Madam President, in just a few weeks, an important but controversial surveillance authority, known as section 702 of the Foreign Intelligence Surveillance Act, will expire. This extraordinary…
Madam President, in just a few weeks, an important but controversial surveillance authority, known as section 702 of the Foreign Intelligence Surveillance Act, will expire. This extraordinary authority was initially presented to Congress as a temporary emergency counterterrorism tool more than 15 years ago. As is often the case with temporary emergency authorities, section 702 is now used for a wide range of foreign intelligence purposes, from countering Russia to stopping the flow of fentanyl into the United States.
Just last month, the Federal Bureau of Investigation revealed that data collected using section 702 allowed the Agency to foil several attacks in recent years, including attacks that would have crippled U.S. critical infrastructure and even threaten the lives of our U.S. servicemembers. And the authority has helped the U.S. uncover atrocities committed by Russia during its ongoing assault on Ukraine.
I have had demonstrations of the 702 authority, and there is no doubt in my mind that it is a valuable tool for collecting foreign intelligence. But this authority raises serious constitutional concerns, as it allows access not just to communications by those who are foreigners but also to the vast databases of Americans' communications without the customary search warrant required by the U.S. Constitution.
This powerful tool--this effective tool on foreign surveillance--has been used, in my mind, improperly to spy on American protesters, from Black Lives Matter to MAGA loyalists.
The FBI has imposed new limits on the authority of FBI agents to search the communications of Americans. But even after implementing these reforms, the FBI still conducted over 200,000 warrantless searches of Americans in just 1 year--more than 500 searches of Americans per day.
Democrats and Republicans alike are rightly concerned. Our Founders understood the danger of unchecked government surveillance and had the wisdom and foresight to enshrine protections for American citizens in the Constitution. The Fourth Amendment to our
Constitution protects Americans from unreasonable search and seizure, particularly those without a warrant based upon probable cause that had been approved by a judge.
I have long raised concerns about section 702's lack of sufficient safeguards to protect these rights, and I have consistently voted against the extension of section 702 without changes. However, I have also said that I would support section 702 if it includes sufficient safeguards to protect Americans from warrantless surveillance.
As chairman of the Senate Judiciary Committee, which has primary jurisdiction over FISA, I have evaluated proposed reforms and carefully considered the administration's views. I have also heard from my colleagues on both sides of the aisle. Existing legislative proposals of the House and Senate go too far for some and not far enough for others.
That is why, today, I am introducing what I hope will be a compromise bill that tries to bridge this divide to protect both our security and our Constitution and guaranteed freedoms.
The Security and Freedom Enhancement Act, or SAFE Act, would enhance our national security by reauthorizing section 702 for 4 more years, while also protecting Americans from warrantless surveillance.
The SAFE Act would require the government to demonstrate to a court that it has probable cause before reading or listening to the private communications of Americans that have been swept up by section 702. Basically, in just a few words to describe the process, if one of our intelligence or law enforcement Agencies suspects that a foreigner is engaged in conduct that is threatening the security of the United States, they call up the records of that foreigner, and if it turns out that foreigner has communicated with an American citizen, the question is, What do you do next? Can you, in any way, monitor that conversation or come up with an investigation of the documents of that American with or without a warrant? That is the fundamental question we are facing here. So the search starts in the right direction, to a foreign source, and ends up dealing with an American--an American, obviously, who has constitutional rights.
The SAFE Act would require the government to demonstrate to a court that it has probable cause, before reading or listening to the private communications of Americans who have been swept up in section 702. However, this requirement will not prevent government agents from searching 702 databases to determine if foreign targets are communicating with Americans, nor will it prevent agents from accessing the communications of those foreign agents.
But if the government wants to review the contents--the contents--of Americans' communication, it would first be required to demonstrate to the Foreign Intelligence Surveillance Court that it has probable cause to do that.
This would not be overly burdensome because a warrant would only be required in cases where the government actually reviews the content of American communications. They estimate that the incidents of American content are 1.58 percent of all 702 searches of Americans.
The SAFE Act also would not require a warrant in cases involving exigent circumstances or cyber security attacks to ensure that there will not be any delay that jeopardizes our national security.
This approach is based on recommendations by the independent Private and Civil Liberties Oversight Board, which we created after 9/11 to ensure that our counterterrorism policies do not violate the constitutional rights of the American people.
The persistent and widespread violation of existing limits on section 702 underscore the importance of court approval, which we will propose.
Better compliance measures within the executive branch are helpful, but they are no substitute for checks and balances by the judicial branch, as the Founders intended.
The SAFE Act, which I am introducing, is a sensible, moderate compromise between more robust reform proposals that address a wide range of surveillance concerns and bills that reauthorize section 702 without adequately addressing these concerns.
I know that compromise does not come easy when it comes to this policy, but a reasonable middle ground that protects our national security and the rights of the American people is possible. The SAFE Act is my offer in compromise to achieve that goal.
With the April 19 sunset of section 702 fast approaching, I urge my colleagues on both sides of the aisle to join me in supporting this compromise for the good of the American people.
Madam President, I ask unanimous consent that the text of the bill be printed in the Record.