USA Freedom Act

Floor Speech

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Mr. LEE. Mr. President, I am here to speak in support of the USA FREEDOM Act, a bill that would restrain the power of government to collect data on phone calls made by average, everyday, ordinary, law-abiding American citizens--300 million-plus Americans--without any suspicion that any one of them is engaged in any kind of criminal activity, any kind of activity involving the collection of foreign intelligence.

I appreciate the support I have received for this bill, and I appreciate the opportunity to work with my distinguished colleague, the senior Senator from Vermont. Senator Leahy and I feel passionate about this issue. Although Senator Leahy and I come from different ends of what some would perceive as the political spectrum and although we don't agree on every issue, there are many issues on which we do agree. There are many issues, such as this one, on which we can say that these issues are neither Republican nor Democratic, they are neither liberal nor conservative, they are simply American issues, constitutional issues. They are issues that relate to the proper order of government. They are issues that relate to the rule of law itself.

The Constitution of the United States protects the American people against unreasonable searches. It does so against a long historical backdrop of government abuse. Over time, our Founding Fathers came to an understanding that the immense power of government needs to be constrained because those in power will tend to accumulate more power and, in time, they will tend to abuse that power unless that power is carefully constrained.

America's Founding Fathers were informed in many respects by what they learned from our previous national government, our London-based national government. They were informed, in part, by the story of John Wilkes.

John Wilkes--not to be confused with John Wilkes Booth, the assassin of Abraham Lincoln--John Wilkes was a member of the English Parliament. He was a member of Parliament who in 1763 found himself at the receiving end of King George III's justice.

In 1763, John Wilkes had published a document known as the North Briton No. 45. The North Briton was a weekly circular, a type of news magazine in England--one that, unlike most of the other weeklies in England at the time, was not dedicated to fawning praise of King George III and his ministers. No. This weekly would from time to time criticize the actions of King George III and his ministers.

At the time John Wilkes published the North Briton No. 45, he became the enemy of the King because he had criticized certain remarks delivered by the King in his address to Parliament. While not openly directly critical of the King himself, he criticized the King's minister who had prepared the remarks.

For King George III, this was simply too much; this simply could not stand. So, before long, on Easter Sunday 1763, John Wilkes found himself arrested, and he found himself subject to an invasive search--a search performed pursuant to a general warrant and one that didn't specify the names of the individuals to be searched, the particular places to be searched, or the particular items subject to that invasive search. It said, basically, in essence: Go and find the people responsible for this horrendous publication, the North Briton No. 45, and go after them. Search through their papers and get everything you want, everything you need.

John Wilkes decided that his rights as an Englishman prevented this type of action--or should have, under the law, prevented this type of action--so he chose to fight this action in court. It took time. John Wilkes spent some time in jail, but he eventually won his freedom. He was subsequently reelected to multiple terms in Parliament. Because he fought this battle against the administration of King George III, he became something of a folk hero across England.

In fact, the number 45, with its association with the North Briton No. 45--the publication that had gotten him in trouble in the first place--the number 45 became synonymous not only with John Wilkes but also with the cause of freedom itself. The number 45 was a symbol of liberty not only in England but also in America. People would celebrate by ordering 45 drinks for their 45 closest friends. People would recognize this symbol by writing the number 45 on the walls of taverns and saloons. The number 45 came to represent the triumph of the common citizen against the all-powerful force of an overbearing national government.

With the example of John Wilkes in mind, the Founding Fathers were rightly wary of allowing government access to private activities and the communications of citizens. They feared not only that the government could seize their property but that it could gain access to details about their private lives. It was exactly for this reason that when James Madison began writing what would become the Fourth Amendment in 1789, he used language to make sure that general warrants would not be the norm and, in fact, would not be acceptable in our new Republic.

Ultimately, Congress proposed and the States ratified the Fourth Amendment to the U.S. Constitution, which provides in pertinent part that any search warrants would have to be warrants ``particularly describing the place to be searched and the persons or things to be seized.''

General warrants are not the norm in America. General warrants are not acceptable in America. They are not compatible with our constitutional system. Yet, today, we see a disturbing trend, one that bears some eerie similarities to general warrants in the sense that we have the NSA collecting information--data--on every phone call that is made in America. If a person owns a telephone, if a person uses a telephone, the NSA has records going back 5 years of every number a person has called and every number from which a person has received a call. It knows when the call was placed. It knows how long the call lasted.

While any one of these data points might themselves not inform the government too much about a person, researchers using similar data have proven that the government could, if it wanted to, use that same data set, that same database to discern an awful lot of private information about a person. The government could discern private information, including a person's religious affiliation; political affiliation; level of activity politically, religiously, and otherwise; the condition of a person's health; a person's hobbies and interests. These metadata points, while themselves perhaps not revealing much in the aggregate, when put into a large database, can reveal a lot about the American people.

This database is collected for the purpose of allowing the NSA to check against possible abuses by those who would do us harm, by agents, foreign intelligence agents, spies. But the problem here is that the NSA isn't collecting data solely on numbers that are involved in foreign intelligence activity, nor is it collecting data solely on phone numbers contacted by those numbers suspected to be involved in some type of foreign intelligence activity. They are just collecting all of the data from all of the phone providers. They are putting it in one database and then allowing that database to be searched.

This issue was recently challenged in court. It was challenged and was recently the subject of a ruling issued by the U.S. Court of Appeals for the Second Circuit based in New York. Just a few days ago, this last Thursday, the Second Circuit concluded that Congress, in enacting the PATRIOT Act, in enacting section 215 of the PATRIOT Act--the provision in the PATRIOT Act that claims to justify this bulk data collection program--the Second Circuit concluded that section 215 of the PATRIOT Act does not authorize bulk collection. It does not authorize the NSA to simply issue orders to telephone service providers saying: Send us all of your data. The language in the PATRIOT Act permitted the government to access the records that were ``relevant to an authorized investigation.'' That is the language from section 215 that is at issue.

The government argued in that case that the term ``relevant'' in the context of the NSA's work meant and necessarily included every record regarding every telephone number used by every American. By interpreting it this way, they tried to basically strip all meaning from the word ``relevant.'' If Congress had meant every record, Congress could have said every record. It did not. That is not to say it would have been appropriate for Congress to do so, and had Congress legislated in such broad terms, I suspect there would have been significant concern raised, if not in court then at least within this Chamber and within the House of Representatives. But, importantly, Congress did not adopt that statutory language. Congress instead authorized NSA to collect records that are ``relevant to an authorized investigation.''

The Second Circuit agreed that this is a problem, holding last week that the bulk collection program exceeded the language of the statute--specifically, the word ``relevant.'' While ``relevant'' is a broad standard, it is intended to be a limiting term whose bounds were read out of the statute by a government willing to overreach its bounds.

The proper American response to government overreach involves setting clear limits--limits that will allow the people to hold the government accountable. We must not permit this type of collection to continue.

While it is true that a single call record reveals relatively little information about a person, again, the important thing to remember is that when we aggregate all of this data together, the government can tell a lot about a person. I have every confidence that and I am willing to assume for purposes of this discussion that the hard-working, brave men and women who work at the NSA have our best interests at heart. I am willing to assume for purposes of this discussion that they are not abusing this database as it stands right now.

Some would disagree with me in that assumption, but let's proceed under that assumption, that they are law-abiding individuals who are not abusing their access to this database. Who is to say the NSA will always be inhabited only by such people? Who is to say what the state of affairs might be 1 year from now or 2 years or 5 years or 10 or 15 years? We know that in time people tend to abuse these types of government programs.

We know from the Church report back in the 1970s that every administration from FDR through Nixon used our Nation's intelligence-gathering activities to engage in espionage. It is not a question of if such tools will be abused; it is a question of when they will be abused. It is our job as Senators to help protect the American people against excessive risk of this type of abuse. That is why Senator Leahy and I have introduced the USA FREEDOM Act. It directly addresses the bulk data collection issue while preserving essential intelligence community capabilities.

Rather than relying on the government's interpretation of the word ``relevant,'' our bill requires that the NSA include a specific selection term--a term meant to identify a specific target--and that the NSA then use the term to limit to the greatest extent reasonably practicable the scope of its request.

We give the government the tools to make targeted requests in a manner that parallels the current practice at the NSA--in many respects, a practice that is currently limited only by Presidential preferences.

This bill would enable the court to invite precleared privacy experts to help decide how to address novel questions of law, if the court wanted input.

The bill also would increase our security in several ways, including by providing emergency authority when a target of surveillance enters the United States to cause serious bodily harm or death and instituting the changes necessary to come in line with the Bush era nuclear treaties.

This bill was negotiated in consultation with the House Judiciary Committee, the House Intelligence Committee, and the intelligence community at large. It is supported by the chairman and ranking members of the House Judiciary Committee, the House Intelligence Committee, and the Director of National Intelligence. It enjoys broad support from industry and from privacy groups.

This is a compromise--an important compromise that will enable us to protect Americans' privacy while giving the government the tools it needs to keep us safe. This is a compromise that is expected to pass the House overwhelmingly, and it is a bill I think we should take up and pass as soon as they have voted.

So I would ask my friend, my colleague, the distinguished senior Senator from Vermont, about his insights. My friend from Vermont has served his country well, having served a significant amount of time in the U.S. Senate. Prior to that time, he served as a prosecutor--a prosecutor who had to follow and was subject to the Fourth Amendment.

I would ask Senator Leahy, in his experience as a prosecutor and as a Senator, what he sees as the major benefits to this legislation and the major pitfalls to the NSA's current practice of bulk data collection.

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