there is reasonable, articulable suspicion; that it would actually go to an independent judge to determine that. So the recommendation of the privacy board was that these should go to the review of the FISA Court before they are able to query the database.

There are many different groups who have been fighting for our privacy in this country, and it is a coalition of people both from the right and from the left. We have seen it today as different Senators have come to the floor. We have had Senators from the Republican Party as well as from the Democratic Party. We have had those from the right, from the left, conservatives, libertarians, and we have had progressives. There has been a combination of folks who also have one thing in common, and that is the belief that the Bill of Rights should be protected.

Among the private groups who have done a good job with this is Electronic Frontier Foundation. They have been one of the groups who have done a good job. In one of their newsletters, they quote Ron Wyden, who says: We have not yet seen any evidence showing that the NSA's dragnet collection of America's phone records has produced any uniquely valuable intelligence.

Patrick Eddington writes for CATO. CATO is another group who has been a good supporter of privacy. In an article that talks about the upcoming battle from a couple of weeks ago, he writes--this is on the USA FREEDOM Act, and this is sort of the big debate because many people on both sides of the aisle think the bulk collection of records is not constitutional. We think it exceeds the government's power and it exceeds the Constitution. But what many are proposing to replace it with is the USA FREEDOM Act.

This is what Patrick Eddington writes: The USA FREEDOM Act claims to end the controversial telephone metadata program, but a close reading of the bill reveals that it actually leaves key PATRIOT Act definitions of ``person'' or ``U.S. person'' intact, so a person is defined as any individual, including officer or employee of the Federal Government, or any group, entity, association, corporation, or foreign power.

So the question I have is, it sounds good that we are going to make the definition of whose records we go after when we say it is going to be a specific U.S. person. The problem is that we then define ``person'' as ``corporation.'' So we get back to the same argument: If we are going to search the database of all of a person's phone calls and we say that a person is Verizon, we are again stuck collecting everybody's records.

What I don't want to have happen and what I won't be able to support is a bill that becomes bulk collection of a person's records, just under a different venue. I am not sure that one's privacy has been protected more if it were now just asking the phone companies for bulk collection where we were taking their data, sourcing it, and getting it from the companies after they gave it to the government. I am just not sure if it is that much--distinctly different.

In the USA FREEDOM Act, they talk about the idea that we will get special advocates, and I am for that. I think that is a good idea. But Patrick Eddington points out a flaw. He says that the FISA Court has sole discretion to appoint or not appoint these amicus curiae or these special advocates. So it could be that a FISA Court that really has not been too inquisitive, a FISA Court that has determined that all of your records are somehow relevant, may not be the most inquisitive to appoint an advocate for you if they have been able to define ``relevance'' as meaning all of the records.

Another deficiency of the USA FREEDOM Act is that it does not address bulk collection under Executive Order 12333. The bill also fails to address bulk collection under section 702 of the FISA Amendments Act.

One could say: What are you complaining about? You are getting some improvement. You still have problems, but you are getting some improvement.

I guess my point is that we are having this debate, and we don't have it very often. We are having the debate every 3 years, and some people have tried to make this permanent, where we would never have any debate. Even though we are only having it every 3 years, it is still uncertain whether I will be granted any amendments to this bill.

So, yes, I would like to address everything while we can. I think we ought to address section 702. I think we ought to--for goodness' sake, why won't we have some hearings on Executive Order 12333? I think they may be having them in secret, but I go back to what Senator Wyden said earlier. I think the principles of the law could be discussed in public. We don't have to reveal how we do stuff. Do we think anybody in the world thinks we are not looking at their stuff? Why don't we explore the legality and the law of how we are doing it as opposed to leaving it unsaid and unknown in secret?

Part of our secrecy is sort of backfiring on us also because what is happening is in keeping this secret, people believe the worst. Everybody around the world believes the worst about it. Everybody around the world believes that they are having all their stuff looked at, that their emails are being looked at. So if you are a businessperson in Europe and you are trying to negotiate a secure deal--a deal where you don't want your competitors to know what you are offering to buy a certain company--I would think you probably wouldn't use American email, and I would guess that is what is happening.

American companies are starting to try to figure out a way around this, are trying to offer encryption. What does the government do? The President's administration is all over the airwaves, all over Washington, all over the place talking about how the companies are somehow evil for wanting to encrypt their data.

I saw the Secretary of the Department of Homeland Security in my committee the other day, and I said: You realize it is your fault. Is it the companies' fault that they are trying to protect their information for their customers? They are trying to make a living. It is your fault for bullying them and stealing their information and stealing all of Americans' information. We are simply reacting to the bully that you are.

Most of the issues Patrick Eddington points out in his piece are issues that we actually have amendments for that would make the bill stronger. So if there are arguments that maybe the USA FREEDOM Act could be made better--definitely reauthorizing it by itself is a big mistake, but if alternatives are going to be offered, maybe we could try to offer alternatives that make the USA FREEDOM Act better.

The other idea Patrick Eddington puts forward is that there is no bar on the government imposing backdoors being built into electronic devices. That is what we have talked about before, that the government is mandating to different companies that they have to have access to their product.

I think it is an under-discussed development that the companies are going to be more at risk for sabotage by foreign countries, foreign governments, and sabotage from hackers if they build a portal. So if the government says ``We need a portal to stick our big nose in your business and suck up all your information,'' my guess is that sophisticated hackers and sophisticated foreign governments will say that most of American software now has a flaw, and the American Government is getting into it. What do we think these people will do? They will develop programs to look for the flaws and churn through until they find our flaws.

It is the opposite of what we should be doing. We should be trying to keep foreign governments, foreign snoopers, and foreign competitors out of our stuff, including the U.S. Government, but we are doing the opposite.

There is a lot left to be desired with the USA FREEDOM Act. I try to be supportive of moving forward, but I can't support it unless we are able to incorporate some of the other ideas I think are necessary.

The people say we are just not doing enough. This week, many have come out and said: We have to collect more data. We are only collecting a third of the data. We have to get more data.

The interesting thing is that we are spending $52 billion a year on intelligence in our country--$52 billion. We are spending $10 billion in the NSA alone. It is $167 per person in the United States. I think it is hard to argue we are not doing enough already.

I think the argument can be made, though, that we are doing it in such a haphazard, all-collecting, all-consuming, indiscriminate way that maybe we are not getting the best bang for our buck.

There have been many groups out there. We mentioned Electronic Frontier Foundation, TechFreedom, Liberty Coalition, GenOpportunity, Competitive Enterprise Institute, FreedomWorks--a lot of different groups from right and left that are opposed to this bulk collection of data.

There is an interesting article recently written by Anthony Romero with the ACLU, and the title of it is ``The Sun Must Go Down on the PATRIOT Act.'' In it he refers back to both of the review groups we talked about and the Privacy and Civil Liberties Oversight Board, and he says and reiterates a point that is incredibly important, that ``there was no evidence at all that the NSA's massive surveillance program had ever played a pivotal role in any investigation.''

I think we ought to be able to figure out something from this, and we ought to be able to learn that not only is there a constitutional question of this, there is also the question of whether practically it is doing anything to make us safer. If it is not making us safer, it is extraordinarily expensive and we are losing our freedom in the process. Why don't we shut it down?

Different advocacy groups for a variety of opinions have put forward the idea that I think was represented in the NAACP v. Alabama. I believe this was back in the seventies, which set forth a First Amendment claim, and this claim is that there is a vital relationship between freedom of association in privacy in one's associations. The point is that sometimes when you are protesting either for or against something that is very unpopular, sometimes you even worry about your safety. There were people who lost their lives in the freedom movement, in the civil rights movement. There were people who lost their lives. And you can understand how in those days people might have been worried for anybody to know they belonged to the NAACP or they opposed the Jim Crow laws in the South. But it was an important case because it talks about how the fact is that information can be kept private and should be kept private for fear it will chill speech, for fear it will put a damper on who people would associate with, for fear that it would put a damper on dissent, which is a fundamental aspect of a Republic.

In a letter from a couple weeks ago from some congressional leaders, they point out something that I think bears repeating. Mass surveillance, the bulk collection, harms our economy. Mass surveillance will cost the digital economy up to $180 billion in lost revenue by 2016.

We are not getting any new bad guys with this, we are abrogating privacy, and we are losing money.

The Internet companies in our country, the whole software world, the whole hardware, all of this, have been some of America's greatest triumphs, some of America's greatest ingenuity. Yet we are willing to squash all that in a battle that really is going to damage our privacy, isn't helping us in the war against terrorism, and is going to make it such that nobody in the world is going to want to buy American products. I think it is a disgrace and, once again, I don't think it is purposeful. Nobody wants to harm our companies, but I think it is just another unintended consequence--a bad policy not thought through.

The ACLU commentary on the USA FREEDOM Act has come up with some ideas of things they think would make the bill stronger. One, they say the bill could be amended to prevent surveillance of individuals with no nexus to terrorism:

The 2015 USA FREEDOM Act would authorize the collection of records and communications identified by a ``specific term''. ..... This would stop the government from conducting indiscriminate surveillance of virtually all citizens and from engaging in narrower but still-egregious forms of abuse, like the surveillance of everyone in an entire zip code or all those who use a given communications provider, like Gmail. However, the current SST definition is still not strong enough to prevent ``bulky'' collection. .....

This is the point I have been making, and this is something you need to be very careful about in Washington, because the minute you think you have won a battle, secretly you have been beaten. You just don't know it yet. We may still get a reform like this and then find out we are still going to get bulky collection; that a corporation's name can be put in the specific selector term, and--so we were worried about the government giving us all of Verizon's records. Now we are just sending a warrant to Verizon that has their name in it and we are getting all of their records.

The example they put here is that you could still end up having the surveillance of everyone in the entire ZIP Code or all of those who use a given communications provider like Gmail. So Gmail is a specific term. Are we not still back where we were and have we really fixed the problem?

The ACLU goes on to say that the bill should be amended to narrow the SST definition--the selector term--to prevent this kind of bulky surveillance. The bill should also make crystal clear, consistent with the Second Circuit--which has come out since this bill was written--that section 215 cannot be used to amass Americans' records for open-ended data-mining purposes unmoored from any specific investigation.

I think this is incredibly important. The USA FREEDOM Act wants to take a step forward, but we need to make sure the ruling from the Second Circuit that has already passed, that we don't do something that either moots the case or we don't do something that actually expands the power of 215 when the court has already restricted the power of 215.

The ACLU's second recommendation is that we should include procedures to ensure that the government purges irrelevant information. Right now the bill would allow the collection of irrelevant information under 215 and other authorities without minimization procedures.

This kind of reminds me--if you want to know how much information we are grabbing up and how worried to be about it, there was an article in the Washington Post a couple of months ago, and it said the President had been minimized 1,227 times. We are collecting the President's data, all right. You can say, well, we are being fair, we are getting everybody's. For goodness' sake, we should not be collecting the President's information. In fact, you might inadvertently have somebody reading that who really shouldn't be reading the President's information. We should not be collecting the President's information. That is ridiculous. But we are minimizing the President, which means we are finding it and sort of whitening it out and hoping nobody has read it in the process.

There were earlier versions of the USA FREEDOM Act that included some of these basic protections on getting rid of or minimizing irrelevant information from bulky surveillance. This is sort of the problem. This bill started out pretty good in the House, got out of committee, got sort of eaten up on the floor, and wound up losing a lot of the better stuff that was in it.

The third recommendation is what we mentioned a few minutes ago, which is to make sure there is a strong advocacy, a special advocate; that it is a strong advocate that goes before the FISA Court. As the Second Circuit Court decision observes, adversarial judicial process is vital, especially on matters as critically important as the government's authority to spy on its citizens. This is a really important point, the adversarial judicial process.

There are some--Judge Napolitano has written on this--and I think he has made the point that without an adversarial process, you really can't even have a judicial process. If you don't have people on both sides arguing or advocating for a position, there really isn't a court. It really is not a judicial proceeding that we can recognize as finding justice. But the FISA Court only hears from one side, the government.

But the ACLU points out that these advocates participate solely at the discretion of the court and can make arguments that do not advance privacy and civil liberties.

Yet, if you are hired by the government, are you really going to be the best advocate for privacy?

The fourth suggestion that the ACLU has to make the USA FREEDOM Act better is that we should limit additional authorities that have been used to collect America's records in bulk. We now know that the government has conducted bulk surveillance not only under 215 but also under a host of other statutes, including existing administrative subpoena authorities.

For example, for two decades, up until 2013, the Drug Enforcement Agency operated a program that collected the international call records of Americans in bulk, reporting under existing administrative subpoena laws. So here is a real question: What other authorities are we operating under that are collecting bulk records? They are doing it under administrative subpoena laws. They are doing it for the DEA. I still think the more I learn about this, the more questions I have as to how many other authorities are still collecting things. I would still like to know, are they collecting all the credit card information in the country? Are they doing that under Executive authority?

Are we really living in a country now where nobody in the government questions someone when they say that under article II authority the President can do whatever he wants and that this can't even be corrected or challenged at all by Congress?

The fifth recommendation from the ACLU is to stop the government from using section 702 of FISA as a backdoor to conduct surveillance on Americans. This was one of our amendments that we also have. In fact, most of these are amendments that I would present, if we are allowed to present them, which is sort of the purpose for being here, for wearing my feet out and my voice today, is that we would like to find out, Will the leadership allow us to have amendments?

We would like to know and have an agreement that we will specifically be allowed to offer these amendments we have worked on for 6 months to a year now. We have waited for 3 years for the opportunity. We would like to know, Will leadership let us have these amendments? Will leadership allow a free and open debate over how to fix this bulk collection program?

The backdoor thing with 702 is a pretty important thing. It is collecting enormous amounts of data. Earlier today we talked about how this data, that 9 out of 10 pieces of data are not about the target, they are just incidental. I think there was one estimate that we have had 90,000 targets, but it means that we have really had 900,000 bits of information on other individuals collected, but it all just gets stuck in a database. So the database keeps growing and growing and sometimes it is intentionally so, that we want to investigate a guy here, but we don't want to ask for a warrant, so we investigate a guy overseas that we know already talks to the guy over here, and now we are really investigating Americans without a warrant. So they recommended we stop this backdoor access. This is something Senator Wyden and I have also been in favor of as well.

Another recommendation the ACLU has is that our current laws punish individuals for providing material support to terrorists. I have no problem with that, but they have been used apparently to prosecute people seeking to provide humanitarian assistance. The USA FREEDOM Act should add an explicit intent requirement to the material support law.

There is another comment from the Sunlight Foundation by Sean Vitka, and the title is the ``USA FREEDOM Act is about to pass through the House--is it a step backwards?''

Sunlight and others have had major concerns about the USA FREEDOM Act for some time. Broadly speaking, it isn't a satisfactory level of reform given what we've learned in the past two years about government surveillance and the immense secrecy that surrounds it. Until last week, it's fair to say some considered the bill a net positive, some a net negative and that no one thought it was enough for reform.

As time has progressed, we've seen what began in 2013 as a decent, if tunnel-visioned, compromise chipped away at, including the transparency and accountability provisions .....

I think this is an important point, because the USA FREEDOM Act started out pretty good. It got a little bit less good over time. But think about where we are right now. It passed overwhelmingly in the House. The majority in the Senate does not want it because they think it lessens the bulk collection too much. So they are going to chip away at it again. So imagine where we are going to be in the end if that is what we are going to pass. I think it would be better to be done with bulk collection. Let's be done with bulk collection. Let's start over.
But let's not replace it with something that may end up being just as bad. The sacrifices made in the bill in order to secure these modest reforms grew more dramatic. For instance, the USA FREEDOM Act was always a threat to court challenges and may have mooted the ACLU'S tremendous court win last week, if it had passed last year. This is the point I have been making. The luckiest thing we ever got is that we did not pass the USA FREEDOM Act last year because the courts are probably going to do right now a better job than legislation.

If fact, we might be better off not passing the USA FREEDOM Act and seeing what the courts will do for us on this because there is a danger it moots the case. But there is a danger also that it is seen as actually giving justification for the program, which I guess is kind of mooting the case as well. The ruling in the appellate court could also--they are agreeing with what I just said--do more than USA FREEDOM aspired to do, because it interprets the word ``relevance'', saying it does not authorize bulk collection and that that word is not used in section 215.

So I think that is a good point, that the court is saying that the word ``relevance'' does not authorize bulk collection. So you have got bulk collecting going on, but there is no authorization from 215 on it.

Here is the question: Is USA FREEDOM going to allow bulky--perhaps bulk--collection, and do we wind up actually giving back more power to the intelligence community when we are trying to limit their power? I think we need to be very careful with what we do here.

Sunlight goes on to say--Sean Vitka:

It's unclear whether the primary goal of USA FREEDOM, the rewriting of Section 215 to stop bulk collection, is already accomplished and whether USA FREEDOM could open us all up to more secret interpretations and new venues of surveillance.

I think that is an incredibly important question. Several groups that initially supported USA FREEDOM have backed away from it. ACLU and EFF agree that the USA FREEDOM Act as it stands now is not worthy of support. I think some of these may be neutral on it, but they have backed away from some of their support. Some of the concerns that Sean Vitka talks about here are shortcomings in the USA Freedom Act. He says that it accepts the premise that mass surveillance under these programs is necessary, despite the findings of the congressional joint inquiry and the 9/11 Commission to the contrary, and also despite that the Privacy and Civil Liberties Oversight Board said it was not necessary.

Sean Vitka goes on to say that one of his other concerns is that the USA FREEDOM Act effectively continues mass surveillance under section 215 of the PATRIOT Act through the use of multiple NSA-supplied selector terms. So you could say that we are only going to do individual terms, but then you do a bunch of them. By the time we do a bunch, are we really individualizing or are we not growing it into bulk collection?

They include the following among those selection terms--ones they are worried about: the Internet protocol address or cloud source accounts of entire organizations, in contravention of the Fourth Amendment's particularized probable-cause-based warrant.

Additionally, Sunlight goes on to point out what I pointed out as well, that the term ``person'' is not defined as an individual natural person, and the bill does not alter the PATRIOT Act's original definition of person, which includes any individual, officer or employee of the Federal Government or any group, entity, association, corporation.

You know, I really feel what we could be doing back here is--we think we won. We get the USA FREEDOM Act, and then 2 years from now, we find out they are plugging the name ``Verizon'' into their selection term and they are still collecting all the records from Verizon. So I think unless you can limit this to an individual, a natural person, I think really this is one of the biggest problems we have with the USA FREEDOM Act at this point.

Sean Vitka goes on to say that there is a concern that it expands the corporate immunity. We have discussed that as well today--that by removing that companies act in good faith, we also are going to pay the companies now to do this as well.

Judge Napolitano wrote about this just the other day, May 14. He writes:

A decision last week about NSA spying by a panel of judges on the U.S. Court of Appeals in New York City sent shock waves through the government. The court ruled that a section of the PATRIOT Act that is due to expire at the end of this month, on which the government has relied as a basis for its bulk collection and acquisition of telephone data the past 14 years, does not authorize that acquisition. This may sound like legal mumbo-jumbo but it goes to the heart of the relationship between the people and their government and a free society.

The PATRIOT Act is the centerpiece of the Federal Government's false claim that by surrounding our personal liberties to it, it can somehow keep us safe. The liberty-for-safety offer has been around for millennia and was poignant at the time of the founding of the American Republic.

The Framers addressed it in the Constitution itself, where they recognized the primacy of the rights to privacy and assured against its violation by government, by intentionally forcing it to jump through some difficult hoops before it can capture our thoughts, words, or private behavior. These hoops are the requirement of a search warrant issued by a judge based on evidence called probate cause, demonstrating that it is more likely than not that the government will find what it is looking for from the person or place it is targeting. Only then may a judge issue a warrant which must specifically describe the place to be searched, or specifically identify the person or thing to be seized.

Napolitano goes on:

None of this is new. It has been at the core of our system of government since the 1790s. It is embodied in the Fourth Amendment which is the heart of the Bill of Rights. It is quintessentially American. The PATRIOT Act has purported to do away with the search warrant requirement, by employing language so intentionally vague that the government can interpret it as it wishes. Add to this the secret venue for this interpretation, the FISA court, to which the PATRIOT Act directs that NSA applications for authority to spy on Americans are to be made, and you have the totalitarian stew that we have been force fed since 2001.

Because the FISA court meets in secret, Americans did not know that the feds were spying on us all of the time and relying on their own unnatural reading of the words in the PATRIOT Act to justify it until Edward Snowden spilled the beans on his former employer nearly 2 years ago.

Here is another reason I think to question whether USA FREEDOM may be the best bill for us. There was an article in the Daily Beast by Shane Harris the other day. The title of it is `` `Big Win' for Big Brother: NSA Celebrates the Bill That's Designed to Cuff Them.''

It was supposed to be the declawing of America's biggest spy service, but what no one wants to say out loud is that this is a big win for the NSA, one former top spook says.

Civil libertarians and privacy advocates were applauding yesterday after the House of Representatives overwhelmingly passed legislation to stop the NSA from collecting Americans' phone records in bulk. But they'd best not break out the bubbly.

The real big winner here is the NSA. Over at its headquarters in Fort Meade ..... intelligence officials are high-fiving, because they know things could have turned out much worse. ``What no one wants to say out loud is that this is a big win for the NSA, and a huge nothing burger for the privacy community,'' said a former senior intelligence official, one of half a dozen who spoke to The Daily Beast about the phone records program and efforts to change it.

Here's the dirty little secret that many spooks are loath to utter publicly, but have been admitting in private for the past two years: The program--

The bulk collection program--

which was exposed in documents leaked by Edward Snowden in 2013, is more trouble than it's worth.

``It's very expensive and very cumbersome,'' the former official said. It requires the agency to maintain huge databases of all Americans' landline phone calls. But it doesn't contribute many leads on terrorists. It has helped prevent few--if any--attacks. And it's nowhere near the biggest contributor of information about terrorism that ends up on the President's desk or other senior decision makers.

If, after the most significant public debate about balancing surveillance and government in a generation, this is the program that NSA has to give up, they're getting off easy. The bill that the House passed yesterday, called the USA FREEDOM Act, doesn't actually suspend the phone record program. Rather, it requires that phone companies, not the NSA, hold on to the records.

That bears repeating. At least from the author's perspective of this article, the USA FREEDOM Act does not actually suspend the phone records program. Rather, it requires the phone companies, not the NSA, to hold onto the records.

``Good! Let them take them. I'm tired of holding onto this,'' a current senior U.S. official told The Daily Beast. It requires teams of lawyers and auditors to ensure that the NSA is complying with Section 215 of the PATRIOT Act, which authorizes the program, as well as the internal regulations on how records can and cannot be used. The phone records program has become a political lightning rod, the most controversial of all of the classified operations that Snowden exposed. If NSA can still get access to the records but not have to hold on to them itself, all the better, the senior official said.

``It's a big win for common sense and for the country,'' Joel Brenner, the NSA's former inspector general, told The Daily Beast. ``NSA can get to do what it needs to do with a higher level of scrutiny and a little more trouble, but it can still do what it needs to do. At the same time, the government is not going to hold the bulk metadata of the American people.''

``The NSA is coming out of this unscathed,'' said the former official. If the USA FREEDOM Act passes the Senate--which is not a foregone conclusion--it will be signed by President Obama and create a more efficient and comprehensive tool for the NSA. That's because under the current regime, only the logs of landline calls are kept. But in the future, the NSA will be able to get the cell phone records from the companies, too.

That bears repeating. This week, everybody was talking about and saying: We are not getting enough. The people who want more surveillance are saying: We are not getting enough. We are only getting the landlines. We are only getting one-third of all of the records. Here is the allegation: Under the USA FREEDOM Act, they are going to get many more records. They are going to have access to all cell phone records. The question is, Are we going to really have less bulk collection or maybe the same?

There is another irony--this is still according to Shane Harris at the Daily Beast:

And there's another irony. Before the Snowden leaks, the NSA was already looking for alternatives to storing huge amounts of phone records in the agency's computers. And one of the ideas officials considered was asking Congress to require phone companies to hang onto that information for several years. The idea died, though, because NSA leaders thought that Congress would never agree, [current and former officials have said].

It is kind of ironic that the NSA already thought of this idea, didn't think we would be silly enough to do it, and now it is being promoted as the reform, that the reform is going to be what the NSA actually wanted in the first place.

Suddenly, the NSA found itself under orders from the White House--this is after the revelations from Snowden--to come up with some alternative to the phone records program that preserved it, but also put more checks on how the records are used. Continuing:

That's when General Keith Alexander, then the agency's director, dusted the old idea off the shelf and promoted it on Capitol Hill.

That is right.

``The USA Freedom Act''--the supposed reining in of the NSA--``was literally born from Alexander,'' the former official said.

So the NSA effectively got what it wanted. But that doesn't mean privacy activists got nothing, or that they'd count the law's passage as a loss.

There is a large coalition, 50 maybe 100 different groups, that have all been in favor of trying to end the bulk coalition. We have been working together on this. We have mentioned the Electronic Frontier Foundation, the Electronic Privacy Information Center, the ACLU, FreedomWorks, Bill of Rights Defense Committee, The Constitution Project--across the spectrum, right and left.

The question is on encryption, whether the government will be able to break through the encryption that businesses are trying to devise to keep them out.

There is an article in the New York Times, though this is from 1 1/2 years ago, saying:

The National Security Agency is winning its long-running secret war on encryption, using supercomputers, technical trickery, court orders and behind-the-scenes persuasion to undermine the major tools protecting the privacy of everyday communications in an Internet age. ..... The agency has circumvented or cracked much of the encryption, or digital scrambling, that guards global commerce and banking systems.

Continuing:

``For the past decade, N.S.A. has led an aggressive, multipronged effort to break widely used Internet encryption technologies,'' said a 2010 memo describing a briefing about N.S.A. accomplishments for employees of its British counterpart.

I think the encryption thing is a big deal and will continue to be something that is a bone of contention between the tech industry and the government.

With regard to what we do in order to protect ourselves from the government, I think encryption will continue to take off.

BREAK IN TRANSCRIPT

Mr. PAUL. I thank the Senator for that question. I think there is a new sort of political rhetoric attacking encryption, but I think there will be more efforts. This article is from about a year ago, but I think what is going to happen from this--and what I have been hearing from people--is there is ultimately going to be encryption that is not housed by any company. They are going to have encryption--the only way to get to the encryption is through the individual. This is being done because the government has overplayed their hand. Because the government has been such a bully on this, companies are going to continue to get further and further away. What they are going to do is the encryption will only be in control of the user. When that happens, the government is not getting any information at all.

So they are taking a tool that probably has been useful to a certain degree--and I don't mind if we are doing it through warrants and specific extradition--but I think they are pushing companies so hard that I think encryption is going to be put in a place where even the company cannot get to it.

BREAK IN TRANSCRIPT

Mr. PAUL. I think I understand that question. The phone companies aren't excited about it, but they will do it if they are paid and told to do it, basically. But the phone companies, I don't know. I don't how much objection they have had to the current system and the new system. They probably don't want to have to hold all this. There are rumors that the people who want more will require them to.

I don't think, under the current USA FREEDOM Act, they are going to be required to hold the records, but they are going to be encouraged to and paid to hold the records.

So I think the real question is, Is the USA FREEDOM an improvement or are we just going to have bulk collection done by another name, with phone companies holding the records. That is what my fear is.

BREAK IN TRANSCRIPT

Mr. PAUL. Yes, I think that is a big concern. There are a couple of things that I think are alarming. Even two domestic emails could be routed through a server in another country, and they could use that to actually get access to two Americans who are communicating from New Jersey to South Carolina.

But also I think as Senator Wyden has pointed out, it often or sometimes sounds like we are targeting a foreigner simply to get access to an American.

Does the Senator have a question in that vein?

BREAK IN TRANSCRIPT

Mr. PAUL. I think it is a great question, and some are saying that through the backdoor of abusing 702, that if there were 90,000 people targeted last year through using this 702, that we collected the information on 900,000 individuals who were incidental and were not the target at all. So for every one byte of data we are collecting on somebody, we are collecting nine bytes of data on somebody who is not the target.

But that becomes part of this enormous data center that we are building. And many of those people are Americans who were getting through the backdoor.

But also why I am here today is I want the leadership to allow us to have our amendments. That is one of our amendments. That is a joint amendment we have worked on. We have been working on these things for months. This only comes up every 3 years. Should they not give us a day to have a vote on some of these amendments?

BREAK IN TRANSCRIPT

Mr. PAUL. I thank the Senator for that question.

In the New York Times, in March of 2014, Clara Miller writes about some of the costs on U.S. tech companies that are occurring from some of this:

Microsoft has lost customers, including the government of Brazil.

IBM is spending more than a billion dollars to build data centers overseas to reassure foreign customers that their information is safe from the prying eyes in the United States government.

And tech companies abroad, from Europe to South America, say they are gaining customers that are shunning U.S. providers, suspicious because of the revelations by Edward J. Snowden that tied these providers to the National Security Agency's vast surveillance program.

The estimates are in the billions of dollars lost to American companies.

Even as Washington grapples with the diplomatic and political fallout of Mr. Snowden's leaks, the more urgent issue, companies and analysts say, is economic. Tech executives, including Mark Zuckerberg of Facebook, raised the issue when they went to the White House...for a meting with President Obama.

It is impossible to see now the full economic ramifications of the spying disclosures--in part because most companies are locked in multiyear contracts--but the pieces are beginning to add up as businesses question the trustworthiness of American technology products.

The confirmation hearing last week for the new NSA chief, the video appearance of Mr. Snowden at a technology conference in Texas and the drip of new details about government spying have kept attention focused on an issue that many tech executives hoped would go away.

Despite the tech companies' assertions that they provide information on their customers only when required under law--and not knowingly through a back door--the perception that they enabled the spying program has lingered. ``It's clear to every single tech company that this is affecting their bottom line,'' said Daniel Castro, a senior analyst at the Information Technology and Innovation Foundation, who predicted that the United States cloud computing industry would lose $35 billion by 2016.

Forester Research, a technology research firm, said the losses could be as high as $180 billion, or 25 percent of industry revenue, based on the size of the cloud computing, web hosting and outsourcing markets and the worst case for damages.

The business effect of the disclosures about the NSA is felt most in the daily conversations between tech companies with products to pitch and their wary customers. The topic of the surveillance, which rarely came up before, is now ``the new normal'' in these conversations, as one tech company executive described it. ``We're hearing from customers, especially global enterprise customers, that they care more than ever about where their content is stored and how it is used and secured,'' said John E. Frank, deputy general counsel at Microsoft, which has been publicizing that it allows customers to store their data in Microsoft data centers in certain countries.

Isn't that sad? Isn't it sad that a great American company is having to advertise that they are storing their information in other countries because in America we are not protecting your privacy? Isn't that sad, that a great American company, in order to stay in business, is having to advertise to their customers that they are keeping their information in another country?

At the same time, Mr. Castro said, companies say they believe the Federal Government is only making a bad situation worse. ``Most of the companies in this space are very frustrated because there hasn't been any kind of response that's made it so they can go back to their customers and say, 'See, this is what's different now, you can trust us again,''' he said.

In some cases, that has meant forgoing potential revenue.

Though it is hard to quantify missed opportunities, American businesses are being left off some requests for proposals from foreign customers that previously would have included them, said James Staten, a cloud computing analyst at Forester who has read clients' requests for proposals. There are German companies, Mr. Staten said, ``explicitly not inviting certain American companies to join.'' He added, ``It's like, `Well, the very best vendor to do this is IBM, and you didn't invite them.'''

The result has been a boon for foreign countries.

Runbox, a Norwegian email service that markets itself as an alternative to American services like Gmail and says it does not comply with foreign court orders seeking personal information, reported a 34 percent annual increase in customers after news of the NSA surveillance.

Brazil and the European Union, which had used American undersea cables for intercontinental communication, last month decided to build their own cables between Brazil and Portugal, and gave the contract to Brazilian and Spanish companies. Brazil also announced plans to abandon Microsoft Outlook for its own email system that uses Brazilian data centers.

Anybody still think this bulk collection is a good idea for America?

Mark J. Barrenechea, chief executor of OpenText, Canada's largest software company, said an anti-American attitude took root after the passage of the PATRIOT Act, the counterterrorism law passed after 9/11 that expanded the government's surveillance powers.

This is all coming from a New York Times article by Claire Miller from March of 2014.

But ``the volume of the discussion has risen significantly post-Snowden,'' he said. For instance, after the NSA surveillance was revealed, one of OpenText's clients, a global steel manufacturer based in Britain, demanded that its data not cross U.S. orders. ``Issues like privacy are more important than finding the cheapest price,'' said Matthias Kunisch, a German software executive who spurned U.S. cloud computing providers for Deutsche Telekom. ``Because of Snowden, our customers have the perception that American companies have connections to the NSA.''

Security analysts say that ultimately the fallout from Mr. Snowden's revelations could mimic what happened to Huawei, the Chinese technology and telecommunications company, which was forced to abandon major acquisitions and contracts when American lawmakers claimed that the company's products contained a backdoor for the People's Liberation Army of China--even though this claim was never definitively verified.

Silicon Valley companies have complained to government officials that Federal actions are hurting American technology businesses. But companies fall silent when it comes to specifics about economic harm, whether to avoid frightening shareholders or because it is too early to produce concrete evidence.

``The companies need to keep the priority on the government to do something about it, but they don't have the evidence to go to the government and say billions of dollars are not coming to this country,'' Mr. Staten said.

Some American companies say the business hit has been minor at most. John T. Chambers, the chief executive of Cisco Systems, said in an interview that the NSA disclosures had not affected Cisco's sales ``in a major way.'' Although deals in Europe and Asia have been slower to close, he said, they are still being completed--an experience echoed by other ..... companies.

Security analysts say tech companies have collectively spent millions and possibly billions of dollars adding state-of-the-art encryption features to consumer services, like Google search and Microsoft Outlook, and to the cables that link data centers at Google, Yahoo and other companies.

IBM said in January that it would spend $1.2 billion to build 15 new data centers, including in London, Hong Kong, and Sidney, Australia, to lure foreign customers that are sensitive about the location of their data.

Isn't it sad that companies want to avoid being in America? They want to avoid having their information cross our borders.

Salesforce.com announced similar plans this month.

Germany and Brazil, where it was revealed that the NSA spied on government leaders, have been particularly adversarial towards American companies and the government. Lawmakers, including in Germany, are considering legislation that would make it costly or even technically impossible for American tech companies to operate inside their borders.

Yet some government officials say laws like this could have a motive other than protecting privacy. Shutting out American companies ``means more business for local companies,'' Richard A. Clarke, a former White House counterterrorism adviser, said last month.

This is an article that was published on NPR's Web site. The headline is ``As Congress Haggles over Patriot Act, We Answer 6 Basic Questions.''

Quoting from the article:

A key section of the Patriot Act--a part of the law the White House uses to conduct mass surveillance on the call records of Americans--is set to expire June 1. That leaves legislators with a big decision to make: Rewrite the statute to outlaw or modify the practice or extend the statute and let the National Security Agency continue with its work.

I think it will be interesting to see how the debate ultimately plays out. You have what has been passed in the House--the USA FREEDOM Act--and passed in the House overwhelmingly. The majority here probably believes we are not collecting enough bulk data. They would prefer to collect more bulk phone data and aren't too concerned that any privacy interests are being trampled upon.

So you have two sort of contrary opinions in wondering which direction we go. Some who want more collection of data and say we are not collecting enough data say they might live with it if we add in and force the phone companies to keep the data. Right now, the bill doesn't have them keeping the data. But the concern for some of those of us who believe in privacy is that we may just be trading one form of bulk collection for another, that we may be trading a system where the government collects the data and there is a bulk collection for a system where the phone companies have the bulk collection but you are still having the same sort of collection of data.

My concern with the USA FREEDOM Act is that it still, I believe, may allow for a nonspecific warrant. It still may allow for bulk collection in the sense that it says you have to select a specific person, but the specific person can be a corporation. So if you still have a corporation--the problem is that if we put the name ``Verizon'' in and you are getting all of Verizon's customers and the only difference is the phone company is holding the information and then divulging it versus the government holding it, I am not so sure we have had so much of an improvement.

Some will say we just need to be safe, we just need to do whatever it takes, that it doesn't matter if we give up any kinds of basic freedoms or privacy in the process. But I think we give up on who we are as a people if we say that basically, at all cost, regardless of what it takes, we are going to do this to keep ourselves safe.

The thing is that even the President's privacy commission and the President's review commission--two independent, nonpartisan bodies--ended up saying that they didn't think anybody was independently captured, that there was no unique information that was actually gotten from either of these programs, that the bulk collection of data hadn't made us safer but it has infringed upon our privacy.

I think if we don't have a significant debate on this, if we continue to say ``Well, we are up against a deadline, and because there is a deadline, we don't have time for amendments,'' I think we run a real risk with the American people. Congress has about a 10-percent approval rating right now, and some argue that might be a little bit high considering how great a job we are doing--a 10-percent approval rating.

The vast majority of the American people think we have gone too far in the bulk collection of records.

In the ACLU survey we looked at a little bit earlier, in the age group between 19 to 39, over 80 percent of people think we have gone too far and we are not protecting privacy.

(Mr. SCOTT assumed the Chair.)

We just read an article from the New York Times in which they talk about what kind of business is potentially being lost because people don't want American products. I think it is kind of sad. Not only do they not want their data held in a center in our country, they don't want their data crossing into our country.
I don't think we have to be that fearful of terrorism that we have to give up who we are in the process.

I have met some of our young soldiers who have come back with missing limbs. I have met the parents of some who have died. And to a person, they say they were fighting for our Bill of Rights and they were fighting for our Constitution. It is difficult for me to understand how we can take into account the sacrifice they made in war and at the same time, while we are here safe at home, we can't even protect the documents they are fighting for.

I see no reason why we can't rely on the Constitution. I see no reason why we can't rely on traditional warrants. Warrants are not hard to get. Warrants are actually quite easy to get. Warrants are, if anything, very easy to get. On the FISA Court, turning down a warrant is almost nonexistent. So I see no reason why we can't try using the Constitution for a while.

I am concerned that the problem is bigger than just what we are talking about today. We are talking about the bulk collection of records supposedly under section 215 of the PATRIOT Act. If we stop that, how much have we stopped? How much is still in existence? How much are we still doing through other venues?

I think probably the most alarming thing we have come across as I have been talking today is the idea that some people believe the President has inherent powers that are not subject to Congress. That, to me, is very alarming.

It also means that I think that because this opinion persists within the executive branch, there are in all likelihood many programs like the bulk collection of data--many programs that we don't know about, some that we have heard about. It is still not clear to me whether the Stellar Wind Program is completely gone, which involves more than just telephone data, email conversations, computer addresses, and credit cards. What is the government collecting? How much is being collected and under what authority?

It does concern me that there are people--some of them elected officials--who believe in the inherent powers of the Presidency that cannot be challenged even by Congress. We have a lot of work if that is really what we are up against.

I think it would be a big step forward if we do something about the bulk collection of data. But I think, given the court case, it is concerning to me that we might actually make the court case or the future of it moot and that we actually could make things worse. It wouldn't be the first time we have made things worse, thinking we were fixing things and made it worse.

From the opinion of the Second Circuit Court, here are some quotes.

The court writes:

That telephone metadata do not directly reveal the content of telephone calls does not vitiate the privacy concerns arising out of the government's bulk collection of such data. ..... the startling amount of detailed information metadata can reveal, information that could traditionally only be obtained by examining the contents. .....

I think this is a good point because many people want to downplay what metadata is or what you can determine from it. But here is the court acknowledging that you may actually get more detailed information from metadata than what you once got from obtaining the content.

When we think about how true this is, think about if someone were just going to come into your house and take your papers. What could they find? How many people even have personal letters anymore? People don't have anything on paper that is personal at all. A lot of people pay their bills online. But it is amazing, if you put the compilation of all the metadata together, what you can determine.

Remember that a high-ranking intelligence official said that we kill people based on metadata. I presume he is talking about foreigners. But if we are killing people based on metadata, the assumption is that they can get an enormous amount of information from metadata, and we should be very careful about releasing this.

They give an example of the sort of metadata and what it can determine:

For example, a call to a single-purpose telephone number such as a ``hotline'' might reveal that an individual is: a victim of domestic violence or rape; a veteran; suffering from an addiction of one type or another; contemplating suicide; or reporting a crime.

Metadata can reveal civil, political, or religious affiliations; they can also reveal an individual's social status, or whether and when he or she is involved in intimate relationships.

The more metadata the government collects and analyzes, furthermore, the greater the capacity for such metadata to reveal ever more private and previously unascertainable information about individuals.

That is sort of interesting also about metadata. We have so much online and so much information on our phones that you could probably be in someone's house for a month and never find that in paper because so much of our lives revolve through the phone, through things we order and phone calls and all of that, that in the old days what could have been gotten through someone's castle, through someone's actual papers in their house, I think pales in comparison to what you can get simply through metadata even without content.

They make another point, too:

Finally, as appellants ..... point out, in today's technologically based world, it is virtually impossible for an ordinary citizen to avoid creating metadata about himself [or herself] on a regular basis simply by conducting his ordinary affairs.

The order thus requires Verizon to produce call detail records every day on all telephone calls made through its systems or using its service where one or both ends of the phone call are located in the United States.

It is hard for me to believe that there are people who don't understand that what we are talking about here is a general warrant. This is what we fought the Revolution over. This is, as John Adams said, the spark that led to the Revolution. The spark that led to the Revolution was the whole worry and concern, one, that soldiers were writing the warrants, and the other concern was that in writing the warrants, they weren't specific to anyone, they were being written in a general fashion, and that by writing them generally so, there could be an injustice in having an entire group who ends up being subject to a warrant that is not specific.

From the appellate court, we also hear that the metadata has a reach far beyond almost imagination.

In the article ``As Congress Haggles over Patriot Act, We Answer 6 Basic Questions,'' which was published on npr.org, there are several questions they ask about the PATRIOT Act debate.

Most of the talk has been about telephone surveillance, but the question is this:

What about the NSA's surveillance of email and other Internet activities?

This congressional debate has nothing to do with any of NSA's surveillance Internet activity.

That's mostly because of the fact that those programs are authorized by different laws.

The PRISM program, for example, which collects a vast amount of Internet data ..... is covered under section 702 of the FISA Amendments Act.

Some have said that the PRISM Program probably is collecting more information in many ways, maybe even dwarfing the bulk collection of the phone records. So if we don't address section 702 in this debate, this is also what we were talking about earlier, is the backdoor, the ability to say: Well, we are investigating someone in a foreign country, but really they are trying to get access to someone in our country through the backdoor. If we don't address this, we may well not be addressing a significant part of the problem.

This is one of the other questions:

Is there anything else in the House bill we should know about?

The bill [the USA FREEDOM Act] lifts the secrecy surrounding key decisions made by the secret Foreign Intelligence Surveillance Court. Going forward, some will be made public.

I think this is a step in the right direction. There are a lot of legal decisions, and I think we can discuss the pros and cons of the legal decision without having to know the specific details. I think Senator Wyden made a good point on this earlier when he said that it is not the operational details we need to know, but when we are questioning and debating the law, there is no reason why that shouldn't be public knowledge.

One of the reasons we would like to see the court rulings, too, is that the FISA Court found bulk data collection constitutional. I still find that somewhat inconceivable, that a court that is anything less than a rubberstamp could find it somehow reasonable to say that collecting all of our records in advance really is relevant to an investigation. I think it is a pretty significant point that they are not going to query the data until after they get it. So there is no investigation until they have already collected the data.

The other point is that when they say it is relevant, is anybody really determining that arguing one way or the other or do we just accept what the NSA says, that the data is relevant?

Nobody knows what will come of this debate. My hope in going on all day with this debate and trying to force the issue is to try to allow for some votes on some amendments to this. We shouldn't have just an up-or-down vote on whether to extend the PATRIOT Act. I think that when we have 80 percent of the population in some cases but at least two-thirds of the entire population saying that the bulk collection of all of our phone records all of the time without a warrant is something that has gone too far and needs to stop, it is an insult to the American people to think that we are not going to have any vote at all, that we would just have a vote up or down on extending this.

I think we really do need to have a vote, and the vote needs to be on many different alternatives. It shouldn't just be on one alternative. It needs to be on section 702 and the FISA amendments. It should be on a variety of things that could make this better--whether FBI agents should be able to write their own warrants or whether they should be signed by judges. There are a variety of things we need to be talking about.

The Senate could simply take up the House bill and pass the House bill, but I think that is unlikely.

This is an interesting article from The Boston Globe, a while back. It says: ``What your metadata says about you: From MIT's Cesar Hidalgo, a new window on what your email habits reveal.''

The article is written by Abraham Rieseman.

As recently as a few weeks ago, ``metadata'' was an obscure term known mainly to techies and academics. Broadly defined, metadata is data about other data. For the phone company, it might be the time and length of your calls, but not the conversation itself; in the context of email, it means information such as the sender and recipients of a message--basically, everything except what the message actually says.

We spoke earlier about the suspicious activity reports. These are reports that the government requires that banks send in. It adds a cost to your banking, and it is a pretty significant intrusion into the banking affairs and also into an individual's affairs.

This is an article that was written by the ACLU about suspicious activity reports.

Law enforcement agencies have long collected information about their routine interactions with members of the public. Sometimes called ``field interrogation reports'' or ``stop and frisk records,'' this documentation, on the one hand, provides a measure of accountability over police activity. But it also creates an opportunity for police to collect the personal data of innocent people and put it into criminal intelligence files with little or no evidence of wrongdoing. As police records increasingly become automated, law enforcement and intelligence agencies are increasingly seeking to mine this data.

The Supreme Court established ``reasonable suspicion'' as the standard for police stops in Terry v. Ohio in 1968. This standard required suspicions supported by articulable facts suggesting criminal activity was afoot .....

In the suspicious activity reports, though, these kinds of programs threaten this reasonable time-tested law enforcement standard by encouraging the police and the public to report behaviors that do not rise to reasonable suspicion. So it is one thing to say that someone has done something that rises to reasonable suspicion, but it is another to say that activity that could be perfectly normal, like withdrawing $1,000 from the bank or putting $1,000 in the bank, somehow is suspicion of a crime that we should be investigating.

A lot of this stuff has gotten really, really out of control. It is one of the things where actually the newspapers have done a pretty good job of reporting some of the stuff--not necessarily the suspicious activity reports but on some of the other confiscations of people's assets without really evidence of a crime but maybe evidence that they have cash.

You can be driving down the road in DC and make an unsafe lane change and the government asks you if you have money. You then find that the government takes it or the government says: Well, you have $2,000. We will let you keep $1,000 if you sign a statement saying that you will not sue us to get the $1,000 back.

Believe it or not, that is stuff that is still happening in our country. It is called civil asset forfeiture. To make it worse, we actually give a perverse incentive. We say to the local officials that if you capture money from people, we will give you a percentage of it--so the more you take, the more you get.

Some people have shown that people actually go after things that are paid off. There was a motel in New Jersey, the Motel Caswell. Local officials decided they would go after it because, they said, there had been some drug dealings at the motel. It turned out there were 6 people in the motel selling drugs out of 180,000 visits or something ridiculous.

It turned out there were other hotels that had a higher percentage of drug busts done at the hotel, but they owed money and the Motel Caswell was completely paid off. It may have been part of the decisionmaking process, because when the government came and seized the hotel for illegal activity, they took the hotel and went sell it, but it has a lien against it. The bank owns it, and you do not get to sell it very easily. It was paid off. They were going to sell it. It is a $1.5 million hotel. And then, I guess, the local police forces would benefit by that.

It is not just with our records that there is a problem. It is also with the concern for how we adjudicate justice in our country. As we see this moving forward, I think we need to be worried about not only the way our records are collected, but we need to be concerned about justice in general.

As I have traveled around the country, one of the things I have seen is what I call an undercurrent of unease in our country. I traveled to Ferguson. I have traveled to Detroit. I have been to Chicago. I have been to most of our major cities, and I have also been to some of the places where there has been this anger.

I think people are angry because they do not feel that government is treating them justly. People do not like to be treated arbitrarily. In fact, there are some who have given the definition of what is acceptable, what is good government and what is bad government, what is good law and what is bad law, what is just and what is unjust. But whether it is arbitrary or not, Hyack in ``The Road to Serfdom'' talks about that arbitrariness, not having the predictability of knowing what the law will do. That the law does not do the same thing to all individuals is a definition of the injustice that causes people to be unhappy about the way their government treats them.

My fear is that this arbitrary nature of collecting bulk records, of collecting all of our records without a significant warrant--the problem here is going to be something that adds on to a sense of unease that is in our cities and in our country at-large. What happens is that everybody is not treated exactly equal. People do not have the same resources to try to escape the clutches of Big Brother when either data or information is used against them.

One of the little-noticed sections in the USA FREEDOM Act deals with the safety of maritime navigation and nuclear terrorists and conventions implementation. Interestingly, there is a provision somehow in this for civil forfeiture. But I think the biggest problem with civil forfeiture is that we allow it to occur without a conviction. I think no one should have their possessions taken from them. I think you should be innocent until proven guilty.

I see that the Senator from Connecticut has a question. I would be happy to entertain a question without losing the floor.

BREAK IN TRANSCRIPT

Mr. PAUL. I thank the Senator from Connecticut for that question.

I think one of the points my friend was making through the question had to do with the whole idea of relevance, which is sort of an amazing thing.

I think the quote from the privacy and civil liberties commission really hits the nail on the head--that they cannot be regarded as relevant to any FBI investigations required by the statute without redefining the word ``relevant'' in a manner that is circular, unlimited in scope, and out of step with the case law.

The interesting thing is that we want a body that works a little more like a court, and I know the Senator from Connecticut has been in favor of having a special advocate and trying to make it more like a courtroom. I think you can only get the truth if you have people on both sides. If you have people on one side, it is an inevitability that the truth is going to be lost and you are going to list in one direction.

I think that will be a huge step forward, but it does boggle the mind that we can have them arguing that this is relevant to an investigation that has not yet occurred because we are collecting data and then we are going to mine it at some other time for some investigation. So it couldn't be relevant to an investigation because there is not yet an investigation when they are collecting the data. And no FISA Court seemed to question that, so it concerns me as to whether it is a very good kind of undertaking at finding the truth.

So I think the Senator is exactly right, and I believe there are things we can definitely do to make it better. I think the bottom line is that we should not collect bulk data on people who are not suspected of a crime.

One of the sections of the PATRIOT Act that doesn't get quite as much discussion is section 213. That is the sneak-and-peek section and it is not up for renewal, but it is something that also shows how we have really gone awry on that.

Radley Balko has written about this in the Washington Post, and it is how something starts out just a little bit at a time and grows bigger and bigger.

From 2001 to 2003, law enforcement only did 47 sneak-and-peek searches. The 2010 report said it was up to 3,970, and 3 years later, in 2013, there were 11,129 sneak-and-peek searches. That is an increase of over 7,000 requests. That is exactly what privacy advocates argued in 2001 would happen.

The interesting thing is that when you look to see who exactly we are arresting through these sneak-and-peek warrants that were intended to be a lower standard so we could catch terrorists, well, we are going after drug dealers. So, in essence, we have changed from a constitutional standard to catch drug dealers down to a terrorist standard, which is a lower standard.

To make matters worse, there are accusations and implications from data that maybe the war on drugs has a disproportionate racial outcome. I think it is concerning that we are actually not using a constitutional standard but a lower standard.

I have an article that was written by Radley Balko in 2014 that appeared in the Washington Post. He says:

Washington establishment types are often dismissive and derisive of the idea that members of Congress should actually be required to read legislation before voting on it--or at the very least be given the time to read it. There's also a lot of Beltway scorn for demands that bills be concise, limited in scope and open for public comment in their final form for days or weeks before they're voted on. If you're looking for evidence showing why the smug consensus is wrong, here is Exhibit A.

He is talking about the sneak-and-peek and how if we had known what was in it, we would have known in advance that it was not really going to end up being used for terrorists and instead end up being used for domestic crime.

He says:

This is also an argument against rashly legislating in a time of crisis. On Sept. 11, 2001, the federal government failed in most important and basic responsibility--to protect us from an attack. We responded by quickly giving the federal government a host of new powers.

Assume that any power you grant to the Federal Government to fight terrorism will inevitably be used in other context.

The article goes on:

Assume that the primary ``other context'' will be to fight the war on drugs. (Here's another example just from this month.) I happen to believe that the drug war is illegitimate. I think fighting terrorism is an entirely legitimate function of government. I also think that, in theory, there are some powers the federal government should have for terrorism investigations that I'm not comfortable granting it in more traditional criminal investigations. But I have zero confidence that there's any way to grant those powers in a way that will limit their use to terrorism.

Law-and-order politicians and many (but not all) law enforcement and national security officials see the Bill of Rights not as the foundation of a free society but as an obstacle that prevents them from doing their jobs. Keep this in mind when they use a national emergency to argue for exceptions to those rights.

When critics point out the ways a new law might be abused, supporters of the law often accuse those critics of being cynical--they say we should have more faith in the judgment and propriety of public officials. Always assume that when a law grants new powers to the government, that law will be interpreted in the vaguest, most expansive, most pro-government manner imaginable. If that doesn't happen, good. But why take the risk? Why leave open the possibility? Better to write laws narrowly, restrictively and with explicit safeguards against abuse.

Of the 11,000 sneak-and-peek warrants that were issued, 51 were used for terrorism.

We lowered the constitutional standard, but we ended up using it for domestic crime, not for terrorism.

This is happening in other forums. There is something that folks are calling parallel construction. This is an article from the Electronic Frontier Foundation by Hanni Fakhoury entitled ``DEA and NSA Team Up to Share Intelligence, Leading to Secret Use of Surveillance in Ordinary Domestic Crime.''

Add the IRS to the list of Federal agencies obtaining information from NSA surveillance. Reuters reports that the IRS got intelligence tips from DEA's secret SOD unit and were also told to cover up the source of that information by coming up with their own independent leads to recreate the information obtained from SOD.

So let me explain what happens. We once again use a lower standard, a nonconstitutional standard, the standard we are supposed to be using for terrorists. We get information on people who are not terrorists, who may or may not be committing an IRS violation. We tell the IRS. They know it is illegally obtained information, so then they look for another way to prove that this information--other information that they can find--to prove the point that they only knew about it from legally obtained information.

A startling new Reuters story shows one of the biggest dangers of the surveillance state: The unquenchable thirst for access to the NSA's trove of information by other law enforcement agencies.

As the NSA scoops up phone records and other forms of electronic evidence while investigating national security and terrorism leads, they turn over ``tips'' to a division of the Drug Enforcement Agency known as the Special Operations Division. FISA surveillance was originally supposed to be used only in specific authorized national security investigations, but information sharing rules implemented after 9/11 allows the NSA to hand over information to traditional domestic law-enforcement agencies, without any connection to terrorism or national security investigations.
But instead of being truthful with criminal defendants, judges, and even prosecutors about where the information came from, DEA agents are reportedly obscuring the source of these tips.

For example, a law enforcement agent could receive a tip from foreign surveillance, and he could look for a specific car in a certain place.

But instead of relying solely on the tip, the agent would be instructed to find his or her own reason to stop and search the car.

Agents are directed to keep SOD under wraps and not to mention in their reports where they got their information.

If we are going to use standards that are less than the Constitution for IRS investigations, for drug investigations, we ought to just be honest with people that we are no longer using the Constitution. If we are going to use the Constitution, then we shouldn't allow evidence obtained through foreign surveillance and through a lower standard to be used in domestic crime.

(Mr. CRUZ assumed the Chair.)

Parallel construction, which is basically getting surveillance tips and then using them and reconstructing and trying to come up with a different reason for why law enforcement stopped someone, is something that really--if we are not going to be honest about it, someone has to do something to fix this.

After an arrest was made, agents then pretended that their investigation began with the traffic stop, not with the tip they got from our foreign surveillance agencies.

The training document reviewed by Reuters refers to this process as parallel construction.

Senior DEA agents who spoke on behalf of the Agency but only on the condition of anonymity said the process is kept secret to protect sources and investigative methods. Realize they are also keeping it secret from a judge, the defense lawyers, and the prosecution.

Some have questioned the constitutionality, obviously, of this program.

``That's outrageous,'' said Tampa attorney James Felman, a vice chairman of the criminal justice section of the American Bar Association. ``It strikes me as indefensible.''

Lawrence Lustberg, a New York defense lawyer, said any systematic government effort to conceal the circumstances under which cases begin ``would not only be alarming, but pretty blatantly unconstitutional.''

Former Federal prosecutor Henry Hockmeier wrote: ``You shouldn't be allowed to game the system. You shouldn't be allowed to create this subterfuge. These are drugs crimes, not national security cases. If you don't draw the line here, where do you draw it?''

This is an article from the Washington Post by Brian Fung entitled ``The NSA is Giving Your Phone Records to the DEA. And the DEA is Covering It Up.''

A day after we learned of a draining turf battle between the NSA and other law enforcement agencies over bulk surveillance data, it now appears that these same agencies are working together to cover up when those data get shared.

The Drug Enforcement Agency has been the recipient of multiple tips from the NSA.

Realize also that the NSA is supposed to be investigating foreign threats. The NSA was not supposed to be doing anything domestically. We now have them involved in bulk collection, but we also now have them involved in drug enforcement.

The article continues:

DEA officials in a highly secret office called the Special Operations Division are assigned to handle these incoming tips, according to Reuters. Tips from the NSA are added to a DEA database that includes intelligence intercepts, wiretaps, informants, and a massive database of telephone records. This is problematic because it appears to break down the barrier between foreign counterterrorism investigations and ordinary domestic criminal investigations.

Because the SOD's work is classified, DEA cases that began as NSA leads can't be seen to have originated from an NSA source.

So what does the DEA do? It makes up a story of how the agency really came to the case in a process known as parallel construction, Reuters explains. Some defense attorneys and former prosecutors said that parallel construction may be legal to establish probable cause for an arrest, but they said employing the practice as a means of disguising how an investigation began may violate pretrial discovery rules by burying evidence that could prove useful to criminal defendants.

The report makes no explicit connection between the DEA and the earlier NSA bulk phone surveillance uncovered by Snowden.

In other words, we don't know for sure if the DEA's Special Operations Division is getting tips from the same database that has been the subject of multiple congressional hearings. We just know that a special outfit within the DEA sometimes gets tips from the NSA.

There is another reason the DEA would rather not admit the involvement of NSA data in their investigations. It might lead to a constitutional challenge to the very law that gave rise to the evidence.

Earlier this year, federal courts said that if law enforcement agencies wanted to use NSA data in court, they had to say so beforehand and give the defendant a chance to contest the legality of the surveillance. Lawyers for Adele Daoud, who was arrested in a federal sting operation and charged, suspect that he was identified using NSA information but were never told.

Surveys show most people support the NSA's bulk surveillance program strongly when the words ``terrorism'' or ``courts'' are included in the question. When pollsters draw no connection to terrorism, the support tends to wane. What will happen when the question makes clear that the intelligence not only isn't being used for terrorism investigations against foreign agents, but it is actively being applied to criminal investigations against Americans?

Some of the companies have begun to push back on the backdoor mandates that are coming from government to get into our information.

In one of the most public confrontations of a top U.S. intelligence official by Silicon Valley in recent years, a senior Yahoo Inc. official peppered [NSA] director, Adm. Mike Rogers, at a conference on Monday over digital spying.

The exchange came during a question and answer session at a daylong summit on cybersecurity. ..... Mr. Rogers spent an hour at the conference answering a range of questions. .....

The tense exchange began when Alex Stamos, Yahoo's chief information security officer, asked Mr. Rogers if Yahoo should acquiesce to requests from Saudi Arabia, China, Russia, France and other countries to build a ``backdoor'' in some of their systems that would allow the countries to spy on certain users.

``It sounds like you agree with [FBI Director] Comey that we should be building defects into the encryption in our products so that the US government can decrypt,'' Mr. Stamos said. .....

``That would be your characterization,'' Mr. Rogers said, cutting the Yahoo executive off.

Mr. Stamos was trying to argue that if Yahoo gave the NSA access to this information, other countries could try and compel the company [to do the same].

Mr. Rogers said he believed that it ``is achievable'' to create a legal framework that allows the NSA to access encrypted information without upending corporate security programs. He declined to [be more specific].

``Well, do you believe we should build backdoors for other countries?'' Mr. Stamos continued.

``My position is--hey, look''--

This is from Mr. Rogers, Admiral Rogers--

``I think that we're lying that this isn't technically feasible''. .....

He said the framework would have to be worked out ahead of time by policymakers--not the NSA. .....

The back and forth came less than two weeks after Apple, Inc. chief executive Tim Cook leveled his own criticism of Washington, saying at a White House cybersecurity conference in California that people in ``positions of responsibility'' should do everything they can to protect privacy, not steal information.

Mr. Rogers attempted to parry the questions but also signaled he welcomed the debate. .....

Still, Mr. Rogers did little to deflect recent accusations about the NSA activities. For example, he refused to comment on recent reports that the NSA and its U.K. counterpart stole information from Gemalto NV, a large Dutch firm that is the world's largest manufacturer of cellphone SIM cards.

I think the accusations continue to mount. Everywhere we look, we see the anger beginning in our tech industry. We see them wondering about having backdoor mandates built into their product.

I think the Senator from Oregon has been great at pointing this out and has written several op-eds talking about what the harm is of leaving basically a portal or an opening for our government but one that may well be exploited by hackers and may well be exploited by foreign governments.

Does the Senator from Oregon have a question?

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Mr. PAUL. Well, I want to thank the Senator from Oregon for the great questions and also for being supportive and really being the lead figure from the Intelligence Committee trying to make this better.

I think so often our Intelligence Committees don't have enough people who are really concerned with the Bill of Rights as well as national defense, so we get a one-sided view of things. I think over the years you have been able to continue this battle in a healthy way, understanding both sides of it, both with national security but also understanding that who we are as a people is important and that we not give that up--that we not give up our most basic of freedoms in doing this.

I think that power tends to be something people don't give up on easily. So when you have power that you give to people, you have to have oversight. It is incredibly important that we do have oversight on what we are giving up, but it is also important that we see what has gone wrong. The FISA Court model hasn't worked to oversee and regulate the NSA, because when finally a real court looked at this, when finally the appellate court looked at this, what we find is that the appellate court was aghast that basically they were maintaining that this was relevant to an investigation.

Apparently, the way the process worked was the NSA said it was relevant, but there was no debate or dispute. It was just accepted at face value. I thought the privacy commission put it pretty well when they said: Well, how can it be relevant to an investigation that hasn't yet occurred? We are collecting all the bulk data and we are going to query it when we have an investigation. You can't argue that it is relevant to an investigation when there is no such investigation occurring while they are collecting the data. The privacy commission said that basically we are turning words on its head if we are saying something like this is relevant.

So I think the American people are ready for it to end. The American people think the bulk collection of our records with a generalized warrant is a mistake and ought to end. I think we are working very hard, and at this point our hope is that between your actions and my actions, that hopefully leaders of your party and my party will agree to allow amendments to the PATRIOT Act.

The goal of being here today has been to say not only to the American people but to say to the leadership on both sides and to all the Members that we want an open amendment process, that the discussion of the Fourth Amendment is an important discussion and that we shouldn't run roughshod over this by saying there is a limit and a deadline and we don't have time for debate and we are going to put it off yet again.

I thank the Senator from Oregon for helping to make it happen, but my hope is that we can get an answer from the leadership of both parties that they are going to allow the amendments that your office and my office have been working on for 6 or 7 months now.

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Mr. PAUL. I think that is a good question, and the Senator's office and my office have worked for a while to try to come up with FISA reforms. One of them is sort of in the USA FREEDOM Act but maybe could be better, saying that there ought to be a special advocate so there is an adversarial proceeding.

One of the problems in the USA FREEDOM Act, as it is written, is that the advocate is only appointed by the FISA Court and doesn't have to be appointed by the FISA Court. It may well be that a FISA Court that has given a rubberstamp to bulk collection may not be as inclined to give a special advocate.

I also think it is important, as the Senator mentioned many times, that we should get outside of a secret court to a real court, where you really have an advocate that is actually on your side, I think allowing for an escape hatch for people to appeal.

For example, if you are being told by a FISA Court that bulk collection of all the phone data in our country is legal, you should have a route to an appellate court, an automatic route out of FISA to an appellate court. I think the appellate courts are fully capable of redacting, going into closed session if they have to, but then you have a real trial, with a real advocate on both sides. I think that is important as well.

I do have one question or a question that you may be able to reframe into a question; that is, can you give the public a general idea of what percentage of the overall problem of collecting Americans' data is in the form of bulk data and what percentage do you think is coming from Executive order and what do you think is coming from the 702 backdoor collection of data.

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Mr. PAUL. Well, one of the comments that we went through tonight was an opinion by one of the attorneys in the Bush administration. They said, basically, that there were authorities that they were given that were inherent authorities under article II that gave them the right to collect data on Americans. But they also then concluded by saying that Congress had no business at all reviewing this data; that there was no authority--that they were basically powers given to the President and that Congress has no ability--I guess I would be interested, in the form of a question, if the Senator can answer whether he believes there are article II powers of surveillance of American citizens that Congress has no business questioning?

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Mr. PAUL. I guess a followup to that would be this: Are those arguments still being floated from this administration that there are article II powers? There is a debate going on over this Executive Order 12333. The question is whether people are still trying to maintain that Congress has no ability to oversee or review it?

But I have seen, at least in the lay press--I think they say in the lay press that there is some special investigation. Without going into detail, is there some kind of investigation or evaluation of the Executive order being done by us or one of the congressional bodies? That was in the lay press.

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Mr. PAUL. I think one of the most exciting things probably is the court case--the Second Circuit Court of Appeals--and their ruling. My hope, though, had been that it would go to the Supreme Court. My understanding is it has been remanded to a lower court. I think one of the things that we really need is that we need a ruling that updates Maryland v. Smith. We need a ruling that talks about the fact that most people's records are being held in a virtual fashion. I think there needs to be a ruling that comes from the Court that acknowledges that you still retain a privacy interest in your records, even when they are being held outside of your house.

The idea of old fashioned papers in your house--the concept is good, that we should protect that privacy. But I think also the concept technologically is that

you know you will not have papers in your house, but you will have private matters that will be held virtually outside the house--and whether or not the Fourth Amendment protects those. You often have advocates from the government who say that the fourth amendment does not apply to any records once they are outside your house or in other hands. I really think that you do not give up your privacy interest when you let someone else hold your records, that you still maintain an interest in privacy even though someone else holds these records.

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Mr. PAUL. Thank you. I think the American public is ready to end bulk collection. I think there is a bipartisan, across-the-aisle approach that people want to end bulk collection. The time is now. We cannot keep extending this.

I think probably the biggest deal is that the PATRIOT Act does not even justify this. This is a program that needs to end because even those who read the PATRIOT Act, even those who love the PATRIOT ACT, acknowledge that the PATRIOT Act does not even give permission for this. This is something we are doing that there is no permission for. It has to end. I think the American people will be very disappointed in us as a body if it does not end.

This is the time to do it. I agree with the Senator. We are going to do everything we can to stop it. I see the Senator from Utah. Does the Senator from Utah have a question?

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Mr. PAUL. I think the Senator from Utah asked a great question, and I think he framed the debate over the Fourth Amendment very well.

I think if we asked to put the bill on the floor at this hour, we may not be able to find anybody awake to ask permission to have the bill this evening. We haven't been able to locate anyone to get the bill this evening, so I am afraid we will have to say no.

But we have been asking for a full and open debate. Your solution, as well as mine, as well as Wyden's, as well as other's, is to have a full debate on the floor for this.

There were a couple of things you said that I thought were particularly worth commenting on. People say that because there is no evidence that the program is being abused, there is no evidence that we are searching the records of certain people of certain race or religion or abusing people for some reason, that is proof somehow that no abuse is occurring.

But I agree with you that the collection alone is an abuse in and of itself. To me, the basic point and the biggest part of the point is that what we are dealing with is something that is a generalized warrant.

There is nothing specific about collecting all of the records from all Americans all of the time. There is nothing specific about the name ``Verizon.'' I tell people that I don't know anybody named Mr. Verizon. So that can't be a specific individualized warrant. That is a general warrant. That is what we fought the Revolution over--to individualize warrants, to individualize what we were requesting, and, above all, probable cause.

We accepted a lower standard to go after foreigners, to go after terrorists. And part of me says that maybe we could do that just for terrorists. But now we are using it for domestic crime.

One of the biggest things I would like to change is that nothing within the PATRIOT Act or any of this could be used to convict somebody in a domestic court.

Section 213--sneak-and-peak--99.5 percent of the time is used for domestic drug crime now. We have the NSA sharing data that is supposed to be collected on foreigners with the domestic DEA and then making up another scenario where they might have heard about this. But they didn't really hear about this from the NSA.

I think the public at large thinks we have gone way too far--way too far with the bulk collection records. It is not only what we have done, but it is just that there is absolutely--even in the PATRIOT Act, which I object to--no justification for collecting the records. The idea that records could be relevant to an investigation that has not yet occurred puts logic on its head, puts it topsy-turvy to where words don't mean anything.

I am very concerned that there is a lot of surveillance that we don't know about, not only through the PATRIOT Act justification but through Executive order justification. It concerns me that there are still people who are arguing that article II gives unlimited authority to the President, that there is no congressional check and balance to the President with regard to surveillance. There are people making that argument--that there is no limitation to Presidential power.

I think one of the best things our Founding Fathers gave us was this check and balance so we had coequal branches. I think it is a great thing with the Fourth Amendment that a warrant had to be signed by somebody who wasn't a policeman, who wasn't a soldier.

This is one of the additional things I would like to do because we don't get to talk about this very much. We have the ability, and we are talking about the bulk collection of records, but we should also talk about whether we should have hundreds of thousands of warrants written by policemen, by FBI agents. I think warrants should have a check and balance where you have a judge.

There is something that is so civilizing and something that levels the playing field and keeps abuse from happening when a policeman tonight in DC, in front of a house, who wants to go in, is calling someone who is not in hot pursuit

and who hasn't just had a physical altercation with the people they are chasing--someone who is dispassionate and unconnected to the heat of the crime--who is going to give permission for this policeman to go into a house.

We say that a man's house is his castle, and he can defend it. That was the whole idea--that things within the castle were the man's or woman's, we would say now. But it is not only that your records are in the castle anymore. They are in the cloud. And records are virtual. We have whole households that have no paper records.

The amazing thing about records is they are now saying that with metadata records, they can discover more than we could have discovered in a lifetime of looking at your personal letters in your house, because so much information is there, so much can be connected between the dots between all of these things.

I am still not convinced that we aren't collecting data on credit cards, on emails. I think some of this is done through the Executive order that most of us are not privy to. The only people that know anything about Executive Order 12333 and what they are doing on it are people on the Intelligence Committee. I am not convinced we aren't collecting email data.

They currently say that your email--this is the bill you promoted--after 6 months, your email has no protection. Before 6 months, I think the only protection is to the content, not to the header, not to the addressee.

We currently have the opinion. We desperately need the Supreme Court to rule on this. We have the Smith v. Maryland decision, which was in the premodern age, as far as data goes and as far as your papers being held. We desperately need a decision.

My hope was that the appellate court decision would go to the Supreme Court. But my understanding--being just a doctor--is it went the other way. It has been remanded lower and may never make it to the Supreme Court. I don't know that. But I think we do need something at the Supreme Court level.

There have been many who are now arguing that the appellate court--this again from a physician, not a lawyer--is really binding and that there could eventually be some legal injunction against what the government is doing.

But for goodness sake, it perplexes me that the President says: Oh, yes, we need a balanced approach, and I am listening to my privacy commission. I am listening to the review board. Yet I created this out of whole cloth as an Executive order, and I am unwilling to stop it even though the appellate court has told me it is illegal.

He is unwilling to stop it. I think that sort of defines disingenuous--that he is going to stop it as soon as Congress stops it.

It is so hard to get anything done here. We have had vast majorities--not only for the USA Freedom Act but for Thomas Massey's act. We had a vast majority over there to defund it--for Justin Amash, for defunding things that we were doing--big majorities. It is another evidence that the Senate is further distanced from the people, that the House is closer. They are hearing the message stronger.

I think the message is a strong one, and the message is that nobody--I mean, really, the vast majority of Americans are very unhappy with having all of their records collected. That really to me gets back to the whole idea of whether we should accept or validate general warrants. It is still part of my concern, a little bit, with the reform. I want the reform--it could go a long way if we no longer have the ability to put the word ``corporate'' in there and if it were specifically individuals. And I think we have a chance to go maybe even a little further than we have gone in the reform that is being offered to say that we shouldn't be able to request all of the records from a corporation, because there is some retained privacy and there is some retained property interest even in your records. And I think there always has been.

They talk about an expectation of privacy. I would think that if you have a contract, when you sign the agreement, you are agreeing to a privacy contract with an Internet provider or a search provider or a telephone company. I think that is indicating, as they talk about in the cases, an expectation of privacy. Well, I have signed an agreement with the company, and they promised me and I promised them. I would think that for certain is an expectation of privacy in the eyes of the court.

(Mr. RUBIO assumed the Chair.)

So I don't understand how they can argue we have completely given up our records, and that we have no ability at all to retain an interest in our records.

I am very much convinced this is an important debate--that the Bill of Rights is something that we shouldn't look at lightly; that we should, as we move forward, make sure we do protect the things that are important. We shouldn't hurry up and have deadlines, and then say we are not going to have time to debate it.

I see the Senator from Texas, who is also a defender of the Fourth Amendment, is here, and I would be happy to take a question without losing the floor.

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Mr. PAUL. I want to thank the Senator from Texas for joining in the battle to defend the Bill of Rights and the Fourth Amendment. I know he is sincere in that approach. There is absolutely no excuse, no excuse not to debate this and no excuse not to vote on a sufficient amount of amendments, to try to make this better, to try to make the bulk collection of records go away. That is what the American people want. It is what the Constitution demands. My voice is rapidly leaving. My bedtime has long since passed. I think it is time we summarize why we are here today and what my hope is for the future with this issue.

We have had a dozen Senators come down from both parties, from right, left, conservative, liberal, progressive, and Libertarian. We have had several friends come over from the House as well. There is a hunger in America for somebody to stand up, for all of us to stand up, for somebody to do the right thing, to say that the Bill of Rights needs to be defended, that the Bill of Rights is important.

When I think of the Bill of Rights, I think it is not so much for the popular person, it is not so much for the high school quarterback or the prom queen; the Bill of Rights is for the least among us and the Bill of Rights is to try to prevent any kind of systemic bias from entering into the law for the way we treat people. People say: Well, we collect all this data, but we are not abusing anyone. We are doing it perfectly in order.

I agree with Senator Lee that just the collection of the data is the infringement in itself. The whole idea that we could put one name on a warrant and collect 100 million records goes against everything we believe in. It goes against everything we fought for in the Revolution when we fought to be left alone.

I think Justice Brandeis put it best when he said that the right to be left alone is the most cherished of rights, the most prized among civilized men, to be left alone in our castle, or in today's world, to be left alone in our cloud--the time has long since passed where we are going to have paper records--and that is going to be our exact home or exact castle that we are protecting.

The time is now in the digital age that we need to protect our privacy when we loan out our records, and it is different to loan out your records and allow them to be held by a telephone company or by an Internet provider or in the cloud. It doesn't mean you give up your right to privacy. I think you have an expectation of privacy with or without a contract, but often we have an explicit privacy agreement, an explicit privacy contract that we actually have with the phone company and Internet provider. They are supposed to protect our interests. It sends exactly the wrong signal to give liability protection to these companies and say to them that they can run roughshod with us and that they can give their information out.

The bulk collection must end, and I think we have the votes to do it now. We need to end the bulk collection of records, but that is not where this battle ends. There is still a question as to whether the Executive is gathering a great deal of information through Executive order. I think that has to be reviewed, and it has to be reviewed in public.

I agree with my friend Senator Wyden that the specifics of intelligence--who the agents are, how we break code, how we technologically gather information--by all means does not need to be discussed in public, but whether we should collect all Americans' phone records all the time should be discussed in public. It should have been revealed in an honest way.

The fact that the Director of our National Intelligence lied to us and said the program didn't even exist I think is unforgivable and makes him unsuitable to lead our intelligence agency. We have to have trust. Because of this great and enormous power we allow our intelligence agencies to have, we have to have trust, and you cannot have trust when Congress is lied to.

I think, as we move forward today, we have made great strides in presenting arguments in the debate for how we would make things better, how we would better circumscribe this great and ominous power, and how we would better make this power conducive to the Constitution.

The ultimate success will be that we can actually change things, but part of the success will be that we have debated them today, and my hope is that the debate today will let the American public, as well as our leadership in the Senate, know that we are serious about this and that we want to vote on reforms and that we want to vote on several different ways we can fix this issue. If this issue comes up every 3 years, for goodness' sake, can't we spend a couple of days trying to amend this and make it better?

I thank the Senate staff for coming in and staying. I don't think they had much choice in the matter, but I thank them for staying and not throwing things. We will try not to do this but every couple of years or so.

I thank my staff for their help in a long day, and I thank the American people for considering the arguments and for helping us to hopefully push this toward the reform where we all respect the Fourth Amendment and the Bill of Rights once again.

I thank the Presiding Officer, and I relinquish the floor.

I suggest the absence of a quorum.

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