Mr. President, I ask unanimous consent that the order for the quorum call be rescinded. Mr. President, I rise today as a Senator from Virginia and, more importantly, as Chairman of the Intelligence Committee, in support of the Reforming…
Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.
Mr. President, I rise today as a Senator from Virginia and, more importantly, as Chairman of the Intelligence Committee, in support of the Reforming Intelligence and Securing America Act, H.R. 7888, which passed the House earlier this week, with a 273-to-147 broad, bipartisan support.
Section 702 of the Foreign Intelligence Surveillance Act, FISA, which a lot of this debate is focused on, is a critical source of foreign intelligence. It is indispensable to the work that the men and women of our intelligence community, and many others, do every day to protect our national security.
Section 702 authorities have enabled the IC to thwart terrorist attacks, track foreign spies, uncover economic espionage, impede weapons proliferation, protect U.S. troops, expose human and drug trafficking, prevent sanctions evasion, and disrupt foreign cyber attacks--a whole litany of the responsibilities of the IC.
Just to demonstrate how important these capabilities are to our national security: 60 percent--60 percent--of the items that appear in the President's daily intelligence brief actually are sourced to information obtained pursuant to section 702.
In the public domain, there are many examples of the value of section 702. These include when section 702 contributed to a successful operation against one of the last remaining 9/11 architects, Zawahiri; section 702 coverage that identified evidence of an al-Qaida courier in Pakistan with imminent plans to detonate explosives on subway tracks in Manhattan and, through that surveillance, was able to prevent the attack; section 702 identified the hackers responsible for the 2021 ransomware attack on Colonial Pipeline that crippled fuel supplies across the east coast and enabled the United States to recover 2.3 million in paid ransom.
Secretaries of Defense, Directors of National Intelligence, and many other Cabinet officials from both the current and the former administration have spoken out on the vital importance of ensuring that section 702 does not lapse.
To quote the President's intelligence advisory board:
If Congress fails to reauthorize Section 702, history may
judge the lapse of . . . 702 authorities as one of the worst
intelligence failures of our time.
Quite honestly, that is what we are looking at if we don't get this done.
Nonetheless, as we indicated, we just find ourselves just hours away from a possible sunset of this critical authority, which sunsets Friday night at midnight.
Now, some Members have argued that because the FISA Court recently approved new certifications, there is no urgency to reauthorize the law. Those claims are both misguided and dangerous.
In the event of a statutory lapse, some providers--American companies who are working with us--are likely to stop or reduce cooperation, perhaps with existing targets of collection but especially with new ones.
We know this can happen because it is exactly what happened when a similar lapse occurred following the expiration of section 702's predecessor statute: the Protect America Act.
Now, to be fair, it is also true that section 702 is in need of some reforms.
And myself, Senator Rubio, 16 Members, bipartisan, have sponsored the Senate version of this bill, have pressed for additional reforms to protect the civil liberties of Americans while still preserving the core values of the program and protecting American national security.
In recent years, a key oversight focus has been on the number of queries of section 702 information. Section 702 is a database. There are a series of databases. You can sometimes query that database within certain protections.
Now, the focus is focused on particularly those queries performed by the FBI and involving U.S. persons. There is no dispute that, for too long, the FBI query practices were sloppy.
For a time, as recently as 2019, more than 3 in 10 of the FBI queries were noncompliant. That means, literally, 30 percent of the time, the FBI was not even following their own procedures. The FBI took too much time to implement needed reforms. But, finally, in 2022 and 2023, it implemented comprehensive reforms that have proven effective and dramatically improved the query compliance rate from 70 percent to over 90 percent. That means less than 1 percent of these queries fall outside of the reform practices the FBI has put in place.
What do these reforms include? Maybe one of the most important ones is that rather than, by default, FBI agents query a series of databases. In the past, they would have to opt out of querying the 702 database. Now they have to opt in and make the case that they need that for national security purposes.
Another reform that has been put in place is there was a series of actions in the past called ``batch queries.'' A group of people might be arrested and suddenly you are querying a whole batch of them. Those batch queries have been dramatically diminished. At the same time, there are new reforms that require the FBI leadership to improve sensitive queries of politicians, journalists, and religious leaders. Literally, it has to be the Director of the FBI, the Deputy Director, or the head of the National Security Agency.
The bill before us--which, again, we had preconferenced most of this with the House--this is the House bill we will be taking up later this week. The bill before us now codifies these reforms, ensuring that a future President, Attorney General, or FBI Director cannot simply walk them back. When we pass this legislation and it is signed, these reforms will become the law of the land.
In addition to the reforms I already talked about, the bill we are debating goes even further. It also includes significant new protections for U.S. person queries, including a complete prohibition on queries solely used to find evidence of a crime, as was unanimously recommended by the President's Intelligence Advisory Board.
The bill also increases transparency of FISA Court proceedings, going so far--this was added in the House--as to allow Members of Congress and their staffs to attend court hearings. We have heard on this floor and before and the House many times: We don't know what is going on in the FISA Court hearing. Now, if a Member of Congress wants to sit in or send their staff, they will be able to do that.
This legislation also enhances reporting requirements from both the Bureau and the intelligence community and creates an ongoing reform commission to recommend further FISA reforms. The truth is, section 702 is already the most regulated and closely overseen intelligence authority of any we have in this country and, frankly, in countries around the world. If enacted, the reforms included in this bill would be the most comprehensive set of reforms ever enacted in the statute's history. We often reform this every 5 years or it had to be reauthorized. This set of reforms are much more sensitive than actions in the past.
I would like to speak briefly on two issues that have been the subject of considerable debate. First, some have suggested that we should impose a warrant requirement on U.S. person queries. Let me again be clear. A warrant requirement for U.S. person queries would do grave damage to national security. The FBI and other Agencies have relied on U.S. person queries of section 702, as I enumerated earlier, to prevent terrorist attacks, investigate cyber attacks, prevent assassination plots, and to disrupt narcotics trafficking.
Many of these successes would not have been possible if the government was required to obtain a warrant for U.S. person queries, and significant intelligence would be lost. Why is that so hard to put in place? Think about this for a moment. A warrant requirement requires a ``probable cause'' that the subject of the query is an ``agent of a foreign power.'' The truth is--I remember talking with the Presiding Officer about this--the majority of times that an American person is queried is not because we suspect them to be an agent of a foreign power but because they have been a victim, oftentimes, of a cyber attack. Even the most fervent advocate of a warrant has not been able to explain if you are trying to contact the person who has been a victim of a cyber attack, there is no way you could get a probable cause showing that that person is an agent of a foreign power. That agent is a victim of a foreign power. The warrant requirement could not meet the notification requirements put in place. The idea that we could simply contact the person--well, that does not pass the smell test.
Sometimes this gets complicated. I spent a lot of time trying to get this. Let me give you a couple of theoretical ways that this warrant requirement, I believe, falls short.
Let's say that the intelligence community is aware that Iran is planning a cyber attack against a U.S. victim--maybe even a victim that would sit in this Chamber. In that case, the intelligence community may want to query whether it has intelligence collected against Iran for when Iran or their agents are talking about that American so that we could actually get the full exposure to make sure that we both do victim notification and also preclude future attacks. These queries would serve to protect the victim, not investigate them. But it would never be possible to establish, as any warrant application would require, probable cause that the victim is an ``agent of a foreign power'' because they are not; they are a victim.
Let me give you another example. Assume the United States apprehends a known foreign terrorist overseas. On that person--I point this out to the Presiding Officer--there is a phone number, and it is a 303 area code. We don't know whether that phone number is a real number, whether it is a number of an American, or whether it is a number of a foreigner because as the Presiding Officer knows, somebody might have been a foreigner, gone to Colorado, gone to Denver, bought a phone and carries that phone with him forever. The idea that you could get a warrant of probable cause on the basis of that phone number alone, again, does not pass the smell test. It cannot happen.
The truth is, as well, someone said we will give you an exemption for exigent circumstances. The process will not work or will work in such a slow fashion that the use of this critical tool--60 percent of the intel the President reads every day comes from 702 intelligence. The truth is, it would take weeks or months to obtain an order from the FISA Court during the time which that guy--let's go back to the example. We arrested a terrorist with a 303 area code. You are going to wait weeks before you can even query that phone number to see if it is a real number, an American, a foreign person.
Then, some say: Why don't you make the query, but we won't let you look at the results? Again, either one of those circumstances basically neuters the whole ability of 702 to work.
Second issue. The House-passed bill includes an important amendment to the definition of electronic communications service providers, ECSPs, that address collection gaps caused by developments in internet and telecommunications technology since 702 was first written in 2008.
Let me say, as somebody who spent a career in telecom, the world has dramatically changed in the telecom domain from 2008. This amendment, in terms of the definition, is, again, focused on this current intelligence gap. It still requires that the targeting that goes on in 702 focuses on overseas non-U.S. persons. And contrary to what some Members literally said on the floor of the Senate, this technical amendment that was added in the
House specifically excludes coffee shops, bars, restaurants, residences, hotels, libraries, recreational facilities, and a whole litany of similar establishments.
It would not, as some critics have maintained, allow the U.S. Government to compel, for example, a janitor working in an office building in Northern Virginia to somehow spy for the intelligence community. Nor would it allow, as some have absurdly claimed, States to use 702 to target women seeking abortions.
First of all, State and local authorities don't even have access to all 702 data. Secondly, the law is and remains crystal clear on this point: 702 cannot be used to target U.S. persons domestically--period, full stop, no exceptions.
The amendment, the ECSP amendment, was required because, as I pointed out earlier, the world of telecom changed dramatically since the law was first put in place 16 years ago. Keep in mind, back in 2008, when section 702 was first passed, we had pay phones on most corners, and the cloud was actually something that might cause rain rather than be a place where communication is often stored.
In short, what happens here is that the government served a 702 directive. And this is why this came about. And that American company said: We think your old definition of a service provider doesn't apply to us. And you know what? In litigation, that claim won, and the FISA Court specifically said we need to make sure that we update the definition. The House added that updated definition. I don't believe we should roll that back.
This is not, as some have claimed, some broad expansion of 702 powers of jurisdictions. Again, I could get into the complexities of how there are some data centers, as has been reported in the press, that at certain times activity will take place in the data center that don't fall into the old definition of 2008. Do we really want that data to pass through the data center to be allowed to be lawfully collected? I think we do.
Let me be the first to say that the House bill is not perfect. I think we should have gone for a 5-year reauthorization. The House- passed was a 2-year reauthorization. I accept that. I think the reforms that were put in place will further protect. I go back to the earlier comments I made. We have gone from a 30-percent noncompliance of the FBI to less than 1 percent.
(Ms. CORTEZ MASTO assumed the Chair.)
Madam President, in terms of the warrant requirement, you are never going to get a probable cause warrant if the individual who is being queried is actually the victim of a crime. We sure as heck are not going to be able to get a warrant requirement met if you capture a terrorist--I will go from the 303 area code to, I think, Las Vegas is 702. If you have to show, based upon that number alone, you have probable cause, you don't know who or what that number is until you do the query.
And as I mentioned these last couple of moments, this new definition, this technical definition the House adopted--again, with an overwhelming bipartisan majority--is not an expansion that simply brings up the terminology around telecom providers up to 2024, which was different than 2008. The notion that we would allow this incredibly--in a sense, the crown jewel of our intelligence collection abilities to go dark as we simultaneously try to debate aid for Ukraine and Israel and humanitarian relief to Palestinians and Gaza, the idea we would suddenly go dark at this moment in time would be the height of irresponsibility.
I know we have to get through this afternoon's proceedings, but I would strongly urge Members to join me in voting to pass H.R. 7888, without amendment, to make sure that we don't have a lapse.
I know we made documents and individuals available in the SCIF, but if Members have questions, if Members have concerns, if Members here come to the floor and make other charges, please talk to me, talk to Senator Rubio, talk to anybody in law enforcement or the intelligence community. So many of the claims being made here just are not accurate in terms of what this bill is doing.
I think this is a strong reform bill. I think it needs to get passed, and we need to not let this critical authority lapse.