[国会记录第161卷，第86号（2015年6月1日星期一）] [参议院] [参议院]美国自由行为McConnell先生。主席先生，昨晚参议院投票推动了房屋通过的FISA法案。我们将尽快投票。在我们的路上，我们应该采取一些致辞措施，以确保由该立法设想的新系统 - 我们很快必须依赖于保持我们国家的安全 - 实际上是实际工作的。昨晚提交的修正案将有助于做到这一点。例如，一个修正案将确保有足够的时间来构建和测试尚不存在的系统。一项修正案将确保有足够的时间来构建和测试甚至不存在的系统。另一个人需要一旦新系统实际建造，国家情报总监就会审查它并证明它实际上有效。我会再说一遍。第二次修正案需要，一旦新系统实际建造，国家情报总监就会审查新系统并证明它实际工作。 Amendment No. 3 would require simple notification if the providers decide to change their data-retention policies. It will just require them to notify us if the providers decide to change their data-retention policies. Three amendments to improve the bill. These fixes are common sense, and whatever one thinks of the proposed new system, there needs to be basic assurance that it will function as its proponents say it will. The Senate should adopt these basic safeguards. I had hoped to see committees working hard to advance bipartisan, compromise FISA legislation this week, which is why I had offered several temporary extensions of the existing program to allow the space for that to occur. But these proposed short-term extensions were either voted down or objected to, including a very narrow extension of some of the least controversial tools contained within the program that we are considering. So this is where we are. It now falls on all of us to work diligently and responsibly to get the American people the best outcome that can be reasonably expected in this reality with which we are confronted. That is my commitment, and I know many of my colleagues share it as well. Mr. President, I suggest the absence of a quorum. The PRESIDING OFFICER. The clerk will call the roll. The bill clerk proceeded to call the roll. Mr. BURR. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded. The PRESIDING OFFICER (Mr. Gardner). Without objection, it is so ordered. ____________________ [Congressional Record Volume 161, Number 86 (Monday, June 1, 2015)] [Senate] [Page S3374] NATIONAL SECURITY LEGISLATION Mr. NELSON. Mr. President, we are here because the Senate is not functioning. We were here last night because the Senate is not functioning. Oh, it is functioning according to the rules, which say that you have to go through this arcane procedure of cloture on the motion to proceed and get 60 votes before you can ever get to the bill. Once you get to the bill, then you file another motion for cloture. The Senate rules say that there are 30 hours that have to run unless, as has been typical of Senate business, there is comity, there is understanding, and there is bipartisanship. But one Senator can withhold unanimous consent, and that has been done--so the 30 hours. Now, normally that may be standard procedure for the Senate, but it is getting in the way of our national security. At midnight last night the law that allows our intelligence community to track the emails and the phone calls of the terrorists evaporated. It won't be reenacted until sometime later this week because of the lack of unanimous consent. But this Senator from Florida is not putting it at the feet of just the one Senator who is withholding the unanimous consent. This Senator from Florida is saying that this should have been planned on over a week ago. This Senator is saying that we should have gone through the laborious procedures--not assuming that we were going to have the votes last night, not assuming that there was going to have comity and unanimous consent. This Senator thinks that we should have done this because of the urgency of national security. It is interesting that this Senator from Florida comes to the floor with mixed feelings. I voted for the Leahy bill, which is identical to the House bill, but I did that because we didn't have any other choice. When I had another choice, I voted for Senator Burr's--the chairman of the Senate Intelligence Committee--version, which was to continue existing law. I did so because I clearly thought that was in the interests of our national security. But since that is not the prevailing vote of the Senate, we need to get on with it and pass the House bill. Then I would urge the chairman of the Intelligence Committee, who is on the floor, that--down the line--the 6-month transitional period from the old law to the new law be extended with a greater transition time to 12 or 18 months. I would further urge the chairman of the Intelligence Committee that as to a major flaw in the bill passed by the House, which we will eventually pass this week, we add to it a requirement for a certain amount of time that the telephone companies would have to keep those telephone business records, so that if there is an urgency of national security going through the FISA Court, those records would be available to the intelligence community to trace the telephone calls of the terrorists. That would be my recommendation, and I see the chairman nodding in somewhat agreement. I hope we will get on. I hope better hearts and minds will prevail and that we can collapse this period of darkness where there is no law governing emails, phone calls, cell phones, et cetera, as we try to protect ourselves from the terrorists. I would hope that this would be collapsed into a much shorter time instead of having to wait until late Tuesday or Wednesday or Thursday of this week. I yield the floor. The PRESIDING OFFICER. The Senator from North Carolina. ____________________ [Congressional Record Volume 161, Number 86 (Monday, June 1, 2015)] [Senate] [Pages S3374-S3381] USA FREEDOM ACT OF 2015 The PRESIDING OFFICER. Under the previous order, the Senate will resume consideration of H.R. 2048, which the clerk will report. The senior assistant legislative clerk read as follows: A bill (H.R. 2048) to reform the authorities of the Federal Government to require the production of certain business records, conduct electronic surveillance, use pen registers and trap and trace devices, and use other forms of information gathering for foreign intelligence, counterterrorism, and criminal purposes, and for other purposes. Pending: McConnell/Burr amendment No. 1449, in the nature of a substitute. McConnell amendment No. 1450 (to amendment No. 1449), of a perfecting nature. McConnell amendment No. 1451 (to amendment No. 1450), relating to appointment of amicus curiae. McConnell/Burr amendment No. 1452 (to the language proposed to be stricken by amendment No. 1449), of a perfecting nature. McConnell amendment No. 1453 (to amendment No. 1452), to change the enactment date. The PRESIDING OFFICER. The Senator from North Carolina. Mr. BURR. Mr. President, I rise while my good friend from Florida is on the floor to say that I wish I could have a magic wand with which I could collapse this time. But as he knows, under Senate rules, one Member can demand for the full 30 hours, and we are in a process like that. My hope is that there will be accommodation as we go through this because I think most Members would like to resolve this. Let me say specifically to his two points that there is a substitute amendment that has the USA FREEDOM language with two additional pieces. Those two pieces are a 6-month notification to NSA by any telecom company that intends to change its retention program. As my good friend from Florida knows, in part, trying to move a bill is making sure we move a bill that can be passed and accepted by the House of Representatives. Mandatory retention right now does not meet that threshold. But I hope they will accept this requirement of notification of any change in their retention program, as well as a DNI certification at the end of whatever the transition period is. Now, there will be a first-degree and a second-degree amendment, in addition to that, made in order and germane. The first-degree amendment will be to extend the transition period to 12 months. So we would go from 6 months--not to 2 years, as my colleague from Florida and I would prefer, and not to 18 but to 12. I think that is a happy spot for us to agree upon. Then there will be a second-degree amendment to that to address some language that is in the bill that makes it mandatory on the part of the Justice Department that they get a panel of amicus individuals. What we have heard from the Justice Department and gotten a recommendation on is that that be voluntary on the part of the courts. We will second- degree that first-degree amendment with that language provided to us by the courts. I would like to tell my colleague that by tomorrow afternoon, I hope, we can have this complete and send it to the House, and by the time we go to bed tomorrow night this might all be back in place. I remind my colleagues that any law enforcement case that was in progress is not affected by the suspension of the roving or ``lone- wolf'' provisions. They are grandfathered in so those investigations can continue. But for the 48 hours we might be closed, it means they are going to delay the start of an investigation, if in fact they need those two tools. From the standpoint of the bulk data program, it means that is frozen. It can't be queried for the period of time, but it hasn't gone away. Immediately, as we reinstitute the authorities in this program, that additional data will be brought in and the process that NSA would go through to query the data [[Page S3375]] would, in fact, be available to the National Security Agency only--as is current law--once a FISA Court provides the authority for them to do it. I think there are a lot of misstatements that have been made on this floor. Let me just state for my colleagues what is collected. What is metadata? It is a telephone number, it is a date, it is the time the call was made, and it is the duration of the phone call. Now, I am not sure how we have invaded anybody's privacy by getting a telephone number that is deidentified. We don't know who it belongs to, and we would never know who it belongs to until it is turned over to law enforcement to investigate because it has now been connected to a known foreign terrorist's telephone number. Stop and think about this. The CFPB--a government agency--collects financial transactions on every American. There is nobody down here trying to eliminate the CFPB. I would love to eliminate the CFPB tomorrow. But there is no outrage over it, and they collect a ton more information that is not deidentified. It is identified. Every American has a discount card for their grocery store. You go in and you get a discount every time you use it. Your grocery store collects 20 times the amount of data the NSA does--all identified with you. There is a big difference between the NSA and your grocery store: We don't sell your data at the NSA; your grocery store does. Now, I am for outrage, but let's make it equal. Let's understand we are in a society where data is transferred automatically. The fact is, No. 1, this is a program authorized by law, overseen by the Congress-- House and Senate--and the executive branch at the White House. It is a program that has never had--never, never had--a privacy violation, not one, in the time it has been in place. Now, I am all for, if the American people say this is not a function we believe government should be in--and I think that is what we have heard--and we are transferring this data over to the telecom companies, where no longer are there going to be a limited number of people who can access that information. We are going to open it up to the telecom companies to search it in some way, shape or form. Whether they are trained or untrained or how exactly they are going to do it, it is going to delay the amount of time it will take us to connect a dot to another dot. Mr. NELSON. Will the Senator yield for a question? Mr. BURR. I will be happy to yield. Mr. NELSON. Mr. President, this is a good example of the chairman of the intel committee, a Republican, and this Senator from Florida, a Democrat and a former member of the intel committee, agreeing and being so frustrated--as was just exemplified by the Senator from North Carolina--that there is so much misunderstanding of what this legislation does. The fact is, as the chairman has just said, ``metadata''--a fancy term--is nothing more than business records of the telephone company. A telephone number is made to another telephone number on such and such a date, at such and such a time, for such and such duration. That is all. We don't know whom the call was from or to. It is when there is the suspicion, through other things that are authorized by court order, that the analyst can get in and open up as to what the content is in order to protect us. Would the Senator from North Carolina agree there is so much misunderstanding in the press, as has been reported, about how this is an invasion of privacy, as if the conversations were the ones that were being held by the National Security Agency? Would the Senator agree with that statement? Mr. BURR. I would agree exactly with that statement. The collection has nothing to do with the content of a call. To do that would take an investigation into an individual and an additional court process that would probably be pursued by the FBI, not the NSA, to look at the content. I think when the American people see this thing dissected, in reality, they will see that my telephone number without my name isn't really an intrusion, the time the call was made really isn't an intrusion, the duration of the call really isn't an intrusion, and now I know they are not collecting anything that was said, that there is no content in it and that this metadata base is only telephone numbers. There is a legitimate question the American people ask: Why did we create this program? Well, it was created in the Department of Defense. It was transferred over to the intelligence community. The purpose of it was in real time to be able to search or query a massive amount of data. A few weeks ago, we, the United States, went into Syria and we got a bad guy. And we got hard drives and we got telephones and we got a lot of SIM cards. Those telephone numbers now, hopefully--don't know but hopefully--we are testing them in the metadata base to see if those phones talked to anybody in the United States. Why? I think the American people want us to know if terrorists are talking to somebody in this country. I think they really do want us to know that. What we have tried to do since 9/11 is to structure something that lives within the law or a Presidential directive that gives us that head start in identifying who that individual is. But we only do it through telephone numbers, the date of the call, and the length of the call. We don't do it through listening to content. That is why I think it is healthy for us to have this debate. I think my good friend from Florida shares my frustration. We are changing a program that didn't have a problem and didn't need to be changed, and we are accepting a lower threshold of our ability to intercept that individual in the United States who might have the intention of carrying out some type of an attack. Now, I would only say this. I don't believe the threat level has dropped to a point where we can remove some of the tools. If anything, the threat level has gotten higher, and one would think we would be talking about an expansion of tools. But I accept the fact that this debate has gotten to a point where a bulk data storage capacity within the government is not going to be continued long term. I would say to my good friend, who I think agrees with me, that although I believe 24 months is a safer transition period, hopefully our friends in the House will see 12 months as a good agreement between the two bodies. That 12-month agreement I think would give me confidence knowing we have taken care of the technology needed for the telecoms to search in real time their numbers. Now, make no mistake, this will be a delay from where we currently are. I can't get into the classified nature of how long it takes us to query a database, given the way we do it, but there is no question this will lengthen the amount of time it takes us to connect the dots. Therefore, for something that might be in an operational mode, we may or may not hit that. That is a concern. But this is certainly something we can go back and look at as time goes on. Mr. NELSON. Mr. President, if the Senator will further yield. Mr. BURR. Absolutely. Mr. NELSON. Has the Senator heard many times from the press: Well, nobody has come forward and shown us one case in which the holding of these telephone business bulk records has paid off. Has the Senator heard that statement by the press? Mr. BURR. The Senator has heard that statement by the press and has heard it made by Members of this body. Mr. NELSON. Has the Senator come to the conclusion that with regard to the holding of that data and the many cases that are classified, that that data has protected this country from terrorists by virtue of just the example he gave of terrorist records apprehended in the raid in Syria a couple of weeks ago and that those telephone numbers may well be like mining gold in finding other terrorists who want to hit us? Mr. BURR. The Senator hits on a great point, and let me state it this way. Would any Member of the Intelligence Committee be on the floor battling to keep this program, if, in fact, in our oversight capacity, we had looked at a program that was absolutely worthless? Would we expend any capital to do that? The answer is, no, we wouldn't. We are down here battling on the floor, those of us either on the committee or who have been on the committee since 9/11, because we have seen the impact of this program. We know what it has enabled us to do and we [[Page S3376]] know what happens when we get a trove of technology in our hands that gives us the ability to see whether it was tied to somebody--whether we knew about them or we didn't. The fact is, when you have groups such as ISIL today, that are saying on social media: Don't come to Syria, stay in the United States, stay in Europe, go buy a gun, here are 100 law enforcement officers, here are 100 military folks, that is how you can carry out the jihad, it makes the use of the tool we are talking about even more important because no longer do we get to look at no-fly lists, no longer do we get to look at individuals who have traveled or who intend to travel to Syria. It is individuals who grew up in neighborhoods that we never worried about. And the only way we will be able to find out about them is if we connect the conversation they have had or just the fact that a conversation took place, and then law enforcement can begin to peel the onion back with the proper authorities--the proper court order--to begin to look at whether this is a person we need to worry about. The Senator from Florida is 100 percent correct that this is invaluable to the overall defense of this country. Mr. NELSON. Mr. President, if the Senator will further yield, and I will conclude with this. The American people need to understand there is so much agreement behind the closed doors on the Intelligence Committee, as they are invested with the oversight of what is going on in order to protect our blessed country. My plea now is we would get to the point that as the chairman has suggested, even by waiting until tomorrow, we can collapse this time and get on to passing this by sending down some minor modifications to the House that they can accept, then get it to the President so this important program that tries to protect us from terrorists can continue. I thank the Senator for yielding. Mr. BURR. I thank my good friend from Florida for his willingness to come to the floor and talk facts. I see my good friend from Arizona here. Before I yield, let me just restate what the Senator from Florida asked me, which was, geez, we need a longer transition period and we need something addressed on the data that is held. I say for my colleagues that there will be three votes at some point. One will be on a substitute amendment. It has the exact same language as the USA FREEDOM bill. It makes two changes to the USA FREEDOM bill. It has a requirement that the telecoms notify the government 6 months in advance of any change in the retention program for their data, which I think is very reasonable. The second would be that it requires the Director of National Intelligence to certify, on whatever the transition date is, that the software that needs to be provided to the telecoms has been provided so that search can go through. In addition to that, there will be two other amendments. The first will deal with expanding the transition period from the current 6 months in the USA FREEDOM bill to 12 months. Again, I would have preferred 24 months. We have settled on 12 months. The last thing is that it would change the current amicus language in the bill to reflect something provided to us by the courts. It was the court's recommendation that we change it. This would be easier to fit within a program that has a time sensitivity to it. So as we go through the debate today, as we go through tomorrow, hopefully we will have three amendments that pass, and we can report this bill out shortly after lunch tomorrow if everything works well. With that, I yield the floor. The PRESIDING OFFICER. The Senator from Arizona. Mr. McCAIN. Mr. President, I ask unanimous consent to address the Senate as in morning business. The PRESIDING OFFICER. Without objection, it is so ordered. [...] The PRESIDING OFFICER (Mr. Cotton). The Senator from Maine. Mr. KING. Mr. President, I rise to address the bill before us, the USA FREEDOM Act, and its predecessor, the PATRIOT Act. Before talking about the specifics of those bills, I will try to address the historical context of what it is we are wrestling with and why it is so hard. What we are really trying to do in this body this week is to balance two critical constitutional provisions. The first is in the preamble, which is to provide for the common defense and ensure domestic tranquility. That is a fundamental purpose of this government. It is a fundamental purpose of any government--to provide for the common defense and ensure domestic tranquility. That is national security, and it is in the very core preamble to the Constitution of the United States. Of course, the other provisions are found in the Bill of Rights, particularly in the Fourth Amendment, which talks about the rights of the people to be secure in their persons and papers from unreasonable searches and seizures. ``Unreasonable'' is a key word. The people who drafted our Constitution were geniuses and every word counts. The word was ``unreasonable.'' So there is no absolute right to privacy, just as there is no absolute right to national security. We have to try to find the right balance, and that is what we have to do year in and year out, decade in and decade out, in relation to developments in technology and developments in terms of the threats which we face. It is a calibration that we have to continue to try to make. Now, I have been concerned, as a member of the Intelligence Committee, about the retention of large quantities of telephone data by the government. I think the program under which that data has been analyzed is important, and I will talk about that in a few minutes. I share the concern of many in this body who feel that simply having and retaining all of that information in government computers, even though it was hedged about with various protections and even though there were requirements for how it was to be accessed--and the level of attention to the detail of that access was important--and there is no evidence that it had ever been abused, was a danger to the liberty of our country. I feel the same as many of the Members of this body who have expressed that concern. Therefore, the USA FREEDOM Act, which we have before us now, proposes to move to leave the data with the phone companies. Instead of the government collecting and having it in the government's hands, the data will be in the phone companies. If it is necessary to access that information for national security purposes, the government will have to go through the process of going through the Justice Department and the court in order to get permission to access that data. Why shouldn't the government simply hold it? I am a subscriber to Lord Acton's famous maxim that ``power tends to corrupt, and absolute power corrupts absolutely.'' While the current administration or the prior administration may have no inclination to misuse that data, we have no idea what may come in the future, what pressures there may be, what political pressures there may be. Therefore, it struck me as sensible to get it out of government's hands. The trouble I have had with the USA FREEDOM Act is that I felt it went too far in the other direction because there was no requirement in the bill, as it passed the House, that the phone companies retain and hold the data for any particular period of time. They now hold it, as a matter of business practice, for 18 months to 2 years, which is all that is necessary in order to have the data available for a national security search if necessary. The problem is that there is no requirement that they maintain that level of retention. In fact, in an open hearing, one of the vice presidents of one of the carriers said categorically: We will not accept a limitation on how long we have to hold the data. I think that is a glaring weakness in the USA FREEDOM Act, and, in fact, it led me to vote against the consideration of the motion to proceed when it came up last week. Today or tomorrow--whenever the timing works out--there will be a series of amendments proposed by the Senator from North Carolina, the chair of the Intelligence Committee, designed to deal with several of these technical but very important aspects of this program. One of those amendments would require the carriers--if they decide to hold the data for a shorter period of time--to notify the government, notify the Congress, and we could then make a decision as to whether we thought that some additional required period of retention would be necessary in order to adequately protect our national security. Another amendment that I understand is going to be proposed is that the transition period from the current program to the private carriers holding the data will be extended from 6 months to 1 year, simply because this is a major, Herculean technical task to develop the software to be sure that this information will be available for national security purposes on a timely basis. Now, the final question, and the one we have been debating and discussing here is this: Is it an important program? Is it worth maintaining? There has been a lot of argument that if you can't point to a specific plot that was specifically foiled by this narrow provision, then we don't need it at all. I don't buy that. It is part of our national security toolkit. It is interesting to talk about the history of this provision. It came into being shortly after September 11, because a gap in our security analysis ability was identified at that time, and that was that we could not track phone connections--not content, and I will talk about that in a minute--between the people who were preparing for the September 11 attack. For that reason, the section 215 program was invented. I want to stop for just a moment and make clear to the American people that this program does not collect or listen to or otherwise have anything to do with the content of phone calls. As I talked to people in Maine and they approached me about this, they said: We don't want the government listening to all of our phone calls. The answer is: They don't. This program does not convey and has not conveyed any such authority. We are talking about a much more narrow ability to determine whether a particular phone number called another phone number, the duration and date of that phone call, and that is it. An example of its usefulness was at the Boston Marathon bombing. The two brothers perpetrated that horrendous attack in Boston in April of 2013. This program allowed the authorities to check their phone numbers to see if they were in touch with other people in the country so they could determine [[Page S3380]] whether this was a nationwide plot or whether it was simply these two guys in Boston. That, I will submit, is an important and--some would say--critical piece of information. It turned out that they were acting on their own, but had there been connections with other similarly inclined people in the country at that time, that would have been important information for us to know, and that is the way this program is used. Is it absolutely critical and indispensable in solving these cases? I don't think anybody can argue that that is the case. Is it important and useful as a part of the national security toolkit? Yes, particularly when the invasion of privacy, if you will, is so limited and really so narrowly defined. I liken it to a notebook that a police officer carries at the scene of a crime. A detective goes to the scene of a crime, takes out his notebook, and writes some notes. If we said that detectives can no longer carry notebooks, would it eliminate law enforcement's ability to solve crimes? No, but would it limit a tool that was helpful to them in solving that crime or another crime? The answer, I think, would be yes. We should not take a tool away that is useful and important unless there is some compelling argument on the other side. Since we are not talking about the content of the phone conversations--we are simply talking about which number called which other number, and it can only be accessed through a process that involves the Justice Department and then permission from the court--I think it is a program that is worthy of protection and useful to this country, and I think it is particularly important now. It is ironic that we are talking about, in effect, unilaterally disarming to this extent at a time when the threat to this country has never been greater and the nature of the threat is changing. September 11 is what I would call terrorism 1.0, a plot that was hatched abroad. The people who perpetrated it were smuggled into the country in various ways. They had a specific target and a specific plot that they were working on. That is terrorism 1.0, September 11. Terrorism 2.0 is a plot that is hatched abroad but communicated directly to people in the United States who are part of the jihadist group. But now we are on to terrorism 3.0, which is ISIS sending out what amounts to a terrorist APB to no particular person but to anyone in this country who has been radicalized by themselves or by the Internet. There is no direct connection between them and ISIS. It might be a Facebook post. That person then takes up arms and tries to kill Americans, and that is what their intent is. That is the hardest situation for us to counteract, and that is a situation where this ability to track numbers calling numbers can be extremely useful. In fact, it might be the only useful tool because we are not going to have the kind of specific plotting that we have seen in the past. This is the most dangerous threat that I think we face today. To throw aside a protection or a safeguard that I believe passes constitutional and legal muster and goes the extra mile to protect the privacy rights of Americans by getting this data out of the hands of the government and that is worthy of the support and the active work in this Chamber to find that balance--the balance between the imperative, the most solemn responsibility we have in this body, which is to provide for the common defense and ensure domestic tranquility, and to protect the safety and security of the people of this country in light of the constitutional limitations in the Bill of Rights that protect our individual liberties that make us who we are--we can do both things. There is never going to be a final answer to this question. But what we have to do is just what we are doing this week, and that is to assess the threats, assess the technology developments, and try to find the right calibration and the right balance that will allow us to meet that most solemn of our responsibilities. I look forward, hopefully, to the consideration of amendments later either today or tomorrow and look forward to what I hope will be a quick passage of this legislation in the next 24 to 48 hours so we can look our constituents and the people of this country in the eyes and say: We took the responsibility to protect your security seriously, and we also took seriously your rights, your liberty, and your understanding that the government is not going to impinge unreasonably in any way in violation of the principles of this Constitution. I yield the floor. The PRESIDING OFFICER. The Senator from North Carolina. Mr. BURR. Mr. President, I thank my good friend, the Senator from Maine, a committed member of the Committee on Intelligence, and one who has been vitally involved in the oversight of section 215. I think what has been left out of the debate is that 15 Members of the U.S. Senate have actively carried out oversight. This is probably one of the most looked at programs that exists within the jurisdiction of the Intelligence Committee. There are a couple more that probably get more constant attention, but this is not a program that is used that frequently. I think that is the key point. I wish to reiterate some of the issues Senator King brought up. We are not listening to people's phone calls. There is no content collected. This program expired last night at midnight. That means the database cannot be queried, regardless of if we find a terrorist telephone number. I think it is important to remind my colleagues and the American people that this is all triggered by a nonterrorist number outside of the United States. Now, in the case of the Tsarnaev brothers, we had the telephone number outside the country, and we wanted to see whether the connection had been made, so there was direction in that case. But this is triggered by not just going through the database and looking at who Americans are calling and trying to figure something out, it is triggered by a known foreign terrorist's telephone number, and we searched to see whom they may have contacted in the United States. Now, the FISA Court only allows this data to be queried when there is a reasonable articulable suspicion--or RAS, as we call it--based on specific facts; that the basis for the query is associated with a foreign terrorist or terrorist organization. If the NSA can't make that case to the courts, that RAS is never authorized to go forward. The NSA is not searching through records to see whom ordinary Americans are calling; they are only looking for the terrorist links based upon the connection to a phone number known to be a terrorist phone number. Now, my good friend, the Senator from Maine, spoke about the Boston bombings. Let me go back to some comments the Director of the FBI, Director Mueller, made earlier last year. He testified in the House that had the program been in place before September 11, 2001, those attacks might have been derailed. Why? Well, according to the Director of the FBI, before 9/11, the intelligence community lost track of al- Mihdhar. Al-Mihdhar was one of the two who lived in San Diego, and he was tied to a terrorist group in Yemen. We lost track of al-Mihdhar, but we knew the terrorist organization in Yemen. So if we would have had this program in place, we could have targeted the telephone numbers out of the cell in Yemen to see if they were contacting anybody in the United States--and they were contacting al-Mihdhar--and we could have put the connection together and found al-Mihdhar after we lost him in flight to the United States. I think Director Mueller said we saw on 9/11 what happens when the right information is not put together. If this program had been in place, then it could have provided the necessary link between the safe house in Yemen and al-Mihdhar in San Diego. For those who claim this program served no purpose prior to 9/11, here is the Director of the FBI saying it would have. Then we have the Boston Marathon bombing, and the program told us there was no terrorist link. Then we come to the 2009 New York City subway bombing plot. In early September 2009, while monitoring the activities of an Al Qaeda terrorist group in Pakistan, NSA noted contact from an individual in the United States who the FBI subsequently identified as Colorado-based Najibullah Zazi. Section 215 provided important lead information that helped thwart this plot. I wish to say this one more time to my colleagues: This program works. It has worked. It has stopped attacks because we have been able to identify an [[Page S3381]] individual before they carried out the attack. Now, the threshold for my colleagues who say this program has not served any useful purpose, meaning we have to have an attack to be able to prove we thwarted an attack--that is not why we have this program in place. We are trying to get ahead of the terrorist act. In the case of the subway bombings in New York, we did that in 2009. There was a Chicago terrorist investigation in 2009. David Coleman Headley, a Chicago businessman and dual U.S. and Pakistan citizen, was arrested by the FBI as he tried to depart Chicago O'Hare Airport to go to Europe. At the time of his arrest, Headley and his colleagues, at the behest of Al Qaeda, were plotting to attack the Danish newspaper that published the unflattering cartoons of Prophet Mohammed. Section 215 metadata analysis was used along with other FBI authorities to investigate Headley's overseas associates and their involvement in Headley's activities. I am not sure how it gets any clearer than this. We have an individual who is radicalized, who intends to carry out an act, who has overseas connections that we never would have understood without section 215. I think that as my good friend from Maine knows, when we connect one dot, typically it leads to another dot and that leads to another dot. To say to law enforcement, to say to our intelligence community that we are not going to give you the tools to connect these dots is to basically stand up in front of the American people and say that we are supposed to keep you safe, but we are not going to do that. So I thank my good friend, the Senator from Maine, for his support. I say to my colleagues, I hope we are going to be able to reinstitute this program shortly after lunch tomorrow. Hopefully, we will be able to do it with three amendment votes and a final passage vote. One will be a substitute to the full bill. It has all the USA FREEDOM Act language, with two changes. It would require the telecom companies to provide 6 months' notification of any change in the retention program of their company. That language was the suggestion of the Senator from Maine, and it works extremely well. The second piece of the substitute amendment will deal with the certification of the Director of National Intelligence that we have made the technological changes necessary for the telecom companies to actually query that data they are holding. There will be two additional amendments. The first one will be to change the transition period from 6 months to 12 months, and I think the Senator from Maine would agree with me that--I would like to see it longer--anything longer than 6 months is beneficial as we talk about the safety and security of the American people. The last amendment is the change in the amicus language or the friend of the court language. I will get into that in a little while. The current bill says the courts shall--``shall'' means they will do it. The administrator of the court has provided us with language that they think will allow the court the flexibility, when they need a friend of the court, to solicit a friend of the court in FISA Court but not require them, with the word ``shall,'' to always have a friend of the court. Again, I think, as my good friend from Maine knows, the process we go through in section 215 through the FISA Court in many cases is an accelerated process. Any delay can defeat the purpose of what we are doing; that is, trying to be in front of an attack versus in the back of an attack. I say one last time for my colleagues, NSA, under the metadata program, collects a few things: They collect the telephone number, they collect a date, they collect the duration of time that the call took place. They don't get content. They don't get the person's name. They have no idea whose number it is. Were they to tie a domestic number to a foreign terrorist number, that then goes directly to the FBI because they say to the Bureau: We have a suspicious American because they have communicated with a terrorist, at which time it is out of the 215 program for the purposes of investigation of the individual. If there was ever a need to find out whose telephone number it was or if there was a need to see content, that would be sought by the FBI under an investigation through the normal court processes that are not part of the 215 program. Section 215 is limited to a telephone number, with no identifier for whose number it is, the collection of the date, and the duration of the call. I think the Senator from Maine would agree with me. I would just as soon see the program stay at NSA, but that decision is a fait accompli. It is going to transition out. We would just like to make sure we have enough time so this can seamlessly happen versus an artificial date of 6 months and not knowing whether it can happen. I thank the Senator from Maine. Mr. President, I yield the floor. ____________________ [Congressional Record Volume 161, Number 86 (Monday, June 1, 2015)] [Senate] [Pages S3385-S3399] USA FREEDOM ACT OF 2015--Continued The PRESIDING OFFICER. The majority whip. Mr. CORNYN. Mr. President, I would ask the Senate's indulgence. I actually have three topics that I need to discuss here today. One topic involves the historic flooding that we have experienced in Texas and the consequences of that, also the President's signing the Justice for Victims of Trafficking Act, and lastly, the bill that is before us on the floor today, which is another tool in the toolbox of the national security apparatus in this country to help keep Americans safe. [...] Mr. President, I want to speak about the effort to reauthorize the critical provisions of the PATRIOT Act that expired at midnight last night. As others have observed, there has been a lot of misleading rhetoric and downright demagoguery about this topic. The issue is pretty straightforward and simple. This is about how we use all of the tools available to us to keep our Nation safe amidst pervasive and growing threats, while at the same time preserving our essential liberties. This is not about trading one for the other. This is about how we achieve the correct balance. Despite our efforts last night, this Chamber was unable to come up with even a short-term solution to ensure that the key provisions-- including section 215--of the PATRIOT Act did not expire. We know that any single Senator could object to this extension that would allow us to continue our work without allowing this program to expire. Unfortunately, three of our colleagues chose to object to the commonsense unanimous consent request to allow those temporary extensions while the Senate and the House continued their work. It is important to remember that these provisions of the law were created after September 11 and were designed to equip those investigating terrorism with the basic tools used by ordinary law enforcement. Why in the world would we want to deny law enforcement the investigatory tools they need to keep America safe from terrorist attacks? That is what section 215 did and does and will do again once we resurrect it. Before it expired at midnight, these provisions helped our intelligence and law enforcement officials keep the country safe. As I think about this, and in discussing it with Chairman Burr and others who are very concerned about the safety and security of our country and who are determined to protect the country by making sure that our counterterrorism efforts maintain every available legal tool consistent with our civil liberties, I think what has happened is we have fallen victim again to the pre-9/11 mentality of considering counterterrorism efforts to be a law enforcement matter alone. Of course, the Fourth Amendment to the Constitution, which prohibits unreasonable searches and seizures, was designed primarily in a criminal law enforcement context to make sure that American citizens' privacy was protected. But what many of those who object to using these provisions fail to acknowledge is that our intelligence community has to be able to investigate and detect threats to the American homeland before they occur. After 9/11, where almost 3,000 people lost their lives, there was plenty of time to do a criminal investigation and law enforcement action, but we had failed in our most essential obligation, which is to detect these threats ahead of time and to prevent them from ever occurring. Importantly, as we discussed the week before last, section 215 in particular included vigorous oversight measures. It is important for people to understand that the executive branch--in other words, the White House--and the legislative branch, which is both Houses of Congress, and the courts are all very much engaged in the vigorous oversight of these tools used to protect the American people. By taking this tool away from those investigating the constant threat stream to American citizens, we have unfortunately given terrorists an advantage right here in our own backyard. As we have reiterated over and over that these threats to our homeland are real and they are growing. Why in the world would we take time to gamble with our national security? Secretary of Homeland Security Jeh Johnson said that our country has entered ``a new phase in the global terrorism threat'' as the so-called Islamic State or ISIL continues to encourage people right here at home to take up the cause of global jihad. Perhaps, to me, the best and most concrete examples are events such as what happened in Garland, TX, just a few weeks ago, when two people who had been communicating overseas with representatives of the Islamic State were incited to take up arms against their fellow citizens here in the United States of America. Why in the world would we want to deny our law enforcement and intelligence authorities lawful tools available to them to be able to identify people plotting threats against the homeland and to prevent those threats from actually being carried out? Thank goodness, due to the vigilance of local police and other law enforcement authorities, what could have been a bloodbath in Garland, TX, was averted. Why in the world would we want to take away a tool available to our intelligence and law enforcement authorities and raise the risk that an attack here in the homeland be successful rather than thwarted? This is not just something that happened in Garland. A few weeks ago, FBI Director James Comey described the widespread nature of the threats--so widespread, in fact, that he said all 56 field divisions of the FBI have opened inquiries regarding suspected cases of homegrown terrorism. So let me repeat. Every FBI field division in the country is currently investigating at least one suspected case of homegrown terrorism. As my colleagues must know, we do not have to go very far to find other examples like the one I mentioned that [[Page S3387]] manifested itself in Garland. We read about examples regularly. Just 2 weeks ago, also in my home State of Texas, the FBI arrested a man who had reportedly pledged his allegiance to the leader of ISIL. According to the FBI, he is but one of hundreds of ISIL sympathizers here in the United States, which ought to alarm all of us, ought to be a call to vigilance and to make sure we maintain every available legal tool consistent with civil liberties to protect our citizens. So I think it is obvious that section 215 and the two noncontroversial national security provisions at issue should not have been allowed to expire, but unfortunately they were, and now it is our responsibility to fill that gap by passing this legislation and taking up the important amendments, which will actually strengthen the House bill. We know our country and our people are the target of terrorists again, and we need to do everything we can to stop them. Well, my initial preference was to extend these portions of the PATRIOT Act for a short period of time so we could begin the debate and discuss the next best move to address these issues without giving the terrorist any advantage by handicapping the men and women committed to protecting our homeland. At a time when the threats to our country are increasing, we should be enabling our intelligence officials and law enforcement with the tools they need and not stripping them of the authorities they require in order to protect us. Clearly a full extension of section 215, which was easily extended in 2011, is not possible at this time. But the last thing any one of us should do is allow this program to continue to remain dark. I encourage our colleagues to join me in quickly working together to reauthorize these critical provisions. Every day we allow these authorities to remain expired, our intelligence officials are forced to act with one hand tied behind their back. We plan to make minor improvements to the House-passed bill, and I think they make a lot of sense, things such as actually getting a certification by the Director of National Intelligence and this plan to let the telecoms continue to hold this information and then, after a court order is provided, allow that search. But certainly we should want to know whether this actually will work in a way that is consistent with our national security. So, essentially, the House provisions are the base bill here, but I think Chairman Burr and others on the Intelligence Committee have recommended some very positive, commonsense improvements which will make this bill better. Working together, the Senate and the House, I think we can make sure these necessary authorities are restored. As elected representatives of the American people, it is our duty to make sure the balance between physical safety and civil liberties is struck. We will do that again. We can do that responsibly by extending these authorities and coming together to find a long-term solution that keeps these invaluable tools in place. I yield the floor. The PRESIDING OFFICER. The Senator from North Carolina. Mr. BURR. Mr. President, I thank the majority whip for his comments and for his support of the extension of 215 and for what I think are some very reasonable changes to it. Some of what the Senator from Texas said took me back to some of the hearings I know the Presiding Officer was in where intelligence officials were asked about this transition. They were asked very simply ``Will it work?'' and the answer they gave was ``I think so.'' To an institution such as Congress, where our No. 1 responsibility is the defense of the country, ``I think so'' is not the answer on which you base the change of a program. Therefore, that is why there is a debate in Washington right now--now in the Senate, soon to be with the House--as to whether 6 months is sufficient time to be able to address it. I know the Presiding Officer of the Senate heard individuals from the Justice Department say: Well, if this does not work, we will get back to you on changes. One of the reasons this tool is in place is because we identified shortcomings in our capability to identify terrorists post-9/11. Let me revert back--and I hate to go to history, but on 9/11, as the majority whip said, there was the loss of almost 3,000 lives, American and international lives. Washington, New York--could have been this building had some brave passengers not found out what they were up to and stopped them. I remember those days and weeks and months right after 9/11 as a member of the House Intelligence Committee. There are not many of us left who were here. I think only 40 percent of the Senate was here on 9/11. What were the questions that went through our minds? Who did this? Why did they do it? How wide was the plan to attack us? We had to start from a dead stop and try to figure out the answer to all of those questions. It is amazing that in a very short period of time we were able to construct tools that made sure that America would never be faced with questions such as those again and that if we were, it would be a very short period of time, not weeks and months and in some cases years to connect the dots and try to figure out how to keep this from happening again. Section 215 was one of the tools that was created as a result of 9/11. I revert back to the Director of the FBI, who said last year that had section 215 been in place prior to September 11, the likelihood is that we could have connected the dots between a known terrorist we lost track of by the name of Al Mihdhar, who traveled from Kuala Lumpur to San Diego before we had a no-fly list, who communicated via cell phone with a terrorist cell operating out of Yemen--we had the numbers out of Yemen; we just did not have the number of Al Mihdhar. Had 215 been in place, we could have tested the terrorist cell phones against the database we had. The FBI Director's own words: We probably would have stopped that component of 9/11. Al Mihdhar and his roommate, I believe, were the two who flew the plane into the Pentagon. Would it have captured everybody? Possibly not. Would identifying two individuals incorporated in a cell inside the United States have allowed the FBI to work through traditional means of investigation and find the rest of that cell, those planes directed--two planes toward New York and that fourth plane directed to the Capitol? Maybe. Maybe it would have. Maybe when are you trying to stop something, it is good, but when you are talking about eliminating something, ``I think we can do it'' does not meet my test. That is why one of the amendments I will ask my colleagues to vote on is an amendment to make the transition period not 6 months but 12 months. It is to make sure we have allowed the NSA a sufficient amount of time to technologically prepare the telephone companies to be able to search their data in a timeframe that we need to get in front of an attack versus in back of an attack. It is very simple: If it happens in front, it is intelligence. If it happens in back, it is an investigation. It is a legal investigation. It has already happened. We are trying to make sure we stay in front. I would like to take a moment to go over some myths about the PATRIOT Act. Here is myth No. 9: 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. Fact: President Obama's review panel never opined on the legality of the metadata program. It said the question of the program's legality under the Fourth Amendment ``is not before us,'' and it is not the review panel's job to resolve these questions of whether the program was statutorily authorized. Myth. Fact. Myth No. 8: The national security letter is similar to what we fought the Revolution over. I am not a lawyer, but given what we have been faced with since September 11, I think it would have been easier to go to law school than to try to figure out some of these things. The national security letter, despite its ominous-sounding name, is nothing more than an administrative subpoena. It has the authority equivalent to the authority postal inspectors employ to investigate mail fraud or IRS agents use to investigate tax fraud. Postal inspectors and [[Page S3388]] IRS agents do not need judicial authorization to issue an administrative subpoena. Our Framers would likely be embarrassed if the post office had more authority to investigate postal fraud than the Federal Government had to protect us from terrorism. Before 215, the FBI would issue a national security letter that gave them expansive investigatory tools. Now, they could not do it in a timely fashion, but eventually they could not only get to a search of telephone numbers, they could search financial records, and they could search anything about an individual. Let me remind my colleagues that what we are talking about in section 215, the metadata program--we have never identified an American. All we have is a pool of telephone numbers with no person's name attached to them, and we collect the date the call was made, the duration of the call, and the telephone number that it talked to. The only time that information can be queried is when we have a foreign telephone number that we know to be the telephone number of a terrorist. Where we were before was much more expansive with a national security letter, but it was not timely, and if you want to be in front of an act, you have to be timely. That is how 215 was created. Myth No. 7: NSA collects your address book, buddy lists, call records, et cetera, and then they put them 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. Myth. Here is fact: SNAC is the National Security Agency Systems and Network Attack Center, which, among other things, publishes a configuration guide to assist entities in protecting their networks from intrusion. Its work could not be further from the allegation made. Myth No. 6: Executive Order 12333 has no congressional oversight. Boy, that is a strange one to the Intelligence Committee, which spends a lot of time on oversight of 12333. It is simply wrong. S. Res. 400 of the 94th Congress created the Select Committee on Intelligence. CRS--the Congressional Research Service--points out that the President has a statutory responsibility to ``ensure that the intelligence committees are kept fully and currently informed of the intelligence activities of the United States.'' The committee routinely receives reports on such matters, including reports on NSA activities under Executive Order 12333. It is a part of the committee's mandate that we do successful oversight, and it is a requirement of any President that they make sure their administration fully cooperates and reports to both the Senate select committee and the House select committee. Myth No. 5: The President started this program by himself. He did not tell us about it. Maybe one or two people knew about it. Again, that is factually incorrect. Every Senator was put on notice of the program's existence in 2010 and again in 2011. My gosh, it has been a national--international debate over the last several weeks. Myth No. 4: The PATRIOT Act goes from probable cause, which is what the Constitution had, to articulable suspicion, down to relevance. This statement conflates issues. Articulable suspicion and relevance are not two different standards for the same thing. They both must be present--both must be present--in the metadata program. FISA, as amended by section 215 of the PATRIOT Act, allows the government to seek a court order requiring the production of ``tangible things'' upon a statement--articulation--of facts showing ``there are reasonable grounds to believe'' those things are ``relevant'' to an authorized investigation. This allows the government to seek call records from telecommunications companies. Then, when those records have been compiled into a database, that database can only be queried upon a reasonable articulable suspicion that the number to be queried is associated with a particular foreign terrorist organization. We keep getting back to this, and of all the conversations that are had on this floor about intrusion into privacy--one, let me state the obvious fact again. It is hard for me to believe we have invaded anyone's privacy when we have done nothing but grab a telephone number and we have no earthly idea to whom it belongs. And the only reason we would be concerned with that telephone number is if we pull a foreign terrorist telephone number and we search it and find somebody in America they have talked to. That is it. That is the entirety of the program, and it is all predicated on the fact that we don't search any--we don't query any data unless we have a foreign terrorist telephone number known, and that is what triggers the program to begin to meet the threshold of the court for a query of the information. Myth No. 3: The FISA Court has somewhat become a rubberstamp for the government. First, if that characterization is correct, then the Federal criminal wiretap process is even more of a rubberstamp for the government. The approval rate for title III criminal wiretaps is higher than the approval rate for FISA applications. Second, this claim does a disservice to the practice of the FISA Court, where there is often a back-and-forth between the government as applicant and the court. Again, this is not unlike the criminal wiretap process. The government often proposes to make an application before making its final application. The chief judge of the FISA Court has said it returns or demands modifications on these proposed applications 25 percent of the time. In this respect, the high approval rate of FISA applications does not ``reflect the fact that many applications are altered prior to final submission or even withheld from final submission entirely, often after an indication that a judge would not approve them'' because it had not met the threshold. Third, the government has every interest in self-selecting only meritorious applications to bring to the court. The government is a repeat player at the FISA Court. It has a well-earned reputation as a broker of candor before the court, and there would be significant reputational costs to bringing nonmeritorious applications to the court. Let me sort of put in layman's terms what that is. The current wiretap standard--equivalent to going to a FISA Court--approves at a 25-percent higher rate than the FISA Court. And the FISA Court is the court that expedites time-sensitive investigations and time-sensitive intelligence requests. Myth No. 2: The problem in the FISA Court is that when they take you to this court, it is secret. True, it is secret, but so are any other judicial hearings where classified information is before to the court, and that court shuts down and goes into a nonpublic setting, just the way this institution does. We will do it as we get into the appropriations bills, and when we get into classified, sensitive appropriations, these doors will shut, the Gallery will be cleared, the TVs will be cut off, and we will do our business on secret, classified information. It is only realistic to believe that the court--especially the court that hears the most sensitive cases--would only hear those cases in secret because the cases cannot be presented in public. The last, No. 1: The bulk collection of all Americans' phone records all of the time is a direct violation of the Fourth Amendment. The Fourth Amendment protects against unreasonable searches. A search occurs when the government intrudes upon ``a reasonable expectation of privacy.'' The Supreme Court has noted ``that a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.'' The Court has also squarely determined that a person does not have a Fourth Amendment-protected privacy interest in the numbers he dialed on his phone. Telephone companies keep call records for billing purposes. When the government obtains those records from a third-party telecommunications provider, a search has not taken place for constitutional purposes, and therefore a warrant is not required. This program has been approved over 40 times by the FISA Court to exist. The program was instituted by the executive branch. The executive branch could end the program today. Why don't they? They don't because this program is effective. This program has thwarted attacks here and abroad. [[Page S3389]] I know individuals have come on the floor and they have said: There is absolutely nothing that shows that section 215 has contributed to the safety of America. I can only say that they are factually challenged in that. You would not have the majority of the Intelligence Committee on floor lobbying for this program to continue in its current form. Now we know that is not going to happen, so we are trying to reach a modification of the current language so, in fact, we have a greater comfort level that the intelligence community can be in front of attacks and not behind them. I remind my colleagues that hopefully tomorrow afternoon we will be at a point where we are ready to vote on amendments. There will be three amendments to the USA FREEDOM Act. The first one will be a full substitute. It will take all the identical language of USA FREEDOM with two changes: One, it will require the telephone companies to notify the U.S. Government 6 months in advance of any change they make in their retention policy of the data, the telephone numbers. I think it is a very reasonable request that they give us 6 months' notice if, in fact, they are going to reduce the amount of time they keep that data. The second piece is that we direct the Director of National Intelligence to certify at the end of the transition period that we can successfully make the transition and that the technology is in place at the telephone companies, provided by the government, that they can query those numbers--in other words, that they can search it and take a foreign terrorist telephone number and figure out whether they talked to an American. In addition to that substitute amendment, there will be two additional amendments. The first one will take the transition period that is currently 6 months in the bill and will simply make it 12 months. If I had my preference, it would be 24 months, but I think this is a fair compromise. And my hope is that, matched with the certification of the DNI, we will be prepared to transfer this data but to continue the program in a seamless fashion, although it will add some time--yet to be determined--to how quickly we can make the identification of any connection of dots. The second amendment very specifically will be addressing the amicus provision in the USA FREEDOM Act. I am going to talk about amicus a little later, but let me just say for my colleagues that in the USA FREEDOM Act, in numerous places, it says that the courts shall provide a friend of the court. I am not a lawyer, but my understanding from those who are lawyers is that ``shall'' is an indication of ``you must.'' The courts have told us that will be cumbersome and difficult and delay the ability of this process to move forward. So the courts have provided for us language that changes it to where the FISA Court can access a friend of the court when they feel it is necessary but not be required to have a friend of the court regardless of what their determination is. We will talk about that over the next just shy of a day, but it is my hope to all the Members that all three of these amendments can be dealt with before 24 hours is up and that passage of the USA FREEDOM Act as amended by the Senate can be passed to the House for quick action by the U.S. House and hopefully by the end of business tomorrow can be signed by the President and these very important programs can be back in place. I would make one last note--that I am sure Americans find it troubling that this program is going to be suspended for roughly 48 hours. In the case of investigations that are currently underway, they are grandfathered and the ``lone wolf'' and roving wiretap can still be used, but new investigations have to wait for the reauthorization of this bill. From the standpoint of the metadata program, last night at 8 o'clock it could no longer be queried, and it won't be able to be queried until this is reauthorized. There is time sensitivity on us passing this, just as there is time sensitivity in getting the language of this bill correct so that, in fact, we can query it, we can connect the dots, and we can get in front of an attack prior to the attack happening. I urge my colleagues in the Senate to spend the next 24 hours understanding what is in the USA FREEDOM Act. Look at the amendments. They are reasonable. They don't blow up this piece of legislation. They provide us the assurance that we can make this transition and that after we make the transition, the program will still work. I urge my colleagues to support all three amendments. I yield the floor. I suggest the absence of a quorum. The PRESIDING OFFICER (Mrs. Ernst). The clerk will call the roll. The legislative clerk proceeded to call the roll. Mr. McCONNELL. Madam President, I ask unanimous consent that the order for the quorum call be rescinded. The PRESIDING OFFICER. Without objection, it is so ordered. Mr. McCONNELL. Madam President, it is time to get the job done on FISA. It is time to get the job done. From the beginning of this debate, I had aimed to give Senators a chance to advance bipartisan compromise legislation through the regular order. That is why I offered extension proposals that sought to create the space needed to do that. But as we all know, by now, every effort to temporarily extend important counterterrorism tools--even noncontroversial ones--was either voted down or objected to. So here is where we are. We find ourselves in a circumstance where important tools have already lapsed. We need to work quickly to remedy this situation. Everyone has had ample opportunity to say their piece at this point. Now is the time for action. That is why, in just a moment, I will ask for unanimous consent to allow the Senate to consider cloture on the House-passed FISA bill, along with amendments to improve it, today--not tomorrow but today. There is no point in letting another day lapse when the endgame is clear to absolutely everyone--we know how this is going to end--when we have seen such a robust debate already, a big debate, not only in the Senate but across the country, and when the need to act expeditiously could not be more apparent. Madam President, I ask unanimous consent that at 6 p.m. today, the Senate vote on the pending cloture motion on H.R. 2048, the U.S. FREEDOM Act, and that if cloture is invoked, that all postcloture time be yielded back and the Senate proceed to vote on the pending amendments under the regular order; that upon disposition of the amendments, the bill be read a third time, as amended, if amended, and the Senate proceed to vote on passage of the bill, as amended, if amended. The PRESIDING OFFICER. Is there objection? The Senator from Kentucky. Mr. PAUL. Madam President, reserving the right to object, I would be happy to agree to dispensing with the time and having a vote at the soonest possibility, if we were allowed to accommodate amendments for those of us who object to the bill. I think the bill would be made much better with amendments. If we can come to an arrangement to allow amendments to be voted on, I would be happy to allow my consent. But at this point, I object. The PRESIDING OFFICER. Objection is heard. Mr. McCONNELL. Madam President, without consent to speed things up, the cloture vote will occur an hour after the Senate convenes tomorrow, on Tuesday. Therefore, Senators should expect the cloture vote at 11 a.m. tomorrow. The PRESIDING OFFICER. The Senator from North Carolina. Mr. BURR. Madam President, before the recess, there was an attempt to try to bring finality before this bill expired. At that time, I reached out to my friend and colleague from Kentucky, Senator Paul, and offered him my assurance, as manager of the bill, that we would take up his amendments. But as the President of the Senate knows, if any one Senator objects to a vote, then a vote does not happen. I consented at that time that I would initiate a tabling of his amendment so that there could actually be a vote. There has been every attempt to try to accommodate amendments. I think that given the short time that we are [[Page S3390]] dealing with, where we are trying to make sure that the expiration of these needed tools is as limited as we can, the leader is exactly right. You cannot go outside of the processes that were already triggered prior to this. I think we have made every attempt to try to accommodate the current Senate rules, but unfortunately, there were objections to that as we departed town over a week ago, and we are where we are. For my colleagues' sake, let me restate where we are. We have had the expiration as of midnight last night of section 215. Section 215 has many pieces to it, but there are three that are highlighted. One is the ``lone wolf'' provision, an individual who has no direct tie to a terrorist organization but could be radicalized in some type of communication, and ``lone wolf'' provides us the ability to target them without a direct association to a terrorist group. And roving wiretaps are the ability to target an individual and not a specific phone. These two are noncontentious, and there was a request by unanimous consent yesterday before the expiration to extend those two pieces. There was an objection. The Senate operates by rules. When one Senator objects, everything stops. For that reason, those two provisions expired last night. Let me say for the benefit of my colleagues and for the American people that any investigation that was currently under way as of 12 o'clock last night can continue to use those two tools. What is affected while we are in this expiration period is that you cannot open a new investigation and use those two tools to investigate that individual. So we are limited on anything that might have opened since 12:01 this morning. My hope is that the Senate will dispose of all of the 215 provisions by 3 o'clock tomorrow. We can turn the faucet back on, and law enforcement can use those two tools. But the third piece has been the focus of contention in the Senate and in the country, and it deals with a program called the metadata program. It is a scary word. Let me explain what the metadata program is. The NSA receives from telephone companies a telephone number with no identity whatsoever. We refer to it as a deidentified number. They put all of that into one big database. The purpose of it is that when we find a known terrorist outside of the country and we have his telephone number, then we want the ability to query or search that big database to see if that known terrorist talked to anybody in the United States. We actually have to go to court--to the FISA Court--to get permission, and we have to have articulate, reasonable suspicion that there is a connection, that that known terrorist's telephone number can be tested against this database. We collect the telephone number, we collect the date the call was made, and we collect the duration of time of the call. There is absolutely zero--zero--content. There is zero identifier. There is not a person's name to it. People have questioned whether the program is legal. It is legal because the Supreme Court has said that when we turn over our data to a third party, we have no reason to believe there is a privacy protection. Therefore, when we get that telephone number from a telephone company, we throw it into a pool, and the only person who should ever be worried is somebody who is in that pool that actually carried on a conversation with a terrorist. And if we connect those two dots--a person in America and a known terrorist abroad--and they communicate, then it is immediately turned over to the FBI for an investigation. It is a person of suspicion. We turn it over to law enforcement. Law enforcement then goes through whatever court procedures they need to do to investigate that individual. That is the metadata program. That is the contentious thing that has bogged this institution down to where we have let it expire--in most cases because people have suggested it is something other than what I have just described. I have read a lot of the myths. Let me just go back through some of them again. I think it is important. Myth No. 1: The NSA listens to Americans' phone calls and tracks their movement. The NSA does not and cannot indiscriminately listen to Americans' phone calls, read their emails or track their movement. The NSA is not targeting or conducting surveillance of Americans. Under the Foreign Intelligence Surveillance Court--FISA Court--order, the only information acquired by the government from telephone companies is the time of call, the length of call, and the phone number involved in the call. The government does not listen to the call. It does not acquire the personal information of the caller or the person who is called, which is obtained only through a separate legal process including, if necessary, a warrant based on probable cause, which is the highest standard that the judicial system has. Frankly, there is more information available in a U.S. phonebook than what the NSA puts in the metadata base. There is more privacy information that Americans share with their grocery store when they use their discount card to get groceries. There is more data that is collected at the CFPB on the American people than the NSA ever dreamed about, but there is nobody down here trying to eliminate the CFPB, although I would love to do it tomorrow. But the fact is, if this is about privacy, how can we intrude on anybody's privacy when we do not know who the individuals are of the phone numbers that we have? And there is the fact that the Supreme Court has said that when you relinquish that information to your phone company, you have no right of privacy. Myth No. 2: The NSA program is illegal. There have been some who have come to the floor and said that. The Supreme Court held in Smith v. Maryland and in U.S. v. Miller that there is no reasonable expectation of privacy in telephone call records, such as those obtained under section 215. Those records are not protected by the Fourth Amendment. Under the current 215 program, the judges of the FISA Court must approve any request by the FBI to obtain information from the telephone companies. Congress has reauthorized the PATRIOT Act seven times. The FISA Court reviews the act in an application every 90 days, and the FISA Court has approved the reauthorization of those 90-day extensions over 41 times. This is not a car on cruise control. This is a program that every 90 days the court looks at and assesses whether for another 90 days we have the right to run the program. Put on top of that, the congressional oversight of the program is probably the second-most or third-most looked at program by the Senate and House Intelligence Committees of any program within our intelligence community. Myth No. 3: The NSA dragnet repeatedly abuses government authority. The government does not acquire content or personal information of Americans under the section 215 program. The names linked to the telephone numbers are not available unless the government obtains authorization through a separate legal process, including, if necessary, a warrant based on probable cause. Careful oversight of the program reveals no pattern of government abuse whatsoever. In fact, after more than a decade, critics cannot cite a single case of intentional abuse associated with FISA authorities. That is a far cry from the debate that we have listened to and, I might say, that has been covered on some of the national media. Myth No. 4: The government stopped only one plot using section 215. For anybody that was listening earlier to me, I described four specific things that I can talk about in public. There were four plots. A plot is something that you get to before an act is done. We even talked about the Tsarnaev brothers, who committed a violent act that killed and maimed a number of people in the Boston Marathon. We had the ability because we had a foreign telephone number that we thought was tied to the Tsarnaevs, and even after the fact, we were able to go back and use 215 to see if there was a foreign nexus to an act that had already been committed. In this case, we could not find that nexus, but we had the tools available so that law enforcement could responsibly look at the American people and say we have done everything to make sure that there are not additional participants in this act who [[Page S3391]] might carry it out at the next marathon or the next race or the next festival. That is what our ability is supposed to be if, in fact, our oath of office as a Member of Congress is to defend the country, number one. Myth No. 5: The FISA Court is a rubberstamp. Despite all the claims that the FISA Court approves 99 percent of the government's applications, the FISA Court often returns or demands modifications to about 25 percent of the applications before they are even filed with the court. According to the FISA Court chief judge, the 99-percent figure does not reflect--does not reflect--the fact that many applications are altered prior to the final submission or even withheld from final submission entirely, often after an indication that a judge would not approve them. Let me put this in perspective. Twenty-five percent more of the wiretap applications are approved than of FISA. I mean, that says enough right there. In comparison to Federal court documents which include wiretap applications as instructed, of the 13,593 wiretap applications filed from 2008 to 2012, the Federal district court approved 99.6. The only reason that FISA is at 99 percent is because when the government sees that they are not going to be approved, they withdraw the application. That seldom happens in wiretap applications. Myth No. 6: There is no oversight of the NSA. The NSA conducts these programs under the strict oversight of three branches of government, including a judicial process overseen by Senate-confirmed judges appointed to the FISA Court and a chief judge of the United States. Republicans and Democrats in Congress together review, audit, and authorize all activities under FISA. There are few issues that garner more oversight attention by congressional Intelligence Committees than this program, as well as the responsibilities imposed on the executive branch to make sure that the Federal agencies in a timely fashion share all information with the select committees in the Senate and the House for the purposes of oversight of our intelligence community. Now, some have suggested that because the Director of the NSA says we think we can do this, we should just trust them. Please understand that the reason we are having this debate is because some have suggested that the NSA cannot be trusted. Once again, I will state for my colleagues that we are going to do everything we can to wrap this up by 3 p.m. tomorrow. The debate about whether the data is going to transfer from the metadata program at NSA to the telephone companies has been decided. It will transfer. Over the next 24 hours, we will attempt to take up the USA FREEDOM Act--the exact language that was passed by the House--with a substitute amendment that embraces all of the House language with the exception of two issues. We will make two changes. One of the changes will require the telephone companies to provide a 6-month notice of any change in their data retention policy. In other words, if one telephone company has an 18-month retention program currently in place and they decide they are only going to hold the data for 12 months, they have to notify the Federal Government 6 months in advance of that change. The second change will require the Director of National Intelligence to certify that on the transition date, that the government has provided the technology for the telephone companies to be able to search the data in a timely fashion for us to stay in front of attacks. In addition to that substitute amendment, which I hope my colleagues will support because there are minimal changes, there will be two amendments to the bill. The first amendment will change the transition period from 6 months to 12 months. So when the Director of the NSA says ``I think we can do it in 6 months,'' to the Intelligence Committee, ``I think we can do it'' is not a good answer. So what we are asking is that we go from 6 months to 12 months so we can make sure the technology is in place for this program to continue. The last piece is a change in the amicus language of the bill or the friend-of-the-court language in the bill. The bill itself uses the words that the courts shall--which means must--have a friend of the court, and that is not needed in all cases. If that is applied to all cases, it will put in place a very cumbersome and untimely process. When we are dealing with trying to get in front of an attack and dealing with individuals who are linked to known terrorists abroad, we want to have a way to query that data, to search that data as quickly as we possibly can with the approval of the court. So what we have done is taken language that has already passed out of the Intelligence Committee and has been signed off by the courts that changes ``shall'' to ``must.'' It basically says that the court has the opportunity, anytime they need a friend of the court's advice, to turn to it and to get it, but it doesn't require that they have a panel set up that automatically sits in on every consideration, because a judge doesn't always need that. As the Presiding Officer of the Senate knows, the FISA Court operates in secret, which is another criticism of many people. Well, I don't want to share any secrets, but sometimes the Senate operates in secret. Most of the time, the Intelligence Committee operates in secret. Believe it or not, some titans of the courts in our country operate in secret. They have the authority to do it anytime there is secret or classified information that can't be shared publicly. Well, that is all the FISA Court does. That is the reason it is in secret. It is not because we don't want the American people to know that there is a FISA Court or that there is an application or a decision made by the FISA Court, but everything the FISA Court takes up is secret or classified, so it has to be done in secret, just like some of the budgets and some of the authorizations we do in the Senate that are classified. We shut these doors, we empty the Gallery, we cut off the TV, we hash out our differences, we come together, and we have a piece of legislation that only those people who are cleared can read. That is part of functioning. And part of functioning from a standpoint of getting in front of terrorism is to make sure the tools are in place to allow not only intelligence but law enforcement to do their job. I think when the American people understand how simple this program is--we take the telephone numbers, we take the date the call was made, we take the duration of the call, and if it connects to a known foreign terrorist number, then we turn it over to the Federal Bureau of Investigation and they go to court to figure out whether this is an individual they need to look at. It is no longer a part of the intelligence community. It is a valuable tool. It has helped us to thwart attacks in the past. My hope is that after we get through with business tomorrow at about 3 p.m., that this will continue to be a useful tool. I urge my colleagues to expeditiously consider not only the base language but the substitute and both amendments. I yield the floor. I suggest the absence of a quorum. The PRESIDING OFFICER. The clerk will call the roll. The legislative clerk proceeded to call the roll. Ms. MIKULSKI. Madam President, I ask unanimous consent that the order for the quorum call be rescinded. The PRESIDING OFFICER. Without objection, it is so ordered. Remembering Beau Biden Ms. MIKULSKI. Madam President, I rise to speak about where we are as we debate the various aspects of the USA FREEDOM Act. However, before I proceed with my statement on the current issue before the Senate, I really wish to note the very sad passing of our Vice President's son, Beau Biden, who passed away at age 46 of brain cancer. Of course, the world knows this now because of the news announcement. Standing on the Senate floor, where I served with the Vice President when he was a U.S. Senator, I just personally want to express my condolences to him on behalf of myself, his friend in the U.S. Senate and his colleague on so many issues, as well as the people of Maryland. Once the news broke over the weekend, many people asked me in my home State: Did you know him? Had you ever met him? There is just a general outpouring of sadness for his family, his wife, his two children, and, of [[Page S3392]] course, the Vice President and his stepmother Jill. So, Mr. Vice President, if you have the opportunity to listen, know that the U.S. Senate is sending our thoughts and our prayers to you during this difficult time. Madam President, I wish to speak now about where we are in terms of our parliamentary situation. Once again, here we are in the Senate where, when all is said and done, more is getting said than is getting done. I am a very strong proponent of the oath I took to defend the Constitution of the United States against all enemies. By that I mean we have to be able to protect this country. We need to have a sense of urgency about it. I am not only disappointed, I am deeply, deeply, deeply frustrated that the key authorities of the PATRIOT Act expired last night, when we had a path forward on legislation that would be constitutionally sound, would be legal, and would be authorized. But what did we do? We got ourselves into a parliamentary quagmire with the filibuster of one individual, which now has left us exposed in the world's eyes. Major authorities were given to our intelligence community to be able to pursue the surveillance of potential terrorists, and they have expired. Those authorities included ``lone wolf,'' the roving wiretap, and some other aspects involving surveillance, and we have just let them expire at midnight. Right now, I hope we do what we can to pass the USA FREEDOM Act without delay. We need to get these authorities restored. Do we need reform? Absolutely. But let's not delay. Let's get it going. Others are going to speak later on today on the merits of the USA FREEDOM Act. I believe it is our best opportunity to protect the Nation, while balancing privacy and constitutionally approved surveillance. I do support reforming the PATRIOT Act, but I don't support unilateral disarmament. I don't want to throw the PATRIOT Act away. I don't want to throw away our ability to place potential terrorists under surveillance. I don't want to give in under the guise of some false pretense about privacy where we say, Well, gee, I worry about my privacy, so the terrorists don't need to worry about us being able to pursue them. Our Nation needs to know that when bad guys with predatory intent are plotting against the United States of America, we are going to know about it and we are going to stop it. We are going to know about it because we have the legal authority to track them, put them under surveillance, and we are going to stop them before they do very bad things to our country. The purpose of my comments today is to stand up not only for the ability to have a law but also for the men and women who are working for the intel agencies--for the people who work at the National Security Agency in my own State, the FBI, and other agencies within our intel community who are essential to protecting our country against terrorist attacks, whether it is a ``lone wolf'' or State-sponsored terrorism. These dedicated, patriotic, intelligence professionals want to operate under a rule of law. They want to operate under a rule of law that is constitutional, that is legal, and that is authorized by the U.S. Congress. They are ready to do their job, but they are wondering when we are going to do our job. Congress needs to pass a bill, as promptly as it can, that is constitutional, legal, and authorized. We on the Intelligence Committee have worked long and hard on such a legislative framework. We have cooperated with members of the Judiciary Committee, including Senators Grassley of Iowa and Leahy of Vermont, who have also worked on this. We worked together putting our best ideas forward, doing the targeted reform that was essential, not pursuing unilateral disarmament, and we now have legislation called the USA FREEDOM Act. Is it a perfect bill? No, it is not perfect, but it is constitutional. If we pass it, it will be legal, and it will be authorized. I know the Presiding Officer is a military veteran and I support her for her service. The Presiding Officer knows what it is like when people try to trash America. Ever since Eric Snowden made his allegations, the wrong people have been vilified. The men and women of our intelligence agencies have been vilified as if they were the enemy or the bad guys. I have the great honor to be able to represent the men and women who work at the National Security Agency and some other key intelligence agencies located in my State. They work a 36-hour day. Many times they have worked a 10-day week. When others have been eating turkey or acting like turkeys, they were on their job, doing their job, trying to protect America. Let me tell my colleagues, these people who work for the National Security Agency, for the FBI, and other intelligence agencies are patriots. They are deserving of our respect, and one way to respect them is to pass the law under which they can then operate in a way that is again appropriate. At times, these men and women, ever since Eric Snowden, have been wrongly vilified by those who don't bother to inform themselves about national security structures and the vital functions they perform. Good one-liners and snarky comments have been the order of the day. Now, the National Security Agency is located in my State, but I am not here because it is in my State. I am here because it is located in the United States of America. Thousands of men and women serve in silence without public accolades, protecting us from cyber attacks, against terrorist attacks, as well as supporting our war fighters. I wish the Presiding Officer would have the opportunity to come with me to meet them sometime. They are linguists. They are Ph.D.s. the National Security Agency is the largest employer of mathematicians in America. They are the cyber geeks. Many of them are whiz kids. They are the treasured human capital of this Nation. If they had chosen to go to work in dot-com agencies, they would have stock options and time off and financial rewards far beyond what government service can offer. We need to be able to support them, again, by providing them with the legal authority necessary. Remember, that section 215 is such a small aspect of what these intelligence agencies do as they stand sentry in cyber space protecting us. People act as though that is all NSA does. They haven't even bothered to educate themselves as to the legality and constitutionality of where we are. Now, let's say where we are and let's say where we have been. Much has been said about the PATRIOT Act. It has been sharply criticized. There has been no doubt that it does require reform. That is why the Congress, in its wisdom, when it passed the bill right after 9/11, put in the safeguard of periodic sunsets so we could take a breather and reexamine the law to make sure what we did was appropriate and necessary. Congress did pass the PATRIOT Act so the men and women at the intelligence agencies worked under what they thought was the rule of law that Congress supported. President George Bush also told us and his legal advisors told us that it was constitutional, so people believed it. Those men and women at the intelligence agencies thought they were working under legislation that was constitutional, legal, and authorized because we passed it. Well, now others say it wasn't. Others even want to filibuster about it. They want to quote the Founding Fathers. Well, I don't know about the Founding Fathers, but I know what the ``founding mothers'' would have said. The ``founding mothers'' would have said get off the dime and let's pass this legislation. We do need good intelligence in a world of ISIL, al-Nusra Front, and Al Qaeda. NSA is one of our key agencies on the frontline of defense, and the people of the National Security Agency make up the frontline. As they looked at audits, checks and balances, and oversight, there was no evidence ever of any abuse of inappropriate surveillance on American citizens. We need to know that and we need to recognize that. Those employees thought they were implementing a law, but some in the media-- and even some in this body--have made them feel as though they were the wrongdoers. I find this insulting and demeaning. The morale at the National Security Agency was devastated for a long time. People were vilified, families were harassed for even working at the NSA, [[Page S3393]] and, in some instances, I heard even their children were bullied in school. This isn't the way it should be. They thought they were patriots working for America. When the actions of our own government have placed these workers where they feel under attack--they were attacked by sequester and they felt under attack by a government shutdown because many of them were civilian employees at DOD--they were not paid--and now Congress's failure to reform national security has further then said: We can take our time. What you are doing is important, but we have to talk some more. Gee, we have to talk some more. What do you mean we have to talk some more? The only person in the Chamber is my very distinguished colleague, the distinguished colleague from Indiana, whom I work with in such a wonderfully cooperative way on the Intelligence Committee. You know we are not bipartisan, we are nonpartisan for the good of the country. Where is everybody who wanted to speak? Do we see 10, 20, 30, 40, 50 Senators lined up waiting to speak? No. We have to kill time. I don't want to kill time. I am afraid Americans will be killed. We have to get on this legislation and we have to get our act together and we have to pass it. I want the people to know we cannot let them down by our failure to act and to act promptly. I come to the floor to say let's pass the USA FREEDOM Act and let's do it as soon as we can. I know a vote has been set for 11 o'clock tomorrow. That means that it will be almost 35 or 36 hours since the authorities expired, and then it has to go over to the House. So let's move it and let's keep our country safe and let's get our self-respect back. For those who looked at our country, there were three attitudes toward America: One was great respect for who we are, our rule of law; the other was our fear, because we were once the arsenal of democracy; and, third, the yearning to be in a country that worked under a Constitution, a Congress that worked to solve the problems of our Nation. Can we get back to that? I know the Presiding Officer wants to get back to that. I know my colleague here wants to be part of that. Let's get back together, where shoulder to shoulder we shoulder our responsibilities, pass the legislation we need to, protect our country, respect the men and women who work there, and say to any foe in the world that the United States of America stands united and is willing to protect us, and to the men and women who work for us in national security, we will support you by passing legislation promptly that is constitutional, legal, and authorized. Madam President, I yield the floor. The PRESIDING OFFICER. The Senator from Indiana. Mr. COATS. Madam President, I want to thank my colleague from Maryland, a member of the Senate Intelligence Committee. It is obvious this is a bipartisan effort in dealing with the security of the American people. The Senator from Maryland is not from my party. Together, we serve on the Intelligence Committee. We have served hundreds of hours on that committee together doing everything we can to provide our country with the opportunity to protect Americans from harm. The threat to Americans today has never been greater. We are dealing with fires raging in the Middle East and terrorist groups forming as we speak, targeting the United States and Americans, and inspiring Americans to take up arms against their fellow citizens for whatever jihadist cause they are using as the basis for the brutality that is spreading throughout the Middle East and that can happen here if they respond to these inspirational social media requests from organizations such as ISIS, Al Qaeda, and many others. I understand Americans' frustrations and concerns about their civil liberties and privacy. Those concerns have been bolstered by acts of government that can hardly be explained. Look at what has taken place with the IRS. Talk about targeting people, invading their privacy and civil rights and using the organization of government for political purposes is outrageous. Of course, people are up in arms about all of this, the debacle of Benghazi and Fast and Furious and on and on over the years. One can go into what has happened to instill distrust in the minds of the American people. When a program such as this comes along and, unfortunately, the American people are told by Members of this Congress falsehoods as to what this program is and what it isn't, it just feeds the narrative that Washington is in their bedroom, Washington is in their home, it is in their phone, it is listening to their calls--Washington is monitoring everything they do--their locations. This simply is not true. We have an organization and tools put in place with that organization, the National Security Agency, following the tragic events of 9/11 that the American people insisted on putting in place. Let's use the tools that we can to try to prevent another 9/ 11 from happening, to try to identify terrorist attacks before they happen, not to clean up after they happen. The frustration for those of us on the Intelligence Committee is we are not able to come down and refute statements that are false that are made here without breaching our oath not to release classified information. We have had briefings with all of our Members. Some don't choose to attend, and therefore their narrative continues without any ability to publicly challenge what is being said. It has been said on this floor that Big Government is listening to everyone's phone calls. That is patently false. First of all, it is impossible. There are trillions of phone calls made every day throughout the world. The calculation is that it would take 330 million employees sitting there monitoring Americans' phone calls to be able to listen to everyone's phone calls. It is an impossibility, No. 1. No. 2, it is guaranteed that this is not happening because the authorities given to the National Security Agency prevent that from happening. There are layers and layers of attorneys and others who oversee this process, including those of us in the Intelligence Committees in the Senate and the House, the Justice Department, and the executive branch. All three branches of government are so concerned that this program could potentially be abused that the oversight is such that it would take a monumental conspiracy, involving hundreds and hundreds of people, to all agree that, yes, let's do this and breach the law. If what has been said on this floor about the nature of this program was correct, I would be the first to line up and say I am here to defend the liberties that are being abused by the government. I guarantee to my constituents that this is a high priority for me, that I do not support anything that would violate their civil rights or violate their privacy. That is true of those of us on the Intelligence Committee, whether we are a Democrat or Republican. We have heard today from Senator King, who is on the committee. We have heard from Senator Mikulski of Maryland, who spoke. We heard from Senator Nelson, who was formerly on the committee on the Democratic side. On the Republican side, our leader of the committee, Senator Burr, has laid out in great detail how this works. The tragedy is that in being forced to describe what the program is and what it isn't, we have had to declassify information. Guess who is listening. I hope a lot of the American people are listening because they need to understand that much of what they have heard is simply a falsity. It is factually incorrect. I am not going to go into why this has happened, why some Members choose to say things like--and I am stating what has been said on this floor--``Big Government is looking at every American's records, all Americans' phone records all the time. They have said the NSA collects Americans' contacts from address books, buddy lists, calling records, phone records, emails, and do we want to live in a world where the government has us under constant surveillance?'' None of us want to live in that kind of world. That is why we live in America. That is why America is what it is. This is not Stasi Germany. This is not a Communist regime. This is not a totalitarian society. We would not allow that here. Our Constitution guarantees privacy and we cherish that privacy and we protect that privacy. But to [[Page S3394]] come down to this floor and make statements such as those is irresponsible, and it is a narrative that is just not the case. Poor Ben Franklin has been dragged into this because the quote that has been attributed to Franklin that should drive our decision on this point was: ``Those who would give up essential Liberty to purchase a little temporary Safety deserve neither Liberty nor Safety.'' I agree with that, but the key word here is ``essential.'' This matter has come before the Supreme Court, and the Supreme Court has said that what the NSA is doing in storing phone numbers only--not names, not collecting information--is not essential to liberty. They have declared it as a necessary, effective tool that is open. The only information that is in your phone record is the date of the call, the number called, the duration, and the time of the call--nothing more than that. Why is this done? It is done so that when we determine the phone number of a known terrorist in a foreign country, we can go into that haystack of phone numbers and say, Was that phone number connected to a phone number held by someone in America? In fact, the former Director of the CIA said that we likely would have prevented 9/11 because we now know that a phone number in America was connected to a phone number of a terrorist group--Al Qaeda--and we could have taken that information to the FISA Court or to a court and gotten permission to check into that to see if that was leading to some kind of terror attacks. It doesn't take much to recall the images of what happened on 9/11, where we were, what horror we stood and watched coming over the airwaves, and the tragedy and the loss of life that took place, changing the face of America. So it is important that we tell the American people what it is and what it isn't. It is important that Members take responsibility to understand this is an issue that rises above politics. This is an issue that cannot be used and should not be used for political gain, whether it is monetary gain or whether it is feeding a base of support that responds to the scare tactics of America listening to all of your calls, Big Government in all of your business. This is too important an issue. This is about the safety of America. This is about preventing us from terrorist attacks. The threat is real, and it is more real than it has been in a long, long time. So I talked yesterday about the existing program, what it was and what it isn't. It has been talked about by my colleagues on the floor. We have moved to a point where we have to choose between the better of two bad choices. One choice is that we eliminate the program. One of our Members in the Senate has publicly indicated that is what he wants to do. He claims it is unconstitutional. Unfortunately, he doesn't have the support of the Supreme Court that has dealt with this issue, nor the constitutional lawyers. That is a case that just simply cannot be made because it doesn't impede on anyone's liberty. Again, I would say, if it did impede on Americans' liberty, I would be the first in line to state that and to fight against it. But it is a solution to something that is not a problem. But secondly, because one individual would not grant even the shortest of extensions, even an extension on two noncontroversial parts of this program that no one has challenged, to allow that to go forward so that we could keep something in place to address a potential threat that could happen--even that was denied us last evening as the clock was ticking toward midnight, and the program expired. Someone who is so determined to eliminate this entire program, who has misrepresented this program to the American people, so determined to stay with his narrative that he would not even allow an hour, not even allow a day, not even allow minutes for us to try to reconcile the differences here with the House of Representatives--and those differences are pretty small. Senator Burr has been in negotiations with the House and with Members of the Senate relative to some changes and modifications in the USA FREEDOM Act, which was supported by a significant bipartisan majority in the House of Representatives. I think that is a step in the right direction. It does not solve all of the problems. My concern with the FREEDOM Act is a concern of many; that is, the act has some major flaws, some of which I thought were fatal. But I have to measure that against nothing. Thanks to the procedural maneuvering by one Member here, we have been left with only two choices. The Senate majority leader laid those out with some clarity yesterday and today. The choices are completely eliminate the program, go completely dark, take away this tool, and put Americans more at risk--thanks very much, but it is over and try something else--or a provision that has been passed by the House of Representatives that moves collection of the phone numbers from NSA to the telephone companies. The problem with the bill is that it does not mandate that movement. It is a voluntary act that the phone companies are most likely not going to want to adhere to, primarily because they now have to set up a situation where they potentially could be liable for breaches of the people who are overseeing their program. There are 1,400 telephone companies in the United States. Many of them are small. But to move this program, which has six layers of oversight at NSA, which has the oversight of the Senate Intelligence Committee and the House Intelligence Committee, which has the oversight of the Department of Justice and the administration, and which has the oversight of the Federal intelligence court called FISA--all of that security oversight--to make sure there is no breach will now get transferred over to up to 1,400 telephone companies. The people who oversee this program--it is a very small number at NSA who operate this program--have had intensive background checks and security clearances. They have proven their commitment to make sure--to do everything possible not to abuse this program. There has never been a documented case, never one case of an abuse of this program--again, a solution to something that is not a problem. All of a sudden, now we will have dozens, if not hundreds, if not more than 1,000 phone companies all putting their own programs in place. This is not something they would like to do, No. 1, because it is going to be very costly, and, No. 2, they cannot guarantee that every one of their people is going to have the same kind of background check and security check NSA has. They will not have the oversight of the Intelligence Committees, of the Justice Department, of the executive branch. We are trusting a private entity to do the kinds of things that multiple agencies do. And you can just count on probably some breaches of security there as people want to use the capability to abuse that program for whatever reason--maybe checking up on their wife or their girlfriend or their business partner or who knows for what possible reasons they could use it. So it really does not add privacy protections; it detracts from privacy protections. Secondly, the retention of records is voluntary. Now, if we have some amendments that are passed by this body and accepted by the House, we will get notification if a company does not want to retain those records. But there is no retention authority granted here to us to ensure that those companies will keep any phone numbers, and then the capability of the program will be significantly reduced. We are having to look at a very sophisticated program that the NSA says: We are not sure it is going to work. We are not sure if this process that the FREEDOM Act requires to replace what we have now is going to be effective. It is going to take many months to determine if that is the case. So it is an untested program that we are putting a bet on that this is going to work. It would be nice to know we had something in place we can easily replace this with. So we are going from the known to the unknown. We are making a bet that this is going to be more effective and provide more privacy for the American people. It is a diminishment and a significant degradation of the current program. It will not be as effective as the program that is currently in place. Nevertheless, we have [[Page S3395]] to weigh this against nothing. That is the position we have been put in because one Senator would not allow an extension of time for us to have a more lengthy debate and reasonable negotiation in consultation with the House of Representatives to arrive at something that will give us more assurance that we have a program in place that does not breach privacy but allows us to detect potential terrorist attacks and stop those attacks before they take place. Having had to go through all of this and raise these kinds of issues here and talk about a fellow colleague is not fun. It is not something I hoped I would ever have to do. But I could not stand by and watch a program that is helping protect American people from known terrorist threats and let their safety be jeopardized by falsehoods that are being said about what this program is and is not. It looks like we are coming together on something that is far from what we need, that is going to significantly degrade our capability, but it is the only choice that we have. We are going to have to weigh that decision. Is something that is far less better than nothing? Ultimately, given the fact that these threats have never been greater, something--even if it is not what we now have--something is better than nothing. But we have been put in this situation unnecessarily by misrepresentations and a public that has not been informed. It is not their fault. We have not been able to because so much of this has been classified. Now, much of it is. Our adversaries, the terrorist groups, know a lot about the program they did not know about before. Thanks to Edward Snowden and thanks to some misrepresentations, we are left with the devil's bargain, and that is to choose the best of the worst. We will talk this through today. We will have a vote tomorrow. In my mind, it is absolutely essential that the modifications that are being made, that are being presented--I will not go into depth about those. It has already been talked about here. It is essential that those be passed by this body. It is, of course, essential that the House accept them. I know a lot of negotiation has gone on back and forth, and it will continue. But it is the only way to keep a program in place. Even as degraded as it is, even as compromised as it is, it is the only way to keep a program in place. So I will be supporting those tweaks, those changes, even though I think they are far short of what we need to do to fix the issue that was rushed through the House without much deliberation. But to make it stronger, to put it in a better position, I will support those. If those amendments can be passed, then I will reluctantly choose to vote for something that is better than nothing, as degraded as it is, in order to keep this program as one of the essential tools--one of many-- as we collect information, keep that in place. I know my colleague from Ohio has been seeking the floor for some time. I apologize for taking too long. I yield the floor. The PRESIDING OFFICER. The Senator from Ohio. Mr. BROWN. Madam President, I ask unanimous consent that following my remarks, Senator Blumenthal be recognized. The PRESIDING OFFICER. Without objection, it is so ordered. Mr. BROWN. Madam President, I ask unanimous consent to speak as in morning business. The PRESIDING OFFICER. Without objection, it is so ordered. [...] The PRESIDING OFFICER (Mr. Coats). The Senator from Connecticut. Mr. BLUMENTHAL. Mr. President, I feel my speaking at this moment is appropriate because much of what I have to say follows logically from the last words of the Presiding Officer when he spoke recently on the USA FREEDOM Act because I agree with the Presiding Officer when he said we need a bill. We need to move forward and approve reforms and changes in the law that are contained in the USA FREEDOM Act. We may be in disagreement about some of the specifics. We may be in contention about the extent of the changes made. But there is a general consensus that this decade-and-a-half old law is in some need of revision. The USA FREEDOM Act contains many important and genuinely worthwhile changes in the rules that will apply as the United States helps to protect our security but also to safeguard and preserve essential rights and liberties. That is the balance which needs to be struck. It is a difficult balance in a democracy, one of the most difficult in an area where secrecy has to be maintained because surveillance is more useful if it is done in secret, but at the same time, rights need to be protected in an open society that prides itself on transparent and accessible courts. Changes in the rules are welcome, such as the end to the present system of bulk collection of phone data. We may disagree on that point. Changes in the rules that I support may not be supported by many of my colleagues. I believe the USA FREEDOM Act goes in the right direction on bulk collection of phone data by ending the current practice in its present form. What brings me to the floor is not so much a discussion about the rules as the method of enforcing those rules and implementing and assuring that they are faithfully executed, which is the role and the responsibility of the Foreign Intelligence Surveillance Court in the first instance. There are means of appeal from that court, but, as with many courts in our system, that one is likely to be the end destination on most issues, particularly since it operates in secret. The USA FREEDOM Act goes in the right direction by making it more transparent and requiring the disclosure of significant decisions and opinions when it is appropriate to do so and under circumstances that in no way should involve compromising our national security--striking, again, a good balance. But this Court, we have to recognize, is an anomaly in an open, democratic system. Its secrecy makes it an anomaly. It works in secret, it hears arguments in secret, and it issues opinions in secret. Its decisions are almost never reviewable. It is, unlike most of our institutions, opaque and unaccountable--understandably so because it deals with classified, sensitive information, protecting our national security against threats that cannot be disclosed when they are thwarted in many instances. The success of actions resulting from the FISA Court are most valuable when they are known to most American people. So this court is special. It is different. But let's not forget that if we were to say to the Founders of this country that there will be a court that works in secret, has hearings in secret, issues opinions that are kept secret, and its decisions will have sweeping consequences in constitutional rights and liberties, they would say: That sounds a lot like the courts that were abhorrent to us, so much so that we rebelled against the Crown, who said in the Star Chamber, in courts that England had at the time, that there was no need for two sides to be represented or for openness. Secret, one-sided courts were one of the reasons we rebelled. Men and women laid their lives on the line. They lost their homes, treasures, families, and paid a price for open and democratic institutions. So we should be careful about this anomalous court. It may be necessary, but we should try to make it work better, and we have. Transparency in the issuance of opinions is very much a step in the right direction where the issues are significant and the transparency of those decisions is consistent with our security at the moment. There may be a delay, but we should remember that the bulk collection of phone data, which the U.S. Court of Appeals for the Second Circuit said was illegal, persisted for so many years because the decision itself was never made known to the American people. There is another reform that I think is equally if not more significant. Courts that are secret and one-sided are likely to be less accessible not only because they are secret but because they are one- sided. So as a part of this reform, I have worked hard and proposed, in fact, for the first time a bill that would create an adversarial process--two sides represented before the court. A bill that I sponsored in 2013 to reform the Foreign Intelligence Surveillance Court was joined by 18 cosponsors. I thanked them for their support, both sides of the aisle. The basic structures that I proposed are reflected in the USA FREEDOM Act today. Colleagues worked with me--and have since--on formulating that bill and in arriving at this moment where the central goals would be accomplished by section 401 of the USA FREEDOM Act, which provides for the appointment of individuals to serve as amicus curiae--friends of the court--in cases involving a novel or significant interpretation of the law. That provision would be egregiously undercut--in fact, gutted--by McConnell amendment No. 1451 because it would prevent these lawyers-- the amicus curiae who would be selected by the court--from obtaining the information and taking the actions they need to advance and protect the strongest and most accurate legal arguments, and that is really eviscerating the effectiveness of this provision as a protection. It is a protection of our rights and liberties because these amicus curiae would be public advocates protecting public constitutional rights, and they would help safeguard essential liberties not just for the individuals who might be subjects of surveillance, whether it be by wiretap or by other means, but for all of us, because the Foreign Intelligence Surveillance Court is a court. Its decisions have the force of law. Its members are article III judges selected to be on that court, sworn to uphold the law, both constitutional law and statutory law. So this provision, in my view, is fundamental to the court as a matter of concept and constitutional integrity. That integrity is important because it is a court, but it is also important to the trust and confidence the people have in this institution. I was a law clerk to the U.S. Supreme Court--specifically to Justice Blackmun--and I well recall one of the Justices saying to me: You know, we don't have armies; we don't have police forces; we don't have even the ability to hold press conferences. What we have is our credibility and the trust and confidence of the American people. That is so fundamental to the courts of this Nation that consist of judges appointed for life, without any real direct accountability, as we can be held to through the election process. The Foreign Intelligence Surveillance Court has taken a hit in public [[Page S3397]] trust and confidence. There is a question about whether the American people will continue to have trust and confidence and whether that sense of legitimacy and credibility will continue. The best way to ensure it is, is to make the court's process as effective as possible not just in the way it operates but in the way it is seen and perceived to operate, the way the American people know it should operate, and the way they can be assured that their rights are protected before the court by an advocate, an amicus curiae who will protect those rights of privacy and liberty that are integral to our Constitution--and the reason why the Founders rebelled against the English. But there is another reason an advocate presenting the side opposing the government is important to the Foreign Intelligence Surveillance Court; that is, everybody makes better decisions when they hear both sides of the argument. Judges testified at our hearings in the Judiciary Committee about the importance of hearing both sides of the argument, whether it is a routine contract case or a criminal trial-- where, by the way, often a judge's worst nightmare is to have the defendant represent himself because the judge is deprived, and so is the jury, of an effective argument on the other side of the government. And so, too, here we were told again and again and again by the judicial officers who testified before our committee--and I have heard it again and again and again as I have litigated over the last 40 years--that judges and courts work best when they hear both sides. I have no doubt the judges of the FISA Court believe as strongly in constitutional rights and implementation of the Constitution as anyone in this body, including myself. I have no doubt government litigators who appear before the court representing the intelligence agencies seeking warrants or other actions and approval by the court have a commitment no less than anybody in the United States Senate, including myself, to those essential values and ideals. But courts are contentious. They are places where people argue, where sides--different sides--are represented with different views of complex questions, and these issues before the court are extraordinarily complex. They also involve technology that is fast changing and often difficult to explain and comprehend and is easily minimized in the consequences that may flow from approval of them. So the USA FREEDOM Act would provide for, in effect, a panel of advocates and experts with proper security clearances that the court can call upon to give independent, informed opinions and advocacy in cases involving a novel or significant interpretation of law, not in every case, not every argument but where there is, for example, the issue of whether the statute authorizes the bulk collection of phone records. I tend to think the outcome would have been different in that case if the court had been given the opposing side of the argument, the argument that eventually prevailed in the U.S. Court of Appeals for the Second Circuit by a unanimous bench. So the court really deserves this expertise. It deserves the other side and it deserves to hear both sides of the argument. Just to clarify, those two sides of the argument should not be in any way given so as to detract from the time necessary. If it is an urgency, the warrant should be issued and the arguments heard later, just as they are in criminal court. When there is an exigency of time--and I have done it myself as a prosecutor--the government's lawyer should go to the judge, be given approval for whatever is necessary to protect the public or gain access to records that may be destroyed or otherwise safeguard security, public safety, and that should be the rule here too. Now, in the normal criminal setting, at some point, a significant issue of law is going to be litigated if the evidence is ever used, and that is the basic principle here too. If there is a novel or significant issue of law, it should be litigated at some point, and that is where the amicus curiae would be involved. Security clearance is essential, timing is important, and there should be no compromise to our national security in the court hearing the argument that the advocate may present on the other side. It can only make for better decisions. In fact, it will benefit all of our rights. These provisions were written in consultation with the Department of Justice attorneys who advocate before the FISA Court. They are supported by the Attorney General and the National Director of Intelligence. They reflect the balance and compromise that appear throughout the USA FREEDOM Act. Amendment No. 1451 would upset this balance. It would strike the current provisions providing for the appointment of a panel of amicus curiae--the provisions that represent a carefully crafted balance--and it would compromise those provisions in a way that need not be done because this balance has the support of numerous stakeholders, from civil liberties groups to the intelligence community, and it would replace this balance, this institution, with an ineffective, far less valuable advocate. There is no need to water down and undercut and eviscerate the role of the independent experts by removing requirements for the court to appoint a panel of experts to be on call, for the experts to receive briefings on relevant issues, and significantly to provide those experts with access to relevant information. Those provisions are unnecessary and unwise and, therefore, I oppose strongly amendment No. 1451 because it does unnecessarily and unwisely weaken the role of these experts and amicus curiae. Equally important, amendment No. 1451 would limit access and significantly restrict the experts in their going to legal precedents, petitions, motions or other materials that are crucial to making a well-reasoned argument. It would restrict their access unnecessarily and unwisely; thereby, endangering those rights and liberties the public advocates are there to protect. It would also restrict their ability to consult with one another and share insights they may have gained from related cases as government attorneys are currently able to do. By undercutting these essential abilities and authorities, this amendment would hamstring any independence, both in reality and in perception; thereby, also undercutting the trust and confidence this act is designed to bolster and sustain. In short, I know many people of good conscience may disagree over the best way to reform this law. I accept and I welcome that fact. I welcome also my colleagues' recognition that an amicus curiae procedure in some form would benefit this court, but I urge my colleagues to reject an amendment that would lessen its constructive and beneficial impact. We have already delayed long enough. This amendment would not only weaken the bill, it would exacerbate the delay by sending this bill back to the House. We all want to avoid a very potentially troubling delay in approving this measure. I have been dismayed by the divisions and delays that have prevented us from finally approving the USA FREEDOM Act before the existing law expires. We should move now. We should act decisively. We should adopt the USA FREEDOM Act without amendment No. 1451, which would simply further erode the trust and confidence, the legitimacy, and credibility of the Foreign Intelligence Surveillance Court. I urge my colleagues to join me in voting against this amendment, passing the USA FREEDOM Act in its current form, avoiding the delay of sending it back to the House and then potentially having it come back to the Senate, so we can tell the American people we are protecting the strongest, greatest country in the history of the world from some of the most pernicious and perilous terrorist forces ever in the world's history. Mr. President, I yield the floor. I suggest the absence of a quorum. [...] _________________________ [Congressional Record Volume 161, Number 86 (Monday, June 1, 2015)] [Senate] [Pages S3408-S3417] TEXT OF AMENDMENTS SA 1454. Mr. WYDEN (for himself and Mr. Paul) submitted an amendment intended to be proposed by him to the bill H.R. 2048, to reform the authorities of the Federal Government to require the production of certain business records, conduct electronic surveillance, use pen registers and trap and trace devices, and use other forms of information gathering for foreign intelligence, counterterrorism, and criminal purposes, and for other purposes; which was ordered to lie on the table; as follows: At the appropriate place, insert the following: SEC. __. PROHIBITION ON DATA SECURITY VULNERABILITY MANDATES. (a) In General.--Except as provided in subsection (b), no agency may mandate that a manufacturer, developer, or seller of covered products design or alter the security functions in its product or service to allow the surveillance of any user of such product or service, or to allow the physical search of such product, by any agency. (b) Exception.--Subsection (a) shall not apply to mandates authorized under the Communications Assistance for Law Enforcement Act (47 U.S.C. 1001 et seq.). (c) Definitions.--In this section-- (1) the term ``agency'' has the meaning given the term in section 3502 of title 44, United States Code; and (2) the term ``covered product'' means any computer hardware, computer software, or electronic device that is made available to the general public. ______ SA 1455. Mr. WYDEN (for himself and Mr. Paul) submitted an amendment intended to be proposed by him to the bill H.R. 2048, to reform the authorities of the Federal Government to require the production of certain business records, conduct electronic surveillance, use pen registers and trap and trace devices, and use other forms of information gathering for foreign intelligence, counterterrorism, and criminal purposes, and for other purposes; which was ordered to lie on the table; as follows: At the appropriate place, insert the following: SEC. ___. CLARIFICATION ON PROHIBITION ON SEARCHING OF COLLECTIONS OF COMMUNICATIONS TO CONDUCT WARRANTLESS SEARCHES FOR THE COMMUNICATIONS OF UNITED STATES PERSONS. Section 702(b) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1881a(b)) is amended-- (1) by redesignating paragraphs (1) through (5) as subparagraphs (A) through (E), respectively, and indenting such subparagraphs, as so redesignated, an additional two ems from the left margin; (2) by striking ``An acquisition'' and inserting the following: ``(1) In general.--An acquisition''; and (3) by adding at the end the following: ``(2) Clarification on prohibition on searching of collections of communications of united states persons.-- ``(A) In general.--Except as provided in subparagraph (B), no officer or employee of the United States may conduct a search of a collection of communications acquired under this section in an effort to find communications of a particular United States person (other than a corporation). ``(B) Concurrent authorization and exception for emergency situations.--Subparagraph (A) shall not apply to a search for communications related to a particular United States person if-- ``(i) such United States person is the subject of an order or emergency authorization authorizing electronic surveillance or physical search under section 105, 304, 703, 704, or 705 of this Act, or under title 18, United States Code, for the effective period of that order; ``(ii) the entity carrying out the search has a reasonable belief that the life or safety of such United States person is threatened and the information is sought for the purpose of assisting that person; or ``(iii) such United States person has consented to the search.''. ______ SA 1456. Mr. McCAIN submitted an amendment intended to be proposed by him to the bill H.R. 1735, to authorize appropriations for fiscal year 2016 for military activities of the Department [[Page S3409]] of Defense and for military construction, to prescribe military personnel strengths for such fiscal year, and for other purposes; which was ordered to lie on the table; as follows: At the end of subtitle C of title X, add the following: SEC. __. ADDITIONAL INFORMATION SUPPORTING LONG-RANGE PLANS FOR CONSTRUCTION OF NAVAL VESSELS. Section 231(b)(2)(C) of title 10, United States Code, is amended by inserting ``by ship class in both graphical and tabular form'' after ``The estimated levels of annual funding''. ______ SA 1457. Mr. UDALL (for himself and Mr. Wyden) submitted an amendment intended to be proposed by him to the bill H.R. 2048, to reform the authorities of the Federal Government to require the production of certain business records, conduct electronic surveillance, use pen registers and trap and trace devices, and use other forms of information gathering for foreign intelligence, counterterrorism, and criminal purposes, and for other purposes; which was ordered to lie on the table; as follows: At the end, add the following: TITLE IX--PRIVACY AND CIVIL LIBERTIES OVERSIGHT BOARD REFORM SEC. 901. SHORT TITLES. This title may be cited as the ``Strengthening Privacy, Oversight, and Transparency Act'' or the ``SPOT Act''. SEC. 902. INCLUSION OF FOREIGN INTELLIGENCE ACTIVITIES IN OVERSIGHT AUTHORITY OF THE PRIVACY AND CIVIL LIBERTIES OVERSIGHT BOARD. Section 1061 of the Intelligence Reform and Terrorism Prevention Act of 2004 (42 U.S.C. 2000ee) is amended by inserting ``and conduct foreign intelligence activities'' after ``terrorism'' in the following provisions: (1) Paragraphs (1) and (2) of subsection (c). (2) Subparagraphs (A) and (B) of subsection (d)(1). (3) Subparagraphs (A), (B), and (C) of subsection (d)(2). SEC. 903. SUBMISSION OF WHISTLEBLOWER COMPLAINTS TO THE PRIVACY AND CIVIL LIBERTIES OVERSIGHT BOARD. Section 1061 of the Intelligence Reform and Terrorism Prevention Act of 2004 (42 U.S.C. 2000ee), as amended by section 902, is further amended-- (1) in subsection (d), by adding at the end the following new paragraph: ``(5) Whistleblower complaints.-- ``(A) Submission to board.--An employee of, or contractor or detailee to, an element of the intelligence community may submit to the Board a complaint or information that such employee, contractor, or detailee believes relates to a privacy or civil liberties concern. ``(B) Authority of board.--The Board may take such action as the Board considers appropriate with respect to investigating a complaint or information submitted under subparagraph (A) or transmitting such complaint or information to any other Executive agency or the congressional intelligence committees. ``(C) Relationship to existing laws.--The authority under subparagraph (A) of an employee, contractor, or detailee to submit to the Board a complaint or information shall be in addition to any other authority under another provision of law to submit a complaint or information. Any action taken under any other provision of law by the recipient of a complaint or information shall not preclude the Board from taking action relating to the same complaint or information. ``(D) Relationship to actions taken under other laws.-- Nothing in this paragraph shall prevent-- ``(i) any individual from submitting a complaint or information to any authorized recipient of the complaint or information; or ``(ii) the recipient of a complaint or information from taking independent action on the complaint or information.''; and (2) by adding at the end the following new subsection: ``(n) Definitions.--In this section, the terms `congressional intelligence committees' and `intelligence community' have the meaning given such terms in section 3 of the National Security Act of 1947 (50 U.S.C. 3003).''. SEC. 904. PRIVACY AND CIVIL LIBERTIES OVERSIGHT BOARD SUBPOENA POWER. Section 1061(g) of the Intelligence Reform and Terrorism Prevention Act of 2004 (42 U.S.C. 2000ee(g)) is amended-- (1) in paragraph (1)(D), by striking ``submit a written request to the Attorney General of the United States that the Attorney General''; (2) by striking paragraph (2); and (3) by redesignating paragraphs (3) and (4) as paragraphs (2) and (3), respectively. SEC. 905. APPOINTMENT OF STAFF OF THE PRIVACY AND CIVIL LIBERTIES OVERSIGHT BOARD. Section 1061(j) of the Intelligence Reform and Terrorism Prevention Act of 2004 (42 U.S.C. 2000ee(j)) is amended-- (1) by redesignating paragraphs (2) and (3) as paragraphs (3) and (4), respectively; and (2) by inserting after paragraph (1) the following new paragraph: ``(2) Appointment in absence of chairman.--If the position of chairman of the Board is vacant, during the period of the vacancy the Board, at the direction of the majority of the members of the Board, may exercise the authority of the chairman under paragraph (1).''. SEC. 906. PRIVACY AND CIVIL LIBERTIES OVERSIGHT BOARD. (a) In General.--Section 1061 of the Intelligence Reform and Terrorism Prevention Act of 2004 (42 U.S.C. 2000ee), as amended by sections 902 and 903, is further amended-- (1) in subsection (h)-- (A) in paragraph (1), by inserting ``full-time'' after ``4 additional''; and (B) in paragraph (4)(B), by striking ``, except that'' and all that follows through the end and inserting a period; (2) in subsection (i)(1)-- (A) in subparagraph (A), by striking ``level III of the Executive Schedule under section 5314'' and inserting ``level II of the Executive Schedule under section 5313''; and (B) in subparagraph (B), by striking ``level IV of the Executive Schedule'' and all that follows through the end and inserting ``level III of the Executive Schedule under section 5314 of title 5, United States Code.''; and (3) in subsection (j)(1), by striking ``level V of the Executive Schedule under section 5316'' and inserting ``level IV of the Executive Schedule under section 5315''. (b) Effective Date; Applicability.-- (1) In general.--The amendments made by subsection (a) shall-- (A) take effect on the date of enactment of this Act; and (B) except as provided in paragraph (2), apply to any appointment to a position as a member of the Privacy and Civil Liberties Oversight Board made on or after the date of the enactment of this Act. (2) Exceptions.-- (A) Compensation changes.--The amendments made by paragraphs (2)(A) and (3) of subsection (a) shall take effect on the first day of the first pay period beginning after the date of the enactment of this Act. (B) Election to serve full time by incumbents.-- (i) In general.--An individual serving as a member of the Privacy and Civil Liberties Oversight Board on the date of the enactment of this Act, including a member continuing to serve as a member under section 1061(h)(4)(B) of the Intelligence Reform and Terrorism Prevention Act of 2004 (42 U.S.C. 2000ee(h)(4)(B)), (in this subparagraph referred to as a ``current member'') may make an election to-- (I) serve as a member of the Privacy and Civil Liberties Oversight Board on a full-time basis and in accordance with section 1061 of the Intelligence Reform and Terrorism Prevention Act of 2004 (42 U.S.C. 2000ee), as amended by this Act; or (II) serve as a member of the Privacy and Civil Liberties Oversight Board on a part-time basis in accordance with such section 1061, as in effect on the day before the date of enactment of this Act, including the limitation on service after the expiration of the term of the member under subsection (h)(4)(B) of such section, as in effect on the day before the date of the enactment of this Act. (ii) Election to serve full time.--A current member making an election under clause (i)(I) shall begin serving as a member of the Privacy and Civil Liberties Oversight Board on a full-time basis on the first day of the first pay period beginning not less than 60 days after the date on which the current member makes the election. SEC. 907. PROVISION OF INFORMATION ABOUT GOVERNMENT ACTIVITIES UNDER THE FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 1978 TO THE PRIVACY AND CIVIL LIBERTIES OVERSIGHT BOARD. The Attorney General should fully inform the Privacy and Civil Liberties Oversight Board about any activities carried out by the Government under the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.), including by providing to the Board-- (1) copies of each detailed report submitted to a committee of Congress under such Act; and (2) copies of each decision, order, and opinion of the Foreign Intelligence Surveillance Court or the Foreign Intelligence Surveillance Court of Review required to be included in the report under section 601(a) of such Act (50 U.S.C. 1871(a)). ______ SA 1458. Mr. PAUL (for himself and Mr. Wyden) submitted an amendment intended to be proposed by him to the bill H.R. 2048, to reform the authorities of the Federal Government to require the production of certain business records, conduct electronic surveillance, use pen registers and trap and trace devices, and use other forms of information gathering for foreign intelligence, counterterrorism, and criminal purposes, and for other purposes; which was ordered to lie on the table; as follows: At the appropriate place, insert the following: SEC. __. PROHIBITION ON DATA SECURITY VULNERABILITY MANDATES. (a) In General.--Except as provided in subsection (b), no agency may mandate that a manufacturer, developer, or seller of covered products design or alter the security functions in its product or service to allow [[Page S3410]] the surveillance of any user of such product or service, or to allow the physical search of such product, by any agency. (b) Exception.--Subsection (a) shall not apply to mandates authorized under the Communications Assistance for Law Enforcement Act (47 U.S.C. 1001 et seq.). (c) Definitions.--In this section-- (1) the term ``agency'' has the meaning given the term in section 3502 of title 44, United States Code; and (2) the term ``covered product'' means any computer hardware, computer software, or electronic device that is made available to the general public. ______ SA 1459. Mr. PAUL (for himself and Mr. Wyden) submitted an amendment intended to be proposed by him to the bill H.R. 2048, to reform the authorities of the Federal Government to require the production of certain business records, conduct electronic surveillance, use pen registers and trap and trace devices, and use other forms of information gathering for foreign intelligence, counterterrorism, and criminal purposes, and for other purposes; which was ordered to lie on the table; as follows: At the appropriate place, insert the following: SEC. ___. CLARIFICATION ON PROHIBITION ON SEARCHING OF COLLECTIONS OF COMMUNICATIONS TO CONDUCT WARRANTLESS SEARCHES FOR THE COMMUNICATIONS OF UNITED STATES PERSONS. Section 702(b) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1881a(b)) is amended-- (1) by redesignating paragraphs (1) through (5) as subparagraphs (A) through (E), respectively, and indenting such subparagraphs, as so redesignated, an additional two ems from the left margin; (2) by striking ``An acquisition'' and inserting the following: ``(1) In general.--An acquisition''; and (3) by adding at the end the following: ``(2) Clarification on prohibition on searching of collections of communications of united states persons.-- ``(A) In general.--Except as provided in subparagraph (B), no officer or employee of the United States may conduct a search of a collection of communications acquired under this section in an effort to find communications of a particular United States person (other than a corporation). ``(B) Concurrent authorization and exception for emergency situations.--Subparagraph (A) shall not apply to a search for communications related to a particular United States person if-- ``(i) such United States person is the subject of an order or emergency authorization authorizing electronic surveillance or physical search under section 105, 304, 703, 704, or 705 of this Act, or under title 18, United States Code, for the effective period of that order; ``(ii) the entity carrying out the search has a reasonable belief that the life or safety of such United States person is threatened and the information is sought for the purpose of assisting that person; or ``(iii) such United States person has consented to the search.''. ______ SA 1460. Mr. PAUL (for himself and Mr. Wyden) submitted an amendment intended to be proposed by him to the bill H.R. 2048, to reform the authorities of the Federal Government to require the production of certain business records, conduct electronic surveillance, use pen registers and trap and trace devices, and use other forms of information gathering for foreign intelligence, counterterrorism, and criminal purposes, and for other purposes; which was ordered to lie on the table; as follows: Strike all after the enacting clause and insert the following: SECTION 1. SHORT TITLE; TABLE OF CONTENTS. (a) Short Title.--This Act may be cited as the ``Intelligence Oversight and Surveillance Reform Act''. (b) Table of Contents.--The table of contents for this Act is as follows: Sec. 1. Short title; table of contents. TITLE I--ACCESS TO CERTAIN BUSINESS RECORDS FOR FOREIGN INTELLIGENCE AND INTERNATIONAL TERRORISM INVESTIGATIONS Sec. 101. End of government bulk collection of business records. Sec. 102. Emergency authority for access to call data records. Sec. 103. Challenges to government surveillance. TITLE II--PRIVACY PROTECTIONS FOR PEN REGISTERS AND TRAP AND TRACE DEVICES Sec. 201. Privacy protections for pen registers and trap and trace devices. TITLE III--PROCEDURES FOR TARGETING CERTAIN PERSONS OUTSIDE THE UNITED STATES OTHER THAN UNITED STATES PERSONS Sec. 301. Clarification on prohibition on searching of collections of communications to conduct warrantless searches for the communications of United States persons. Sec. 302. Protection against collection of wholly domestic communications not concerning terrorism under FISA Amendments Act. Sec. 303. Prohibition on reverse targeting under FISA Amendments Act. Sec. 304. Limits on use of unlawfully obtained information under FISA Amendments Act. Sec. 305. Challenges to Government surveillance. TITLE IV--FOREIGN INTELLIGENCE SURVEILLANCE COURT REFORMS Sec. 401. Definitions. Sec. 402. Office of the Constitutional Advocate. Sec. 403. Advocacy before the FISA Court. Sec. 404. Advocacy before the petition review pool. Sec. 405. Appellate review. Sec. 406. Disclosure. Sec. 407. Annual report to Congress. Sec. 408. Preservation of rights. TITLE V--NATIONAL SECURITY LETTER REFORMS Sec. 501. National security letter authority. Sec. 502. Public reporting on National Security Letters. TITLE VI--REPORTING FISA ORDERS AND NATIONAL SECURITY LETTERS Sec. 601. Third-party reporting of FISA orders and National Security Letters. Sec. 602. Government reporting of FISA orders. TITLE VII--OTHER MATTERS Sec. 701. Privacy and Civil Liberties Oversight Board subpoena authority. Sec. 702. Scope of liability protection for providing assistance to the Government. TITLE I--ACCESS TO CERTAIN BUSINESS RECORDS FOR FOREIGN INTELLIGENCE AND INTERNATIONAL TERRORISM INVESTIGATIONS SEC. 101. END OF GOVERNMENT BULK COLLECTION OF BUSINESS RECORDS. (a) Privacy Protections for Section 215 Business Records Orders.-- (1) In general.--Section 501(b) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1861(b)) is amended-- (A) in paragraph (1)(B), by striking ``and'' at the end; (B) in paragraph (2), by striking subparagraphs (A) and (B) and inserting the following: ``(A) a statement of facts showing that there are reasonable grounds to believe that the records or other things sought-- ``(i) are relevant to an authorized investigation (other than a threat assessment) conducted in accordance with subsection (a)(2) to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities; and ``(ii) pertain to-- ``(I) a foreign power or an agent of a foreign power; ``(II) the activities of a suspected agent of a foreign power who is the subject of such authorized investigation; or ``(III) an individual in contact with, or known to, a suspected agent of a foreign power; and ``(B) a statement of proposed minimization procedures; and''; and (C) by adding at the end the following: ``(3) if the applicant is seeking a nondisclosure requirement described in subsection (d), shall include-- ``(A) a statement of specific and articulable facts providing reason to believe that disclosure of particular information about the existence or contents of the order requiring the production of tangible things under this section during the applicable time period will result in-- ``(i) endangering the life or physical safety of any person; ``(ii) flight from prosecution; ``(iii) destruction of or tampering with evidence; ``(iv) intimidation of potential witnesses; ``(v) interference with diplomatic relations; or ``(vi) otherwise seriously endangering the national security of the United States by alerting a target, an associate of a target, or the foreign power of which the target is an agent, of the interest of the Government in the target; ``(B) an explanation of how the harm identified under subparagraph (A) is related to the authorized investigation to which the tangible things sought are relevant; ``(C) an explanation of how the nondisclosure requirement is narrowly tailored to address the specific harm identified under subparagraph (A); and ``(D) the time period during which the Government believes the nondisclosure requirement should apply.''. (2) Order.--Section 501(c) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1861(c)) is amended-- (A) in paragraph (1)-- (i) by striking ``subsections (a) and (b),'' and inserting ``subsection (a) and paragraphs (1) and (2) of subsection (b) and that the proposed minimization procedures meet the definition of minimization procedures under subsection (g),''; and (ii) by striking the last sentence and inserting the following: ``If the judge finds that [[Page S3411]] the requirements of subsection (b)(3) have been met, such order shall include a nondisclosure requirement, which may apply for not longer than 1 year, unless the facts justify a longer period of nondisclosure, subject to the principles and procedures described in subsection (d).''; and (B) in paragraph (2)-- (i) in subparagraph (C), by striking ``(d);'' and inserting ``(d), if applicable;''; (ii) in subparagraph (D), by striking ``and'' at the end; (iii) in subparagraph (E), by striking the period at the end and inserting ``; and''; and (iv) by adding at the end the following: ``(F) shall direct that the minimization procedures be followed.''. (3) Nondisclosure.--Section 501(d) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1861(d)) is amended to read as follows: ``(d) Nondisclosure.-- ``(1) In general.--No person who receives an order under subsection (c) that contains a nondisclosure requirement shall disclose to any person the particular information specified in the nondisclosure requirement during the time period to which the requirement applies. ``(2) Exception.-- ``(A) Disclosure.--A person who receives an order under subsection (c) that contains a nondisclosure requirement may disclose information otherwise subject to any applicable nondisclosure requirement to-- ``(i) those persons to whom disclosure is necessary in order to comply with an order under this section; ``(ii) an attorney in order to obtain legal advice or assistance regarding the order; or ``(iii) other persons as permitted by the Director of the Federal Bureau of Investigation or the designee of the Director. ``(B) Application.--A person to whom disclosure is made under subparagraph (A) shall be subject to the nondisclosure requirements applicable to a person to whom an order is directed under this section in the same manner as the person to whom the order is directed. ``(C) Notification.--Any person who discloses to a person described in subparagraph (A) information otherwise subject to a nondisclosure requirement shall notify the person of the applicable nondisclosure requirement. ``(3) Extension.--The Director of the Federal Bureau of Investigation, or a designee of the Director (whose rank shall be no lower than Assistant Special Agent in Charge), may apply for renewals of the prohibition on disclosure of particular information about the existence or contents of an order requiring the production of tangible things under this section for additional periods of not longer than 1 year, unless the facts justify a longer period of nondisclosure. A nondisclosure requirement shall be renewed if a court having jurisdiction under paragraph (4) determines that the application meets the requirements of subsection (b)(3). ``(4) Jurisdiction.--An application for a renewal under this subsection shall be made to-- ``(A) a judge of the court established under section 103(a); or ``(B) a United States Magistrate Judge under chapter 43 of title 28, United States Code, who is publicly designated by the Chief Justice of the United States to have the power to hear applications and grant orders for the production of tangible things under this section on behalf of a judge of the court established under section 103(a).''. (4) Minimization.--Section 501(g) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1861(g)) is amended-- (A) in paragraph (1), by striking ``Not later than'' and all that follows and inserting ``At or before the end of the period of time for the production of tangible things under an order approved under this section or at any time after the production of tangible things under an order approved under this section, a judge may assess compliance with the minimization procedures by reviewing the circumstances under which information concerning United States persons was acquired, retained, or disseminated.''; and (B) in paragraph (2)(A), by inserting ``acquisition and'' after ``to minimize the''. (b) Judicial Review of Section 215 Orders.--Section 501(f)(2) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1861(f)(2)) is amended-- (1) in subparagraph (A)(i)-- (A) by striking ``that order'' and inserting ``such production order or any nondisclosure order imposed in connection with such production order''; and (B) by striking the second sentence; (2) by striking subparagraph (C) and inserting the following new subparagraph: ``(C) A judge considering a petition to modify or set aside a nondisclosure order shall grant such petition unless the court determines that-- ``(i) there is reason to believe that disclosure of the information subject to the nondisclosure requirement during the applicable time period will result in-- ``(I) endangering the life or physical safety of any person; ``(II) flight from prosecution; ``(III) destruction of or tampering with evidence; ``(IV) intimidation of potential witnesses; ``(V) interference with diplomatic relations; or ``(VI) otherwise seriously endangering the national security of the United States by alerting a target, an associate of a target, or the foreign power of which the target is an agent, of the interest of the Government in the target; ``(ii) the harm identified under clause (i) relates to the authorized investigation to which the tangible things sought are relevant; and ``(iii) the nondisclosure requirement is narrowly tailored to address the specific harm identified under clause (i).''; and (3) by adding at the end the following new subparagraph: ``(E) If a judge denies a petition to modify or set aside a nondisclosure order under this paragraph, no person may file another petition to modify or set aside such nondisclosure order until the date that is one year after the date on which such judge issues the denial of such petition.''. SEC. 102. EMERGENCY AUTHORITY FOR ACCESS TO CALL DATA RECORDS. (a) In General.--Section 403 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1843) is amended by adding at the end the following: ``(e)(1) Notwithstanding any other provision of this subsection, the Attorney General may require the production of call data records by the provider of a wire or electronic communication service on an emergency basis if-- ``(A) such records-- ``(i) are relevant to an authorized investigation (other than a threat assessment) conducted in accordance with section 402 or 501, as appropriate, to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities; and ``(ii) pertain to-- ``(I) a foreign power or an agent of a foreign power; ``(II) the activities of a suspected agent of a foreign power who is the subject of such authorized investigation; or ``(III) an individual in contact with, or known to, a suspected agent of a foreign power; ``(B) the Attorney General reasonably determines-- ``(i) an emergency requires the production of such records before an order requiring such production can with due diligence be obtained under section 402 or 501, as appropriate; and ``(ii) the factual basis for issuance of an order under section 402 or 501, as appropriate, to require the production of such records exists; ``(C) a judge referred to in section 402(b) or 501(b)(1), as appropriate, is informed by the Attorney General at the time of the required production of such records that the decision has been made to require such production on an emergency basis; and ``(D) an application in accordance with section 402 or 501, as appropriate, is made to such judge as soon as practicable, but not more than 7 days after the date on which the Attorney General requires the production of such records under this subsection. ``(2)(A) In the absence of an order issued under section 402 or 501, as appropriate, to approve the emergency required production of call data records under paragraph (1), the authority to require the production of such records shall terminate at the earlier of-- ``(i) when the information sought is obtained; ``(ii) when the application for the order is denied under section 402 or 501, as appropriate; or ``(iii) 7 days after the time of the authorization by the Attorney General. ``(B) If an application for an order applied for under section 402 or 501, as appropriate, for the production of call data records required to be produced pursuant to paragraph (1) is denied, or in any other case where the emergency production of call data records under this section is terminated and no order under section 402 or 501, as appropriate, is issued approving the required production of such records, no information obtained or evidence derived from such records shall be received in evidence or otherwise disclosed in any trial, hearing, or other proceeding in or before any court, grand jury, department, office, agency, regulatory body, legislative committee, or other authority of the United States, a State, or political subdivision thereof, and no information concerning any United States person acquired from such records shall subsequently be used or disclosed in any other manner by Federal officers or employees without the consent of such person, except with the approval of the Attorney General if the information indicates a threat of death or serious bodily harm to any person.''. (b) Termination of Section 501 References.--On the date that section 102(b)(1) of the USA PATRIOT Improvement and Reauthorization Act of 2005 (Public Law 109-177; 50 U.S.C. 1805 note) takes effect, subsection (e) of section 403 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1843), as added by paragraph (1), is amended-- (1) by striking ``or section 501, as appropriate,'' each place that term appears; (2) in paragraph (1)-- (A) in subparagraph (B), by striking ``or 501, as appropriate;'' and by inserting a semicolon; and (B) in subparagraph (C), by striking ``or 501(b)(1), as appropriate,''; and (3) in paragraph (2)(A)(ii), by striking ``or 501, as appropriate;'' and by inserting a semicolon. [[Page S3412]] SEC. 103. CHALLENGES TO GOVERNMENT SURVEILLANCE. (a) In General.--Title V of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1861 et seq.) is amended by adding at the end the following: ``SEC. 503. CHALLENGES TO ORDERS TO PRODUCE CERTAIN BUSINESS RECORDS. ``(a) Appeal.-- ``(1) In general.--A person who is required to produce any tangible thing pursuant to an order issued under section 501 may appeal the order to a United States court of appeals on the basis that the order violates the Constitution of the United States. ``(2) Venue.--An appeal filed pursuant to paragraph (1) may be filed-- ``(A) in the United States court of appeals for a circuit embracing a judicial district in which venue would be proper for a civil action under section 1391 of title 28, United States Code; or ``(B) United States Court of Appeals for the District of Columbia. ``(b) Supreme Court Review.--A person may seek a writ of certiorari from the Supreme Court of the United States for review of a decision of an appeal filed under subsection (a)(1).''. (b) Table of Contents Amendment.--The table of contents in the first section of the Foreign Intelligence Surveillance Act of 1978 is amended by adding after the item relating to section 502 the following: ``Sec. 503. Challenges to orders to produce certain business records.''. TITLE II--PRIVACY PROTECTIONS FOR PEN REGISTERS AND TRAP AND TRACE DEVICES SEC. 201. PRIVACY PROTECTIONS FOR PEN REGISTERS AND TRAP AND TRACE DEVICES. (a) Application.--Section 402(c) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1842(c)) is amended-- (1) in paragraph (1), by striking ``and'' at the end; and (2) by striking paragraph (2) and inserting the following new paragraphs: ``(2) a statement of facts showing that there are reasonable grounds to believe that the records sought-- ``(A) are relevant to an authorized investigation to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities (other than a threat assessment), provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution; and ``(B) pertain to-- ``(i) a foreign power or an agent of a foreign power; ``(ii) the activities of a suspected agent of a foreign power who is the subject of such authorized investigation; or ``(iii) an individual in contact with, or known to, a suspected agent of a foreign power; and ``(3) a statement of proposed minimization procedures.''. (b) Minimization.-- (1) Definition.--Section 401 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1841) is amended by adding at the end the following: ``(4) The term `minimization procedures' means-- ``(A) specific procedures that are reasonably designed in light of the purpose and technique of an order for the installation and use of a pen register or trap and trace device, to minimize the acquisition and retention, and prohibit the dissemination, of nonpublicly available information concerning unconsenting United States persons consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence information; ``(B) procedures that require that nonpublicly available information, which is not foreign intelligence information, as defined in section 101(e)(1), shall not be disseminated in a manner that identifies any United States person, without such person's consent, unless such person's identity is necessary to understand foreign intelligence information or assess its importance; and ``(C) notwithstanding subparagraphs (A) and (B), procedures that allow for the retention and dissemination of information that is evidence of a crime which has been, is being, or is about to be committed and that is to be retained or disseminated for law enforcement purposes.''. (2) Pen registers and trap and trace devices.--Section 402 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1842) is amended-- (A) in subsection (d)-- (i) in paragraph (1), by inserting ``, and that the proposed minimization procedures meet the definition of minimization procedures under this title'' before the period at the end; and (ii) in paragraph (2)(B)-- (I) in clause (ii)(II), by striking ``and'' after the semicolon; and (II) by adding at the end the following: ``(iv) the minimization procedures be followed; and''; and (B) by adding at the end the following: ``(h) At or before the end of the period of time for which the installation and use of a pen register or trap and trace device is approved under an order or an extension under this section, the judge may assess compliance with the minimization procedures by reviewing the circumstances under which information concerning United States persons was acquired, retained, or disseminated.''. (3) Emergencies.--Section 403 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1843), as amended by section 102(a), is further amended-- (A) by redesignating subsection (c) as (d); and (B) by inserting after subsection (b) the following: ``(c) If the Attorney General authorizes the emergency installation and use of a pen register or trap and trace device under this section, the Attorney General shall require that minimization procedures required by this title for the issuance of a judicial order be followed.''. (4) Use of information.--Section 405(a)(1) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1845(a)(1)) is amended by striking the period at the end and inserting ``and the minimization procedures required under the order approving such pen register or trap and trace device.''. TITLE III--PROCEDURES FOR TARGETING CERTAIN PERSONS OUTSIDE THE UNITED STATES OTHER THAN UNITED STATES PERSONS SEC. 301. CLARIFICATION ON PROHIBITION ON SEARCHING OF COLLECTIONS OF COMMUNICATIONS TO CONDUCT WARRANTLESS SEARCHES FOR THE COMMUNICATIONS OF UNITED STATES PERSONS. Section 702(b) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1881a(b)) is amended-- (1) by redesignating paragraphs (1) through (5) as subparagraphs (A) through (E), respectively, and indenting such subparagraphs, as so redesignated, an additional two ems from the left margin; (2) by striking ``An acquisition'' and inserting the following: ``(1) In general.--An acquisition''; and (3) by adding at the end the following: ``(2) Clarification on prohibition on searching of collections of communications of united states persons.-- ``(A) In general.--Except as provided in subparagraph (B), no officer or employee of the United States may conduct a search of a collection of communications acquired under this section in an effort to find communications of a particular United States person (other than a corporation). ``(B) Concurrent authorization and exception for emergency situations.--Subparagraph (A) shall not apply to a search for communications related to a particular United States person if-- ``(i) such United States person is the subject of an order or emergency authorization authorizing electronic surveillance or physical search under section 105, 304, 703, 704, or 705 of this Act, or under title 18, United States Code, for the effective period of that order; ``(ii) the entity carrying out the search has a reasonable belief that the life or safety of such United States person is threatened and the information is sought for the purpose of assisting that person; or ``(iii) such United States person has consented to the search.''. SEC. 302. PROTECTION AGAINST COLLECTION OF WHOLLY DOMESTIC COMMUNICATIONS NOT CONCERNING TERRORISM UNDER FISA AMENDMENTS ACT. (a) In General.--Section 702 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1881a) is amended-- (1) in subsection (d)(1)-- (A) in subparagraph (A), by striking ``and'' at the end; (B) in subparagraph (B), by striking the period at the end and inserting ``; and''; and (C) by adding at the end the following new subparagraph: ``(C) limit the acquisition of the contents of any communication to communications to which any party is a target of the acquisition or communications that refer to the target of the acquisition, if such communications are acquired to protect against international terrorism.''; and (2) in subsection (i)(2)(B)-- (A) in clause (i), by striking ``and'' at the end; (B) in clause (ii), by striking the period at the end and inserting ``; and''; and (C) by adding at the end the following new clause: ``(iii) limit the acquisition of the contents of any communication to communications to which any party is a target of the acquisition or communications that refer to the target of the acquisition, if such communications are acquired to protect against international terrorism.''. (b) Conforming Amendment.--Section 701(a) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1881(a)) is amended by inserting `` `international terrorism','' after `` `foreign power',''. SEC. 303. PROHIBITION ON REVERSE TARGETING UNDER FISA AMENDMENTS ACT. Section 702 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1881a), as amended by sections 301 and 302 of this Act, is further amended-- (1) in paragraph (1)(B) of subsection (b), as redesignated by section 301, by striking ``the purpose'' and inserting ``a significant purpose''; (2) in subsection (d)(1)(A)-- (A) by striking ``ensure that'' and inserting the following: ``ensure-- ``(i) that''; and [[Page S3413]] (B) by adding at the end the following: ``(ii) that an application is filed under title I, if otherwise required, when a significant purpose of an acquisition authorized under subsection (a) is to acquire the communications of a particular, known person reasonably believed to be located in the United States; and''; (3) in subsection (g)(2)(A)(i)(I)-- (A) by striking ``ensure that'' and inserting the following: ``ensure-- ``(aa) that''; and (B) by adding at the end the following: ``(bb) that an application is filed under title I, if otherwise required, when a significant purpose of an acquisition authorized under subsection (a) is to acquire the communications of a particular, known person reasonably believed to be located in the United States; and''; and (4) in subsection (i)(2)(B)(i)-- (A) by striking ``ensure that'' and inserting the following: ``ensure-- ``(I) that''; and (B) by adding at the end the following: ``(II) that an application is filed under title I, if otherwise required, when a significant purpose of an acquisition authorized under subsection (a) is to acquire the communications of a particular, known person reasonably believed to be located in the United States; and''. SEC. 304. LIMITS ON USE OF UNLAWFULLY OBTAINED INFORMATION UNDER FISA AMENDMENTS ACT. Section 702(i)(3) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1881a(i)(3)) is amended by striking subparagraph (B) and inserting the following: ``(B) Correction of deficiencies.-- ``(i) In general.--If the Court finds that a certification required by subsection (g) does not contain all of the required elements, or that the procedures required by subsections (d) and (e) are not consistent with the requirements of those subsections or the fourth amendment to the Constitution of the United States, the Court shall issue an order directing the Government to, at the Government's election and to the extent required by the order of the Court-- ``(I) correct any deficiency identified by the order of the Court not later than 30 days after the date on which the Court issues the order; or ``(II) cease, or not begin, the implementation of the authorization for which such certification was submitted. ``(ii) Limitation on use of information.-- ``(I) In general.--Except as provided in subclause (II), no information obtained or evidence derived from an acquisition pursuant to a certification or targeting or minimization procedures subject to an order under clause (i) concerning any United States person shall be received in evidence or otherwise disclosed in any trial, hearing, or other proceeding in or before any court, grand jury, department, office, agency, regulatory body, legislative committee, or other authority of the United States, a State, or political subdivision thereof, and no information concerning any United States person acquired from the acquisition shall subsequently be used or disclosed in any other manner by Federal officers or employees without the consent of the United States person, except with the approval of the Attorney General if the information indicates a threat of death or serious bodily harm to any person. ``(II) Exception.--If the Government corrects any deficiency identified by the order of the Court under clause (i), the Court may permit the use or disclosure of information acquired before the date of the correction under such minimization procedures as the Court shall establish for purposes of this clause.''. SEC. 305. CHALLENGES TO GOVERNMENT SURVEILLANCE. Section 702 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1881a), as amended by this title, is further amended by adding at the end the following new subsection: ``(m) Challenges to Government Surveillance.-- ``(1) Injury in fact.--In any claim in a civil action brought in a court of the United States relating to surveillance conducted under this section, the person asserting the claim has suffered an injury in fact if the person-- ``(A) has a reasonable basis to believe that the person's communications will be acquired under this section; and ``(B) has taken objectively reasonable steps to avoid surveillance under this section. ``(2) Reasonable basis.--A person shall be presumed to have demonstrated a reasonable basis to believe that the communications of the person will be acquired under this section if the profession of the person requires the person regularly to communicate foreign intelligence information with persons who-- ``(A) are not United States persons; and ``(B) are located outside the United States. ``(3) Objective steps.--A person shall be presumed to have taken objectively reasonable steps to avoid surveillance under this section if the person demonstrates that the steps were taken in reasonable response to rules of professional conduct or analogous professional rules.''. TITLE IV--FOREIGN INTELLIGENCE SURVEILLANCE COURT REFORMS SEC. 401. DEFINITIONS. In this title: (1) Constitutional advocate.--The term ``Constitutional Advocate'' means the Constitutional Advocate appointed under section 402(b). (2) Decision.--The term ``decision'' means a decision, order, or opinion issued by the FISA Court or the FISA Court of Review. (3) FISA.--The term ``FISA'' means the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.). (4) FISA court.--The term ``FISA Court'' means the court established under section 103(a) of FISA (50 U.S.C. 1803(a)). (5) FISA court of review.--The term ``FISA Court of Review'' means the court of review established under section 103(b) of FISA (50 U.S.C. 1803(b)). (6) Office.--The term ``Office'' means the Office of the Constitutional Advocate established under section 402(a). (7) Petition review pool.--The term ``petition review pool'' means the petition review pool established by section 103(e) of FISA (50 U.S.C. 1803(e)) or any member of that pool. (8) Significant construction or interpretation of law.--The term ``significant construction or interpretation of law'' means a significant construction or interpretation of a provision, as that term is construed under section 601(c) of FISA (50 U.S.C. 1871(c)). SEC. 402. OFFICE OF THE CONSTITUTIONAL ADVOCATE. (a) Establishment.--There is established within the judicial branch of the United States an Office of the Constitutional Advocate. (b) Constitutional Advocate.-- (1) In general.--The head of the Office is the Constitutional Advocate. (2) Appointment and term.-- (A) Appointment.--The Chief Justice of the United States shall appoint the Constitutional Advocate from the list of candidates submitted under subparagraph (B). (B) Candidates.-- (i) List of candidates.--The Privacy and Civil Liberties Oversight Board shall submit to the Chief Justice a list of not less than 5 qualified candidates to serve as a Constitutional Advocate. (ii) Selection of candidates.--In preparing a list described in clause (i), the Privacy and Civil Liberties Oversight Board shall select candidates the Board believes will be zealous and effective advocates in defense of civil liberties and consider each potential candidate's-- (I) litigation and other professional experience; (II) experience with the areas of law the Constitutional Advocate is likely to encounter in the course of the Advocate's duties; and (III) demonstrated commitment to civil liberties. (C) Security clearance.--An individual may be appointed Constitutional Advocate without regard to whether the individual possesses a security clearance on the date of the appointment. (D) Term and dismissal.--A Constitutional Advocate shall be appointed for a term of 3 years and may be fired only for good cause shown, including the demonstrated inability to qualify for an adequate security clearance. (E) Reappointment.--There shall be no limit to the number of consecutive terms served by a Constitutional Advocate. The reappointment of a Constitutional Advocate shall be made in the same manner as appointment of a Constitutional Advocate. (F) Acting constitutional advocate.--If the position of Constitutional Advocate is vacant, the Chief Justice may appoint an Acting Constitutional Advocate from among the qualified employees of the Office. If there are no such qualified employees, the Chief Justice may appoint an Acting Constitutional Advocate from the most recent list of candidates provided by the Privacy and Civil Liberties Oversight Board pursuant to subparagraph (B). The Acting Constitutional Advocate shall have all of the powers of a Constitutional Advocate and shall serve until a Constitutional Advocate is appointed. (3) Employees.--The Constitutional Advocate is authorized, without regard to the civil service laws and regulations, to appoint and terminate employees of the Office. (c) Security Clearances.--The appropriate departments, agencies, and elements of the executive branch shall cooperate with the Office, to the extent possible under existing procedures and requirements, to expeditiously provide the Constitutional Advocate and appropriate employees of the Office with the security clearances necessary to carry out the duties of the Constitutional Advocate. (d) Duties and Authorities of the Constitutional Advocate.-- (1) In general.--The Constitutional Advocate-- (A) shall review each application to the FISA Court by the Attorney General; (B) shall review each decision of the FISA Court, the petition review pool, or the FISA Court of Review issued after the date of the enactment of this Act and all documents and other material relevant to such decision in a complete, unredacted form; (C) may participate in a proceeding before the petition review pool if such participation is requested by a party in such a proceeding or by the petition review pool; (D) shall consider any request from a provider who has been served with an order, certification, or directive compelling the provider to provide assistance to the Government or to release customer information to assist that provider in a proceeding before [[Page S3414]] the FISA Court or the petition review pool, including a request-- (i) to oppose the Government on behalf of the private party in such a proceeding; or (ii) to provide guidance to the private party if the private party is considering compliance with an order of the FISA Court; (E) shall participate in a proceeding before the FISA Court if appointed to participate by the FISA Court under section 403(a) and may participate in a proceeding before the petition review pool if authorized under section 404(a); (F) may request to participate in a proceeding before the FISA Court or the petition review pool; (G) shall participate in such a proceeding if such request is granted; (H) may request reconsideration of a decision of the FISA Court under section 403(b); (I) may appeal or seek review of a decision of the FISA Court, the petition review pool, or the FISA Court of Review, as permitted by this title; and (J) shall participate in such appeal or review. (2) Advocacy.--The Constitutional Advocate shall protect individual rights by vigorously advocating before the FISA Court, the petition review pool, or the FISA Court of Review, as appropriate, in support of legal interpretations that minimize the scope of surveillance and the extent of data collection and retention. (3) Utilization of outside counsel.--The Constitutional Advocate-- (A) may delegate to a competent outside counsel any duty or responsibility of the Constitutional Advocate with respect to participation in a matter before the FISA Court, the FISA Court of Review, or the Supreme Court of the United States; and (B) may not delegate to outside counsel any duty or authority set out in subparagraph (A), (B), (D), (F), (H), or (I) of paragraph (1). (4) Availability of documents and material.--The FISA Court, the petition review pool, or the FISA Court of Review, as appropriate, shall order any agency, department, or entity to make available to the Constitutional Advocate, or appropriate outside counsel if utilized by the Constitutional Advocate under paragraph (3), any documents or other material necessary to carry out the duties described in paragraph (1). SEC. 403. ADVOCACY BEFORE THE FISA COURT. (a) Appointment To Participate.-- (1) In general.--The FISA Court may appoint the Constitutional Advocate to participate in a FISA Court proceeding. (2) Standing.--If the Constitutional Advocate is appointed to participate in a FISA Court proceeding pursuant to paragraph (1), the Constitutional Advocate shall have standing as a party before the FISA Court in that proceeding. (b) Reconsideration of a FISA Court Decision.-- (1) Authority to move for reconsideration.--The Constitutional Advocate may move the FISA Court to reconsider any decision of the FISA Court made after the date of the enactment of this Act by petitioning the FISA Court not later than 30 days after the date on which all documents and materials relevant to the decision are made available to the Constitutional Advocate. (2) Discretion of the fisa court.--The FISA Court shall have discretion to grant or deny a motion for reconsideration made pursuant to paragraph (1). (c) Amicus Curiae Participation.-- (1) Motion by the constitutional advocate.--The Constitutional Advocate may file a motion with the FISA Court to permit and facilitate participation of amicus curiae, including participation in oral argument if appropriate, in any proceeding. The FISA Court shall have the discretion to grant or deny such a motion. (2) Facilitation by the fisa court.--The FISA Court may, sua sponte, permit and facilitate participation by amicus curiae, including participation in oral argument if appropriate, in proceedings before the FISA Court. (3) Regulations.--Not later than 180 days after the date of the enactment of this Act, the FISA Court shall promulgate rules to provide the public with information sufficient to allow interested parties to participate as amicus curiae. SEC. 404. ADVOCACY BEFORE THE PETITION REVIEW POOL. (a) Authority To Participate.--The petition review pool or any party to a proceeding before the petition review pool may authorize the Constitutional Advocate to participate in a petition review pool proceeding. (b) Reconsideration of a Petition Review Pool Decision.-- (1) Authority to move for reconsideration.--The Constitutional Advocate may move the petition review pool to reconsider any decision of the petition review pool made after the date of the enactment of this Act by petitioning the petition review pool not later than 30 days after the date on which all documents and materials relevant to the decision are made available to the Constitutional Advocate. (2) Discretion of the petition review pool.--The petition review pool shall have discretion to grant or deny a motion for reconsideration made pursuant to paragraph (1). (c) Amicus Curiae Participation.-- (1) Motion by the constitutional advocate.--The Constitutional Advocate may file a motion with the petition review pool to permit and facilitate participation of amicus curiae, including participation in oral argument if appropriate, in any proceeding. The petition review pool shall have the discretion to grant or deny such a motion. (2) Facilitation by the fisa court.--The petition review pool may, sua sponte, permit and facilitate participation by amicus curiae, including participation in oral argument if appropriate, in proceedings before the petition review pool. (3) Regulations.--Not later than 180 days after the date of the enactment of this Act, the petition review pool shall promulgate rules to provide the public with information sufficient to allow interested parties to participate as amicus curiae. SEC. 405. APPELLATE REVIEW. (a) Appeal of FISA Court Decisions.-- (1) Authority to appeal.--The Constitutional Advocate may appeal any decision of the FISA Court or the petition review pool issued after the date of the enactment of this Act not later than 90 days after the date the decision is issued, unless it would be apparent to all reasonable jurists that such decision is dictated by statute or by precedent handed down after such date of enactment. (2) Standing as appellant.--If the Constitutional Advocate appeals a decision of the FISA Court or the petition review pool pursuant to paragraph (1), the Constitutional Advocate shall have standing as a party before the FISA Court of Review in such appeal. (3) Mandatory review.--The FISA Court of Review shall review any FISA Court or petition review pool decision appealed by the Constitutional Advocate and issue a decision in such appeal. (4) Standard of review.--The standards for a mandatory review of a FISA Court or petition review pool decision pursuant to paragraph (3) shall be-- (A) de novo with respect to issues of law; and (B) clearly erroneous with respect to determination of facts. (5) Amicus curiae participation.-- (A) In general.--The FISA Court of Review shall accept amicus curiae briefs from interested parties in all mandatory reviews pursuant to paragraph (3) and shall provide for amicus curiae participation in oral argument if appropriate. (B) Regulations.--Not later than 180 days after the date of the enactment of this Act, the FISA Court of Review shall promulgate rules to provide the public with information sufficient to allow interested parties to participate as amicus curiae. (b) Review of FISA Court of Review Decisions.-- (1) Authority.--The Constitutional Advocate may seek a writ of certiorari from the Supreme Court of the United States for review of any decision of the FISA Court of Review. (2) Standing.--In any proceedings before the Supreme Court of the United States relating to a petition of certiorari filed under paragraph (1) and any proceedings in a matter for which certiorari is granted, the Constitutional Advocate shall have standing as a party. SEC. 406. DISCLOSURE. (a) Requirement To Disclose.--The Attorney General shall publicly disclose-- (1) all decisions issued by the FISA Court, the petition review pool, or the FISA Court of Review after July 10, 2003, that include a significant construction or interpretation of law; (2) any decision of the FISA Court or the petition review pool appealed by the Constitutional Advocate pursuant to this title; and (3) any FISA Court of Review decision that is issued after an appeal by the Constitutional Advocate. (b) Disclosure Described.--For each disclosure required by subsection (a) with respect to a decision, the Attorney General shall make available to the public documents sufficient-- (1) to identify with particularity each legal question addressed by the decision and how such question was resolved; (2) to describe in general terms the context in which the matter arises; (3) to describe the construction or interpretation of any statute, constitutional provision, or other legal authority relied on by the decision; and (4) to indicate whether the decision departed from any prior decision of the FISA Court, the petition review pool, or the FISA Court of Review. (c) Documents Described.--The Attorney General shall satisfy the disclosure requirements in subsection (b) by-- (1) releasing a FISA Court, petition review pool, or FISA Court of Review decision in its entirety or as redacted; (2) releasing a summary of a FISA Court, petition review pool, or FISA Court of Review decision; or (3) releasing an application made to the FISA Court, a petition made to the petition review pool, briefs filed before the FISA Court, the petition review pool, or the FISA Court of Review, or other materials, in full or as redacted. (d) Extensive Disclosure.--The Attorney General shall release as much information regarding the facts and analysis contained in a decision described in subsection (a) or documents described in subsection (c) as is consistent with legitimate national security concerns. (e) Timing of Disclosure.-- [[Page S3415]] (1) Decisions issued prior to enactment.--A decision issued prior to the date of the enactment of this Act that is required to be disclosed under subsection (a)(1) shall be disclosed not later than 180 days after the date of the enactment of this Act. (2) FISA court and petition review pool decisions.--The Attorney General shall release FISA Court or petition review pool decisions appealed by the Constitutional Advocate not later than 30 days after the date the appeal is filed. (3) FISA court of review decisions.--The Attorney General shall release FISA Court of Review decisions appealed by the Constitutional Advocate not later than 90 days after the date the appeal is filed. (f) Petition by the Constitutional Advocate.-- (1) Authority to petition.--The Constitutional Advocate may petition the FISA Court, the petition review pool, or the FISA Court of Review to order-- (A) the public disclosure of a decision of such a Court or review pool, and documents or other material relevant to such a decision, previously designated as classified information; or (B) the release of an unclassified summary of such decisions and documents. (2) Contents of petition.--Each petition filed under paragraph (1) shall contain a detailed declassification proposal or a summary of the decision and documents that the Constitutional Advocate proposes to have released publicly. (3) Role of the attorney general.-- (A) Copy of petition.--The Constitutional Advocate shall provide to the Attorney General a copy of each petition filed under paragraph (1). (B) Opposition.--The Attorney General may oppose a petition filed under paragraph (1) by submitting any objections in writing to the FISA Court, the petition review pool, or the FISA Court of Review, as appropriate, not later than 90 days after the date such petition was submitted. (4) Public availability.--Not less than 91 days after receiving a petition under paragraph (1), and taking into account any objections from the Attorney General made under paragraph (3)(B), the FISA Court, the petition review pool, or the FISA Court of Review, as appropriate, shall declassify and make readily available to the public any decision, document, or other material requested in such petition, to the greatest extent possible, consistent with legitimate national security considerations. (5) Effective date.--The Constitutional Advocate may not file a petition under paragraph (1) until 181 days after the date of the enactment of this Act, except with respect to a decision appealed by the Constitutional Advocate. SEC. 407. ANNUAL REPORT TO CONGRESS. (a) Requirement for Annual Report.--The Constitutional Advocate shall submit to Congress an annual report on the implementation of this title. (b) Contents.--Each annual report submitted under subsection (a) shall-- (1) detail the activities of the Office; (2) provide an assessment of the effectiveness of this title; and (3) propose any new legislation to improve the functioning of the Office or the operation of the FISA Court, the petition review pool, or the FISA Court of Review. SEC. 408. PRESERVATION OF RIGHTS. Nothing in this title shall be construed-- (1) to provide the Attorney General with authority to prevent the FISA Court, the petition review pool, or the FISA Court of Review from declassifying decisions or releasing information pursuant to this title; and (2) to eliminate the public's ability to secure information under section 552 of title 5, United States Code (commonly known as the ``Freedom of Information Act'') or any other provision of law. TITLE V--NATIONAL SECURITY LETTER REFORMS SEC. 501. NATIONAL SECURITY LETTER AUTHORITY. (a) National Security Letter Authority for Communications Subscriber Records.-- (1) In general.--Section 2709(b) of title 18, United States Code, is amended by amending paragraphs (1) and (2) to read as follows: ``(1) request the name, address, length of service, and local and long distance toll billing records of a person or entity if the Director (or the Director's designee) certifies in writing to the wire or electronic communication service provider to which the request is made that-- ``(A) the name, address, length of service, and toll billing records sought are relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities, provided that such an investigation of a United States person is not conducted solely on the basis of activities protected by the first amendment to the Constitution of the United States; and ``(B) there are specific and articulable facts showing that there are reasonable grounds to believe that the name, address, length of service, and toll billing records sought-- ``(i) pertain to a foreign power or agent of a foreign power; ``(ii) are relevant to the activities of a suspected agent of a foreign power who is the subject of such authorized investigation; or ``(iii) pertain to an individual in contact with, or known to, a suspected agent; and ``(2) request the name, address, and length of service of a person or entity if the Director (or the Director's designee) certifies in writing to the wire or electronic communication service provider to which the request is made that-- ``(A) the information sought is relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities, provided that such an investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution of the United States; and ``(B) there are specific and articulable facts showing that there are reasonable grounds to believe that the information sought pertains to-- ``(i) a foreign power or agent of a foreign power; ``(ii) the activities of a suspected agent of a foreign power who is the subject of such authorized investigation; or ``(iii) an individual in contact with, or known to, a suspected agent.''. (b) National Security Letter Authority for Certain Financial Records.--Section 1114 of the Right to Financial Privacy Act of 1978 (12 U.S.C. 3414) is amended to read as follows: ``SEC. 1114. NATIONAL SECURITY LETTER FOR CERTAIN FINANCIAL RECORDS. ``(a) Authorization.-- ``(1) In general.--The Director of the Federal Bureau of Investigation, or a designee of the Director whose rank shall be no lower than Deputy Assistant Director at Bureau headquarters or Special Agent in Charge in a Bureau field office, or the Director of the United States Secret Service may issue in writing and cause to be served on a financial institution, a National Security Letter requiring the production of-- ``(A) the name of a customer of the financial institution; ``(B) the address of a customer of the financial institution; ``(C) the length of time during which a person has been, or was, a customer of the financial institution (including the start date) and the type of service provided by the institution to the customer; and ``(D) any account number or other unique identifier associated with a customer of the financial institution. ``(2) Limitation.--A National Security Letter issued under this subsection may not require the production of records or information not listed in paragraph (1). ``(b) National Security Letter Requirements.-- ``(1) In general.--A National Security Letter issued under subsection (a) shall-- ``(A) be subject to the requirements of subsections (b) through (f) of section 2709 of title 18, United States Code, in the same manner and to the same extent as those provisions apply with respect to a request under section 2709(b) of title 18, United States Code, to a wire or electronic communication service provider; ``(B)(i) in the case of a National Security Letter issued by the Director of the Federal Bureau of Investigation or the Director's designee, include a statement of facts showing that there are reasonable grounds to believe that the records or other things sought-- ``(I) are relevant to an authorized investigation (other than a threat assessment) to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities; and ``(II) pertain to-- ``(aa) a foreign power or an agent of a foreign power; ``(bb) the activities of a suspected agent of a foreign power who is the subject of such authorized investigation; or ``(cc) an individual in contact with, or known to, a suspected agent of a foreign power; and ``(ii) in the case of a National Security Letter issued by the Director of the United States Secret Service, include a statement of facts showing that there are reasonable grounds to believe that the records or other things sought are relevant to the conduct of the protective functions of the United States Secret Service. ``(2) Reporting.--On a semiannual basis the Director of the Federal Bureau of Investigation and the Director of the United States Secret Service shall fully inform the Select Committee on Intelligence, the Committee on the Judiciary, and the Committee on Banking, Housing, and Urban Affairs of the Senate and the Permanent Select Committee on Intelligence, the Committee on the Judiciary, and the Committee on Financial Services of the House of Representatives, concerning all requests made under subsection (a). ``(3) Definitions.--For purposes of this subsection, the terms `agent of a foreign power', `international terrorism', `foreign intelligence information', and `United States person' have the same meanings as in section 101 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801). ``(c) Definition of `Financial Institution'.--For purposes of this section (and sections 1115 and 1117, insofar as the sections relate to the operation of this section), the term `financial institution' has the same meaning as in subsections (a)(2) and (c)(1) of section 5312 of title 31, United States Code, except that the term shall include only a financial institution any part of which is located inside any State or territory of the United States, the District of Columbia, Puerto Rico, Guam, American Samoa, the Commonwealth of the Northern Mariana Islands, or the United States Virgin Islands.''. [[Page S3416]] (c) National Security Letter Authority for Certain Consumer Report Records.-- (1) In general.--Section 626 of the Fair Credit Reporting Act (15 U.S.C. 1681u) is amended-- (A) by striking the section heading and inserting the following: ``Sec. 626. National Security Letters for certain consumer report records''; (B) by striking subsections (a) through (d) and inserting the following: ``(a) Authorization.-- ``(1) In general.--The Director of the Federal Bureau of Investigation, or a designee of the Director whose rank shall be no lower than Deputy Assistant Director at Bureau headquarters or Special Agent in Charge in a Bureau field office, may issue in writing and cause to be served on a consumer reporting agency a National Security Letter requiring the production of-- ``(A) the name of a consumer; ``(B) the current and former address of a consumer; ``(C) the current and former places of employment of a consumer; and ``(D) the name and address of any financial institution (as that term is defined in section 1101 of the Right to Financial Privacy Act of 1978 (12 U.S.C. 3401)) at which a consumer maintains or has maintained an account, to the extent that the information is in the files of the consumer reporting agency. ``(2) Limitation.--A National Security Letter issued under this subsection may not require the production of a consumer report. ``(b) National Security Letter Requirements.-- ``(1) In general.--A National Security Letter issued under subsection (a) shall-- ``(A) be subject to the requirements of subsections (b) through (f) of section 2709 of title 18, United States Code, in the same manner and to the same extent as those provisions apply with respect to a request under section 2709(b) of title 18, United States Code, to a wire or electronic communication service provider; and ``(B) include a statement of facts showing that there are reasonable grounds to believe that the records or other things sought-- ``(i) are relevant to an authorized investigation (other than a threat assessment) to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities; and ``(ii) pertain to-- ``(I) a foreign power or an agent of a foreign power; ``(II) the activities of a suspected agent of a foreign power who is the subject of such authorized investigation; or ``(III) an individual in contact with, or known to, a suspected agent of a foreign power. ``(2) Reporting.--On a semiannual basis the Director of the Federal Bureau of Investigation shall fully inform the Select Committee on Intelligence, the Committee on the Judiciary, and the Committee on Banking, Housing, and Urban Affairs of the Senate and the Permanent Select Committee on Intelligence, the Committee on the Judiciary, and the Committee on Financial Services of the House of Representatives, concerning all requests made under subsection (a). ``(3) Definitions.--For purposes of this subsection, the terms `agent of a foreign power', `international terrorism', `foreign intelligence information', and `United States person' have the same meanings as in section 101 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801).''; (C) by striking subsections (f) through (h); and (D) by redesignating subsections (e) and (i) through (m) as subsections (c) through (h), respectively. (2) Repeal.--Section 627 of the Fair Credit Reporting Act (15 U.S.C. 1681v) is repealed. (d) Technical and Conforming Amendment.-- (1) Table of sections amendment.--The table of sections for the Fair Credit Reporting Act (15 U.S.C. 1681 et seq.) is amended by striking the items relating to sections 626 and 627 and inserting the following: ``626. National Security Letters for certain consumer report records. ``627. [Repealed].''. (2) Conforming amendments.-- (A) Notice requirements.--Section 1109 of the Right to Financial Privacy Act of 1978 (12 U.S.C. 3409) is amended by striking subsection (c). (B) Title 18, united states code.--Title 18, United States Code, is amended-- (i) in section 1510(e), by striking ``section 626(d)(1) or 627(c)(1) of the Fair Credit Reporting Act (15 U.S.C. 1681u(d)(1) or 1681v(c)(1)), section 1114(a)(3)(A) or 1114(a)(5)(D)(i) of the Right to Financial Privacy Act (12 U.S.C. 3414(a)(3)(A) or 3414(a)(5)(D)(i)),'' and inserting ``section 626 of the Fair Credit Reporting Act (15 U.S.C. 1681u), section 1114 of the Right to Financial Privacy Act of 1978 (12 U.S.C. 3414),''; and (ii) in section 3511-- (I) by striking ``section 1114(a)(5)(A) of the Right to Financial Privacy Act,'' each place that term appears and inserting ``section 1114 of the Right to Financial Privacy Act of 1978 (12 U.S.C. 3414),''; and (II) by striking ``or section 627(a)'' each place that term appears. (C) National security act of 1947.--Section 507(b) of the National Security Act of 1947 (50 U.S.C. 3106(b)) is amended-- (i) in paragraph (2), by striking ``section 626(h)(2) of the Fair Credit Reporting Act (15 U.S.C. 1681u(h)(2)).'' and inserting ``section 626(b)(2) of the Fair Credit Reporting Act (15 U.S.C. 1681u(b)(2)).''; and (ii) in paragraph (3), by striking ``section 1114(a)(5)(C) of the Right to Financial Privacy Act of 1978 (12 U.S.C. 3414(a)(5)(C)).'' and inserting ``section 1114(b)(2) of the Right to Financial Privacy Act of 1978 (12 U.S.C. 3414(b)(2)).''. (D) USA patriot act.-- (i) Section 118.--Section 118 of the USA PATRIOT Improvement and Reauthorization Act of 2005 (Public Law 109- 177; 18 U.S.C. 3511 note) is amended-- (I) in subsection (c)(1)-- (aa) in subparagraph (C), by inserting ``and'' at the end; (bb) in subparagraph (D), by striking ``; and'' and inserting a period; and (cc) by striking subparagraph (E); and (II) in subsection (d)-- (aa) in paragraph (2), by striking ``Section 1114(a)(5)(A) of the Right to Financial Privacy Act (12 U.S.C. 3414(a)(5)(A))'' and inserting ``Section 1114 of the Right to Financial Privacy Act of 1978 (12 U.S.C. 3414)''; and (bb) by striking paragraph (5). (ii) Section 119.--Section 119(g) of the USA PATRIOT Improvement and Reauthorization Act of 2005 (Public Law 109- 177; 120 Stat. 219) is amended-- (I) in paragraph (2), by striking ``Section 1114(a)(5)(A) of the Right to Financial Privacy Act (12 U.S.C. 3414(a)(5)(A))'' and inserting ``Section 1114 of the Right to Financial Privacy Act of 1978 (12 U.S.C. 3414)''; and (II) by striking paragraph (5). SEC. 502. PUBLIC REPORTING ON NATIONAL SECURITY LETTERS. Section 118(c) of the USA PATRIOT Improvement and Reauthorization Act of 2005 (Public Law 109-177; 18 U.S.C. 3511 note), as amended by section 501(d)(2)(D)(i), is further amended-- (1) in paragraph (1)-- (A) in the matter preceding subparagraph (A), by striking ``concerning different United States persons''; and (B) in subparagraph (A), by striking ``, excluding the number of requests for subscriber information''; (2) by redesignating paragraph (2) as paragraph (3); and (3) by inserting after paragraph (1) the following: ``(2) Content.-- ``(A) In general.--Except as provided in subparagraph (B), each report required under this subsection shall include the total number of requests described in paragraph (1) requiring disclosure of information concerning-- ``(i) United States persons; ``(ii) persons who are not United States persons; ``(iii) persons who are the subjects of authorized national security investigations; or ``(iv) persons who are not the subjects of authorized national security investigations. ``(B) Exception.--With respect to the number of requests for subscriber information under section 2709 of title 18, United States Code, a report required under this subsection need not provide information separated into each of the categories described in subparagraph (A).''. TITLE VI--REPORTING FISA ORDERS AND NATIONAL SECURITY LETTERS SEC. 601. THIRD-PARTY REPORTING OF FISA ORDERS AND NATIONAL SECURITY LETTERS. (a) In General.--Each electronic service provider may report information to the public in accordance with this section about requests and demands for information made by any Government entity under a surveillance law, and is exempt in accordance with subsection (d) from liability with respect to that report, even if such provider would otherwise be prohibited by a surveillance law from reporting that information. (b) Periodic Aggregate Reports.--An electronic service provider may report such information not more often than quarterly and only to the following extent: (1) Estimate of numbers of demands and requests made.--The report may reveal an estimate of the number of such demands and requests made during the period to which the report pertains. (2) Estimate of numbers of demands and requests complied with.--The report may reveal an estimate of the numbers of such demands and requests the service provider complied with during the period to which the report pertains, regardless of when the demands or requests were made. (3) Estimate of number of users or accounts.--The report may reveal an estimate of the numbers of users or accounts, or both, of the service provider, for which information was demanded, requested, or provided during the period to which the report pertains. (c) Special Rules for Reports.-- (1) Level of detail by authorizing surveillance law.--Any estimate disclosed under this section may be an overall estimate or broken down by categories of authorizing surveillance laws or by provisions of authorizing surveillance laws. (2) Level of detail by numerical range.--Each estimate disclosed under this section shall be rounded to the nearest 100. If an estimate is zero, an electronic service provider may report the estimate as zero. (3) Report may be broken down by periods not less than calendar quarters.--For any reporting period, the provider may break [[Page S3417]] down the report by calendar quarters or any other time periods greater than a calendar quarter. (d) Limitation on Liability.--An electronic service provider making a report that the provider reasonably believes in good faith is authorized by this section is not criminally or civilly liable in any court for making that report. (e) Rule of Construction.--Nothing in this section shall be construed to prohibit disclosures other than those authorized by this section. (f) Definitions.--In this section: (1) The term ``electronic service provider'' means a provider of an electronic communications service (as that term is defined in section 2510 of title 18, United States Code) or a provider of a remote computing service (as that term is defined in section 2711 of title 18, United States Code). (2) The term ``surveillance law'' means any provision of any of the following: (A) The Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.). (B) Section 802(a) of the National Security Act of 1947 (50 U.S.C. 3162(a)). (C) Section 2709 of title 18, United States Code. (D) Section 1114 of the Right to Financial Privacy Act of 1978 (12 U.S.C. 3414). (E) Subsections (a) or (b) of section 626 of the Fair Credit Reporting Act (15 U.S.C. 1681u). SEC. 602. GOVERNMENT REPORTING OF FISA ORDERS. (a) Electronic Surveillance.--Section 107 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1807) is amended-- (1) by redesignating subsections (a) and (b) as paragraphs (1) and (2), respectively; (2) in the matter preceding paragraph (1) (as redesignated by paragraph (1) of this subsection)-- (A) by striking ``In April'' and inserting ``(a) In April''; and (B) by striking ``Congress'' and inserting ``the Select Committee on Intelligence and the Committee on the Judiciary of the Senate and the Permanent Select Committee on Intelligence and the Committee on the Judiciary of the House of Representatives''; (3) in subsection (a) (as designated by paragraph (2) of this subsection)-- (A) in paragraph (1) (as redesignated by paragraph (1) of this subsection), by striking ``and'' at the end; (B) in paragraph (2) (as so redesignated), by striking the period at the end and inserting a semicolon; and (C) by adding at the end the following new paragraphs: ``(3) the total number of individuals who were subject to electronic surveillance conducted under an order entered under this title, rounded to the nearest 100; and ``(4) the total number of United States persons who were subject to electronic surveillance conducted under an order entered under this title, rounded to the nearest 100.''; and (4) by adding at the end the following new subsection: ``(b)(1) Each report required under subsection (a) shall be submitted in unclassified form. ``(2) Not later than 7 days after a report is submitted under subsection (a), the Attorney General shall make such report publicly available.''. (b) Pen Register and Trap and Trace Devices.--Section 406 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1846) is amended-- (1) in subsection (b)-- (A) in paragraph (2), by striking ``and'' at the end; (B) in paragraph (3), by striking the period at the end and inserting a semicolon; and (C) by adding at the end the following new paragraphs: ``(4) a good faith estimate of the total number of individuals whose electronic or wire communications information was obtained through the use of pen register or trap and trace devices authorized under an order entered under this title, rounded to the nearest 100; and ``(5) a good faith estimate of the total number of United States persons whose electronic or wire communications information was obtained through the use of a pen register or trap and trace devices authorized under an order entered under this title, rounded to the nearest 100.''; and (2) by adding at the end the following new subsection: ``(c)(1) Each report required under subsection (b) shall be submitted in unclassified form. ``(2) Not later than 7 days after a report is submitted under subsection (b), the Attorney General shall make such report publicly available.''. (c) Access to Certain Business Records.--Section 502 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1862) is amended-- (1) in subsection (b)(3), by adding at the end the following new subparagraphs: ``(F) Records concerning electronic communications. ``(G) Records concerning wire communications.''; and (2) in subsection (c)-- (A) in paragraph (1)-- (i) in subparagraph (A), by striking ``and'' at the end; (ii) in subparagraph (B), by striking the period at the end and inserting a semicolon; and (iii) by adding at the end the following new subparagraphs: ``(C) a good faith estimate of the total number of individuals whose tangible things were produced under an order entered under section 501, rounded to the nearest 100; and ``(D) a good faith estimate of the total number of United States persons whose tangible things were produced under an order entered under section 501, rounded to the nearest 100.''; and (B) by adding at the end the following new paragraph: ``(3) Not later than 7 days after the date on which a report is submitted under paragraph (1), the Attorney General shall make such report publicly available.''. (d) Additional Procedures Regarding Certain Persons Outside the United States.--Section 707 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1881f) is amended by adding at the end the following new subsection: ``(c) Additional Annual Report.-- ``(1) Report required.--In April of each year, the Attorney General shall submit to the congressional intelligence committees and the Committees on the Judiciary of the House of Representatives and the Senate a report setting forth with respect to the preceding year-- ``(A) the total number of-- ``(i) directives issued under section 702; ``(ii) orders granted under section 703; and ``(iii) orders granted under section 704; ``(B) good faith estimates of the total number of individuals, rounded to the nearest 100, whose electronic or wire communications or communications records were collected pursuant to-- ``(i) an order granted under section 703; and ``(ii) an order granted under section 704; and ``(C) good faith estimates of the total number, rounded to the nearest 100, of United States persons whose electronic or wire communications or communications records were collected pursuant to-- ``(i) an order granted under section 703; and ``(ii) an order granted under section 704. ``(2) Form.--Each report required under paragraph (1) shall be submitted in unclassified form. ``(3) Public availability.--Not later than 7 days after the date on which a report is submitted under paragraph (1), the Attorney General shall make such report publicly available.''. TITLE VII--OTHER MATTERS SEC. 701. PRIVACY AND CIVIL LIBERTIES OVERSIGHT BOARD SUBPOENA AUTHORITY. Section 1061(g) of the Intelligence Reform and Terrorism Prevention Act of 2004 (42 U.S.C. 2000ee(g)) is amended-- (1) in paragraph (1)(D), by striking ``submit a written request to the Attorney General of the United States that the Attorney General''; (2) by striking paragraph (2); and (3) by redesignating paragraphs (3) and (4) as paragraphs (2) and (3). SEC. 702. SCOPE OF LIABILITY PROTECTION FOR PROVIDING ASSISTANCE TO THE GOVERNMENT. Section 802 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1885a) is amended-- (1) in subsection (a), in the matter preceding paragraph (1), by inserting ``and except as provided in subsection (j),'' after ``law,''; and (2) by adding at the end the following: ``(j) Violation of User Agreements.--Subsection (a) shall not apply to assistance provided by a person if the provision of assistance violates a user agreement, including any privacy policy associated with the user agreement, in effect at the time the assistance is provided between the person and the person relating to whom the assistance was provided.''. ______