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Floor Speech

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Mr. WYDEN. Mr. President, yesterday, I rose to explain my opposition to the nomination of Joshua Rudd to be the Director of the National Security Agency and to lead Cyber Command. During his hearing, General Rudd failed to demonstrate a bare minimum understanding of the constitutional limits on NSA activities.

His responses to questions about privacy rights and transparency were deeply troubling. He wouldn't commit to the Agency's past policy of not purchasing and using very sensitive location data on Americans, and he wouldn't rule out secretly violating public policies and guardrails on NSA activities.

While I admire the nominee's many years of military service, he does not have a background in national signals intelligence activities or cyber operations that would qualify him for this position.

Now, he is not the first unqualified nominee. In fact, there are currently no qualified, Senate-confirmed officials in charge of cyber security.

The country faces serious cyber security threats. This is truly a five-alarm fire. Yet the President keeps nominating officials to key cyber security roles who have less knowledge of the topic than an undergraduate computer science major.

General Rudd is the wrong person for the job, and I oppose his nomination. But if the Senate confirms General Rudd despite his lack of familiarity with basic constitutional principles, it is all the more essential--truly important--that the Senate pass legislation to protect against surveillance abuses.

So this morning, I am going to take just a few minutes to discuss why the government's surveillance activities are dangerously broad and how Congress can protect the privacy of Americans and protect the security of our country.

I intend this morning to talk about three issues that are going to come before Senators in the next 3 weeks. Let me repeat that. These three issues will be before Senators very shortly. They are section 702 of the Foreign Intelligence Surveillance Act, surveillance of Americans by ICE, and the dangerous ways that artificial intelligence can be used to surveil American citizens.

As most of my colleagues know, there is a section in the Foreign Intelligence Surveillance Act--it is section 702--that expires in just a few weeks. Congress is going to soon debate its reauthorization.

I have been doing this for a while, and I know how it usually plays out. Opponents of reforming section 702 don't want a real debate where Members can decide for themselves which reform amendments to support. So what happens is there is an inadequate bill that is brought up, magically shows up a few days before the authorization expires, and Members are told: Holy Toledo, there is just no time to do anything except pass that bill. And it is always said that if the Senators vote for any amendments, the program dies, and terrible things that we don't want to have happen will all happen, and it will be the Senators' fault.

So this morning, I want to make sure that people know you shouldn't buy into this. It is a disservice to our constituents and to the constitutional responsibilities we all have. The Senate can have a debate. The Senate can consider amendments on the merit.

One more point I will return to later: Senators should not accept secret interpretations of the legislation they vote on.

The country needs to have an open debate about the surveillance authorities that directly affect the privacy and constitutional rights of Americans, and it is a debate that shouldn't exclude the American people.

So, first, let's lay some groundwork for this discussion. This important law is section 702 of the Foreign Intelligence Surveillance Act. It authorizes a warrantless surveillance program. The FISA Court approves the overall program, but it doesn't review the individual targets. Picking targets is up to the government. Targets do not have to be suspected terrorists or spies; anyone the government believes possesses foreign intelligence information is fair game.

The targets are supposed to be foreigners, but there are lots of them. The most recent public data was for 2024 when there were more than 291,000 targets, which is more than triple what it was 10 years before.

Some of these targets are going to be talking to Americans, and the communications of Americans are going to be collected by the government. In many cases, these will be law-abiding Americans having perfectly legitimate conversations. Journalists, foreign aid workers, people with families overseas all could have their communications swept up in the surveillance just because they were talking to somebody outside the country.

We don't know exactly how many Americans' communications are swept up by what the government calls incidental collection. That is because the government refuses to tell us. But we know it is large; we know it is increasing. So the question Congress needs to consider is how to target foreign threats while protecting the rights of Americans.

Ben Franklin said that those who would sacrifice liberty for security are going to lose both and deserve neither. But smart policies, which are something I feel particularly strong about, give you both. They are not mutually exclusive. Liberty and security--you can have both, but you need smart policies.

With that principle in mind, the best way to protect the rights of Americans is to ensure the government can't conduct searches for Americans' private conversations in all that 702 data without a warrant. Smart policies should include certain exceptions to the warrant requirement, and the law should allow for warrantless searches in emergencies, but as a general matter, the government shouldn't be allowed to comb through all that collection of Americans' communications without court oversight.

For years, there has been jaw-dropping abuse of these searches. That has been done especially by the FBI. Some internal administrative changes were made as a result. Two years ago, when Congress last reauthorized 702, opponents of reform made a big deal about those changes. But let me give you an example of how the changes from the 2024 reauthorization bill fell short.

There is a category of searches that is considered especially sensitive. It includes searches for elected officials, Presidential appointees, Governors, political candidates, American political organizations and the people who lead them, as well as media organizations and journalists. All are involved in this area.

So what did the last reauthorization bill do to ensure that the government wasn't abusing its authority by combing through all those communications to look for journalists and Governors and Senators? The so-called big reform was to require the approval of the Deputy FBI Director for those sensitive searches.

Until 2 months ago, the Deputy FBI Director was Mr. Dan Bongino. As most of my colleagues know, he is a longtime conspiracy theorist who has frequently called for specious investigations of political opponents. This is the man whom the President and the U.S. Senate put in charge of these very sensitive searches.

His replacement is Deputy Director Andrew Bailey, who is another highly partisan election denier who recently directed a raid on the Georgia election office to justify the conspiracy theories of the Trump administration.

I don't know about my colleagues, but their so-called reform doesn't make me feel better. I think we are all going to feel worse. But it is even worse than it appears. The FBI has refused to even keep track of all the sensitive searches the Deputy Director considered. The inspector general urged the FBI to just put this information into an easy spreadsheet, and they refused to do that. That is exactly how much the FBI does not want oversight.

There are a lot of other reforms that are desperately needed to 702. Later this week, I will be introducing bipartisan, bicameral legislation to enact critical reforms to government surveillance-- including 702. I am not going through all of the reforms today, but this is a bipartisan, bicameral effort. And I especially want to point to a new provision of 702 that urgently needs to be repealed.

Two years ago, during the last reauthorization debacle, something really bad happened. Over in the House, existing surveillance law was changed so that the government could force anybody with access to communications to secretly collect those communications for the government. As I pointed out at the time, that could mean anybody installing or repairing a cable box or anybody who was responsible for a Wi-Fi router. It was a jaw-dropping expansion of authorities that could end up forcing countless ordinary Americans to secretly help the government spy on their fellow citizens.

When the provision was introduced, the Biden administration knew it had a problem. This was such a dramatic and disturbing expansion of section 702 that the Biden Justice Department had to promise it would only use these authorities in certain narrow situations.

My colleague from Virginia, who is my seatmate on the committee, acknowledged that the law as written was badly flawed, and he vowed, to his credit, to fix this overbroad provision at the earliest opportunity. Unfortunately, it has not been fixed yet.

The Biden administration refused to tell the public when it would use this dangerous, incredibly broad provision. The Trump administration certainly isn't providing any details about it. So Congress isn't having a real, informed debate about this staggering provision and whether this vast and dangerous expansion of surveillance is justified.

I can tell you my view. This expansion of the government's authority is not justified, and even if it were narrowed to the circumstances that the Biden administration described in secret, I believe it is time to get rid of the provision.

But here is the other thing: Whatever secret promise the Biden administration made about using these unchecked authorities with restraint, the current administration isn't going to feel bound by that. So whatever the previous administration intended to accomplish with the provision, there is absolutely nothing preventing the current administration from conscripting the cable guy, tech support men and women, and others to secretly spy on Americans.

The past 15 years have shown that unless Congress has an open debate about surveillance, the laws that are passed cannot be assumed to have the support of the American people. That is fundamentally wrong. Right now, the government is relying on secret law with regard to section 702 of FISA.

I already mentioned that the provision that was stuck into the last reauthorization bill could allow the government to force all sorts of people to spy on their neighbors. I have explained the details of how the Biden administration chose to interpret it and how the Trump administration is going to interpret it and that it is all a big secret. Americans have the right to be confused and angry that this is how the government and Congress choose to do business.

There is another example of secret law related to section 702, and it affects the privacy rights of the American people. For years, I have asked various administrations to declassify it. Thus far, they have all refused, although I await a response from DNI Gabbard. I strongly believe that this matter should be declassified and that Congress needs to debate it openly before 702 is reauthorized. The fact is, when it is eventually declassified, the American people are going to be stunned that it took so long and that Congress had been debating this authority with insufficient information.

Now I want to briefly explain why our coalition is attaching all of these other reforms to a section 702 bill. The reason is that no matter how concerned the public is about abusive surveillance, trying to address this problem with a piecemeal approach--pushing one specific reform after another--would be impossible. So a comprehensive approach that attaches these reforms to legislation reauthorizing 702 is the most effective way to deal with the problems.

So let me stress, if you are concerned about ICE and CBP and how they are collecting information on Americans--even as they terrorize our towns and cities--supporting our surveillance reform legislation is the one way you can do something specific about it now.

For example, our bipartisan reform bill takes on an issue I have been working on for years. It is the government's purchase of private information on the American people from one of the sleaziest industries in America, which is the one run by the data brokers. Both ICE and CBP have purchased and used Americans' location data--highly sensitive information--that can reveal what medical clinics you go to, what protests you are involved with, and the friends and family you see.

The Agencies have made various arguments to justify collecting these records, including the false assertion that all Americans have actually consented to location data being collected.

I want to emphasize that the government, in these cases, bought the records of millions of Americans' movements without any warrant or court oversight whatsoever. If the FBI wants to wiretap just one person's phone or to obtain a week's worth of location information about where that person went from a phone company, the Agency would need to go to a judge and justify the surveillance. That is what the Constitution requires. But if the government wants to buy that very same location data about millions of Americans, the government maintains that it doesn't need anything except a credit card.

In 2023, it was forced to shut down a program to purchase the location data of our people due to scrutiny that had been done by the inspector general and Congress, but last year, there were public reports that it had resumed this dangerous practice, and ICE is currently stonewalling congressional oversight on it.

Location data is not the only sensitive information on Americans that the government is purchasing without a warrant. Web browsing information--what websites Americans visit--is obviously very private. Just imagine the government looking over your shoulder all the time when you are using your phone. It is almost equivalent to spying on your thoughts. That is what happens when the government gets together with these sleazy data brokers. And it is not just ICE; the Pentagon, the IRS, Customs and Border Protection, the FBI, the Secret Service-- all of them have purchased Americans' location information or web browsing information.

The government's purchase of all of this private information ought to be enough, but I want to wrap up by talking about how artificial intelligence could be used on these records.

Artificial intelligence tools are designed to comb through enormous datasets, find patterns, and identify behaviors of interest to the government. A few years ago, Americans may have believed that their personal information would be overlooked in an ocean of data. Now we know AI can be looking at everybody.

I have been warning for nearly a decade that data available for purchase from companies was just as sensitive as information the government collects directly. Creating AI profiles of Americans based on that data represents a chilling expansion of mass surveillance that must not be allowed.

As my colleagues are aware, the Trump administration decided to single out one company over the weekend for punishment because the company didn't want its artificial intelligence tool used for the mass surveillance of Americans. The company's CEO said that if the government's purchase of Americans' locations, web browsing, and other sensitive data is currently legal, it is only because the law has not yet caught up with the rapidly growing capabilities of AI.

That in a nutshell is the problem our bipartisan legislation will fix--update the law to current realities and stop the government from buying data on Americans from sleazy data brokers. It has to be addressed in a section 702 reauthorization bill which Congress will actually consider, because if legislators don't seize this opportunity, technology will just get further and further ahead of the law, and Americans will rightly have little faith that Congress is interested in protecting their privacy.

Now, with this thought, I am going to close. We are considering a nominee to be the Director of the NSA who refused to answer whether the government needs a warrant to spy on people in the United States. He would not commit to maintaining the NSA's policy of not purchasing location data without a warrant. He wouldn't commit to telling the American people if the NSA violates the policies and guardrails of successive administrations that were made public. This nominee wouldn't even promise to tell the Senate Intelligence Committee about these matters.

I am urging my colleagues to oppose this nomination. Regardless, I am urging that the issues related to privacy and the rule of law raised by this nomination are considered in comprehensive surveillance reform legislation.

I am part of a bipartisan coalition, and our bipartisan, bicameral bill, the Government Surveillance Reform Act, is going to be introduced shortly. I would be glad to talk to colleagues, regardless of their party and philosophy, about it, and I urge them to support the legislation.

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