Reforming Intelligence and Securing America Act--Motion to Proceed--

Floor Speech

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Mr. WYDEN. Mr. President, I rise in strong opposition to this FISA bill. And, to begin, there is a central question before the U.S. Senate, and that is: Who should be forced to help their government spy?

The legislation coming from the other body gives the government unchecked authority to order Americans to spy on behalf of their government. This was slipped in, Mr. President, in the last minutes in the House of Representatives' bill, and this is the first time this language has ever been considered here in the U.S. Senate.

Under current law--section 702 of the Foreign Intelligence Surveillance Act--the government can order the phone companies and email and internet service providers to hand over communications. This bill expands that existing power dramatically. It says: The government can force cooperation from ``any other service provider who has access to equipment that is being or may be used to transmit or store wire or electronic communications.''

Now, the language I just read to the Senate means that, if you have access to any communications, the government can force you to help it spy. That means anybody with access to a server, a wire, a cable box, a WiFi router, a phone, or a computer.

So think for a moment about the millions of Americans who work in buildings and offices in which communications are stored or passed through. After all, every office building in America has data cables running through it.

These people are not just the engineers who install, maintain, and repair our communications infrastructure. There are countless others who could be forced to help the government spy, including those who clean offices and guard buildings. If this provision is enacted, the government could deputize any of these people against their will and force them, in effect, to become what amounts to an agent for Big Brother--for example, by forcing an employee to insert a USB thumb drive into a server at an office they clean or guard at night.

This can all happen without any oversight whatsoever. The FISA Court won't know about it. The Congress won't know about it. Americans who are handed these directives will be forbidden from talking about it. Unless they can afford high-priced lawyers with security clearances who know their way around the FISA Court, they will have no recourse at all.

Now, importantly, Mr. President--and you and I have talked about this--supporters of this provision will say that this doesn't change the fact that section 702 only targets foreigners overseas. But if the government thinks that those targets are communicating with people in the United States, they can go right to the source: the WiFi, the phone lines, the servers, the transmitters that store those communications.

If the government has an interest in those foreign targets, well, the Americans whose communications get collected are just plain out of luck.

Supporters of this provision will also say this was necessary because of a FISA Court opinion. I disagree. That opinion didn't gut section 702. This provision is not necessary, and there certainly is no justification for this vast expansion of surveillance authorities.

Supporters also claim that the provision has a narrow purpose and that the government doesn't intend to start tapping into everybody's phone line or WiFi, but that is not how this provision is written. It is not reflected in the actual legislation.

And I would say, respectfully, that anybody who votes to give the government vast powers under the premise that intelligence Agencies won't actually use them is being pretty darn naive.

Supporters also point to a handful of exceptions that were tacked onto this provision, excluding things like hotels and coffee shops. Anybody who reads the text will see that these provisions clearly are not designed to work. Even the coffee shop exception is meaningless because it wouldn't cover a company that maintains the coffee shop's WiFi. And the fact that there are a couple of random exceptions further proves my point.

This provision is going to force a huge range of companies and individuals to spy for their government.

Supporters have even argued that the bill had to be broadly written because what the government actually wants to do is secret. That is some ``Alice in Wonderland'' logic.

First, the American people deserve to know when the government can spy on them and when it can't. If you clearly can't explain to American voters why you need new powers, then you shouldn't have them.

And the distinguished Presiding officer of the Senate from Vermont, he has asked questions about this as well.

Second, it doesn't matter what the government might be secretly intending to do with these authorities at the moment. There is a statutory authority that will be in place for years, during which time the government may very well decide to dramatically expand its surveillance activities.

Now, some of my colleagues say they aren't worried about President Biden abusing these authorities. Well, last time I looked, the law applies to Presidents, regardless of their political power--excuse me-- regardless of their position. In that case, how about President Trump? Imagine these authorities in his hands. If you are worried about having a President who lives to target vulnerable Americans, to pit Americans against each other, to find every conceivable way to punish perceived enemies, you ought to find this bill terrifying.

The bill expands 702 authorities in other ways. For example, it includes a dramatic increase in the use of 702 in vetting travelers to the United States. It requires that the Attorney General enable searches on all travelers, tens of millions of people who come to the United States annually. This is a dragnet search of every work colleague, neighbor, and classmate who is here on a visa; every grandparent visiting for a wedding or a funeral.

So what I have done in the last 10 or 12 minutes is point out that these are just some of the ways in which this bill expands warrantless surveillance authorities. On top of all of that, it fails to reform section 702 in any meaningful way.

I will start with the warrantless searches of Americans' communications swept up in section 702 collection. These searches have gone after American protesters, political campaign donors, even people who simply reported crimes to the FBI. The abuses have been extensive and well documented.

Now, supporters of this bill are going to argue: Well, the FBI has taken care of things. They have cleaned up their act.

But even after the FBI made changes to its internal policies, abuses continued, including searches for a U.S. Senator, State senator, and a State judge who had complained to the FBI about police abuses.

But the broader concern is that, without checks and balances, there is nothing preventing a rapid increase of abuses after reauthorization.

Supporters of this bill will say that it codified the FBI's internal changes. But what I would say is: Without real checks and balances written into the law, what good are these changes?

Reformers have put forward extremely modest, commonsense solutions. Warrants would not be required for all U.S. person searches. Reform proposals allow the government to see whether an American is communicating with foreign agents. A warrant is required only when the government wants to read the content of these communications--a situation that arises less than 2 percent of the time. Our provision also allows for emergency searches and has exceptions for imminent threats of death or injury, preexisting law enforcement or FISA warrants, consent, and access to malware in cyber attacks.

This modest reform should be debated and voted on in the Senate.

There are other commonsense reforms to section 702 that also are not in this bill. For example, it doesn't protect Americans against reverse targeting, and it doesn't prohibit the collection of domestic communications.

Finally, the bill should have been an opportunity to pass meaningful protections for Americans' privacy from abusive government subpoenas targeted at the most vulnerable groups in our society, including women, religious and racial minorities, and LGBTQ people.

Mr. President, 15 States have now banned abortion, with more on the way. When States enforce bans on reproductive health access, they will use everything from location data generated by connected cars and the smartphone in the patient's pocket to the Google search that the patient used to find the reproductive health facility or online telemedicine service. All of that can be obtained without a court order.

Congress needs to safeguard Americans' privacy, not give the President new surveillance powers. Congress has the time to draft comprehensive privacy and cybersecurity legislation, including a 702 reauthorization. My own view is that Chairman Durbin's SAFE Act and my bipartisan, bicameral Government Surveillance Reform Act are both bills that have support across the aisle, across the Capitol, and they are ready for consideration.

I am going to close with this: This Chamber has the time to do the right thing. Senators do not need to rubberstamp a disastrous surveillance bill just because the Senate is, once again, considering it at the last possible moment. Once again--you can set your clock by it--the Senate considers FISA at the last possible moment.

The FISA Court recently renewed the court's annual 702 certifications, which authorize surveillance until April 2025. Let me repeat that. The FISA Court recently renewed the court's annual 702 certifications, which authorize surveillance until April 2025. That means there is no need for Congress to offer up a rush job. But under no circumstances should the U.S. Senate be cowed by those who say Senators have no choice except to sign off on whatever piece of paper the executive branch requests.

Reformers on both sides of the aisle here in the Senate have been ready and willing since last fall to have this debate; yet the status quo crowd wouldn't pick up the phone until the last possible minute to ensure that this body wouldn't have time for anything but a last-second vote on what I believe is a dangerous bill. The only way this body is going to have a real debate about reforming government surveillance is by rejecting the House bill and standing up for the Senate's independence and Americans' constitutional rights.

As I have said on this floor before--and I think I will do it-- throughout my time in public service, Ben Franklin got it right: Americans don't have to sacrifice liberty for security. The reality is, security and liberty aren't to be mutually exclusive. We can have both. The Congress has a duty to deliver a FISA law that does both, and I urge my colleagues to pursue exactly that.

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