Mr. Chair, I thank the distinguished ranking member of the Judiciary Committee and the chairman of the Judiciary Committee. Even in this time of 2024, we need this legislation to protect now one of the most revered civil rights leaders,…
Mr. Chair, I thank the distinguished ranking member of the Judiciary Committee and the chairman of the Judiciary Committee.
Even in this time of 2024, we need this legislation to protect now one of the most revered civil rights leaders, Dr. Martin Luther King. Yes, we need legislation that would, in fact, protect someone who simply wanted to provide justice to this Nation. He was the subject of COINTELPRO, a distorted investigation of his family, his belongings, his extended family members, and his wife, who I think at the time was expecting.
This legislation is important to save lives. It is important legislation to ensure that our intelligence community, our law enforcement community, can do their jobs, but it is not legislation that should be utilized to abuse the American people.
I rise today to speak of the concerns on H.R. 7888. It is a bipartisan bill to reauthorize an essential intelligence authority, section 702 of the Foreign Intelligence Surveillance Act, FISA, and other FISA provisions before they would expire on April 19. In doing so, we find ourselves being subject to the eye of the knife, if you will, in penetrating the personal matters of individuals that have no desire to do harm to this country.
As we know all too well, expiration of 702 authorities would deprive our Federal Government of the necessary insight into precisely the threats Americans expect their government to identify and counter. We understand that, as highlighted and emphasized through Federal administration, if we lose 702, we lose vital protections to the United States and its allies from hostile foreign adversaries, including terrorists, proliferators, and spies, and to inform cybersecurity efforts.
We are also acutely aware that 702 is an extremely controversial, warrantless surveillance authority that must not be reauthorized without substantial reform to rein in warrantless surveillance of Americans. We simply cannot do that. Indeed, warrantless surveillance intended for non-American targets located abroad inevitably has resulted in the collection and capture of Americans' communications and, yes, the results of capturing information that safeguards the American people and provides us with a safety net that we can fight for justice, fight for civil rights, and yet be protected.
It is no secret that intelligence agencies have turned section 702 into a domestic spying tool used to perform hundreds of thousands of warrantless backdoor searches for Americans' private phone calls, emails, and text messages.
By the way, Mr. Chair, we have a whole new world of technology where you can probe every aspect of our lives. These searches have included shocking abuses, including against civil rights leaders, protesters, Members of Congress, 19,000 donors to congressional campaigns, political parties.
Mr. Chair, I rise today to speak on H .R. 7888--Reforming Intelligence and Securing America Act (RISAA), a bipartisan bill to reauthorize an essential intelligence authority, Section 702 of the Foreign Intelligence Surveillance Act (``FISA''), and other FISA provisions before they would expire on April 19, 2024.
As we know all too well, expiration of Section 702 authorities would deprive our federal government of the necessary insight into precisely the threats Americans expect their government to identify and counter.
As highlighted and emphasized through federal administration, if we lost 702, we would lose vital protections to the United States and its allies from hostile foreign adversaries, including terrorists, proliferators, and spies, and to inform cybersecurity efforts.
We also are acutely aware, that Section 702 is an extremely controversial warrantless surveillance authority that must not be reauthorized without substantial reform to rein in warrantless surveillance of Americans.
Indeed, warrantless surveillance intended for non-American targets located abroad ``inevitably'' has resulted in the collection and capture of Americans' communications, too.
And it is no secret that intelligence agencies have turned Section 702 into a domestic spying tool, using it to perform hundreds of thousands of warrantless ``backdoor'' searches for Americans' private phone calls, e-mails, and text messages every year.
Yes, these searches have included shocking abuses, including baseless searches for the communications of Black Lives Matter protesters, members of Congress, 19,000 donors to a congressional campaign, a local political party, and tens of thousands of people involved in ``civil unrest.''
To protect the American people, we need to maintain the vital collection authority as intended to protect our nation and national security, while at the same time strengthening its protective guardrails with the most robust set of reforms ever included in legislation to reauthorize Section 702.
Importantly, H.R. 7888, as amended here today provides several critically needed reforms--including a fix to the backdoor search loophole and a prohibition on the ``abouts'' collection provision, and ultimately seeks to accomplish the necessary balancing we seek for national security protections and the protection of American's privacy rights.
To protect the American people, we need to maintain the vital collection authority as intended to protect our Nation and national security. We must do that while at the same time strengthening its protective guardrails with the most robust set, if you will, of protection that we possibly can.
That is why I have joined with several Members, including Mr. Cline, to offer the ``abouts'' amendment. We will offer that as one of the Judiciary three. This amendment does something Congress should have done 7 years ago, prohibit the government from resuming ``abouts'' collection, a form of section 702 that poses unique risks to Americans. ``Abouts'' collection is a collection of communications that are neither to nor from an approved target of surveillance--can you imagine?--under section 702 of FISA but merely contain information related to the target.
Mr. Chair, it is unbelievable that we would go after innocent Americans and Members of Congress in the random searching and fishing of information that may not be relevant. In the past, ``abouts'' collection focused on collecting communications that include a target's email address, phone number, or Twitter handle or something like that, but in theory, ``abouts'' collection could be used to collect emails that merely mention a person who is a target of section 702 surveillance.
Mr. Chair, I rise today to indicate that we cannot pass this legislation without these vital amendments and that we cannot pass this legislation without the American people believing that when they pledge allegiance to the flag of the United States of America, they are pledging allegiance to civil liberties, freedom, and justice and equality for all. I rise to support these amendments and as well a free nation with democracy and liberty for all.
Mr. Chair, I include in the Record a list of groups who support this amendment.
Congress of the United States,
Washington, DC, April 12, 2024.
Dear Colleague: Please join us in supporting our amendment
to H.R. 7888, the Reforming Intelligence and Securing America
Act. Rules Amendment #5 would end what is known as ``abouts''
collection, which involves the capturing of massive amounts
of communications by government agencies such as the National
Security Agency (NSA) in which the selector, for example, an
email address, of a target appears somewhere in
communications, even if that target is not a party to the
communications. It has long been controversial.
The FISA Court previously discovered that the government
had misrepresented its activities and held that handling this
type of data was of significant concern and a violation of
the Fourth Amendment. Although the NSA abandoned the practice
of ``abouts'' collection in 2017, Congress in 2018 amended
FISA to prohibit this type of collection unless the AG and
DNI notify the House and Senate Intelligence and Judiciary
Committees of its plans to resume such collection. But that
only means that if the NSA notifies Congress, they can resume
``abouts'' collection at any time. Our amendment would
proactively end the practice for good.
The following groups support this important amendment:
FreedomWorks--Key Vote; Due Process Institute; Americans
for Prosperity; Project for Privacy and Surveillance
Accountability; Reform Government Surveillance; Center for
Democracy and Technology; American Civil Liberties Union;
Electronic Privacy Information Center (EPIC); Restore the
Fourth; Defending Rights & Dissent; Brennan Center for
Justice; Wikimedia Foundation.
Demand Progress; Electronic Frontier Foundation; Project on
Government Oversight; United We Dream; Asian Americans
Advancing Justice; Muslim Advocates; Free Press Action;
National Association of Criminal Defense Lawyers; Freedom of
the Press Foundation; New America's Open Technology
Institute; Fight for the Future; Stop AAPI Hate.
We urge you to vote in favor of Amendment #5.
Sincerely,
Ben Cline,
Member of Congress.
Sheila Jackson Lee,
Member of Congress.
Mr. Chair,
I rise today in support of the Cline (VA)/Jackson Lee (TX) Amendment [#3] to H.R. 7888--Reforming Intelligence and Securing America Act (RISAA).
This amendment does something Congress should have done seven years ago: prohibit the government from resuming ``abouts'' collection, a form of Section 702 surveillance that poses unique risks to Americans.
``Abouts'' collection is the collection of communications that are neither To nor From an approved target of surveillance under Section 702 of the Foreign Intelligence Surveillance Act (FISA), but merely contain information relating to that target.
In the past, ``abouts'' collection focused on collecting communications that include a target's email address, or phone address, or Twitter handle, or something like that. But in theory, ``abouts'' collection could be used to collect emails that merely mention a person who is a target of Section 702 surveillance.
Nothing in the text or legislative history of Section 702 indicates that this type of surveillance is authorized.
Under Section 702, the surveillance must target a non-U.S. person outside the United States. The term ``target'' has a well-understood meaning. When a person is a target, it means the government can collect that person's information or other data, not the communications or data of other individuals.
As we all know, ``abouts'' collection under Section 702 has a sordid history.
The National Security Agency (NSA) used ``abouts'' collection when it was conducting upstream surveillance, in other words, when it was intercepting communications directly as they transited over the Internet backbone, rather than collecting stored communications from service providers.
Not surprisingly, this practice resulted in the collection of tens of thousands of purely domestic communications--communications between and among Americans inside the United States.
Moreover, often these Americans were not even discussing the target. Instead, their communications were lumped in with other communications, transiting over the Internet backbone as a packet. The NSA was collecting the entire packet of communications, simply because somewhere in that packet was a reference to information about a target.
This was a problem from the moment Section 702 went into effect in 2008. And yet for years, the government did not disclose this problem to the FISA Court.
To the contrary, the government affirmatively misrepresented how the program was working. It was not until 2011 that the court learned the government was sweeping in tens of thousands of purely domestic communications.
The court was livid. It noted that the belated disclosure, and I quote, ``marks the third instance in less than three years in which the government has disclosed a substantial misrepresentation regarding the scope of a major collection program.''
At the time, the court chose not to prohibit the use of ``abouts'' collection. But it held that special minimization rules were required for upstream communications, and that without those rules, the program would violate both Section 702 and the Fourth Amendment. One of those rules was a prohibition on U.S. person queries of communications obtained through upstream surveillance.
Five years later, the NSA discovered that its agents had been routinely violating this prohibition. But rather than immediately report these violations to the FISA Court, the NSA waited for several months. When it finally admitted the violations, the FISA Court chastised the NSA for its ``institutional lack of candor,'' and refused to approve the continuation of Section 702 surveillance until the NSA cleaned up its act.
The NSA proved incapable of bringing its agents into compliance. The agents continued to routinely search though the upstream data in an effort to find and review Americans' communications, in violation of Section 702, the Fourth Amendment, and the FISA Court's orders. Well aware that the court would not continue to approve Section 702 surveillance under these conditions, the NSA, in 2017, made the only decision it could: it terminated ``abouts'' collection.
Well, it has now been seven years since the NSA stopped ``abouts'' collection, and the government has not claimed that ending this practice has resulted in a loss of critical intelligence or had any other kind of negative impact on national security. No official has pointed to a single bad result that could have been averted through the use of ``abouts'' collection.
Collecting communications that are neither to nor from an approved target of surveillance is contrary to the text and intent of Section 702.
It inevitably results in the collection of wholly domestic communications, which Section 702 expressly prohibits.
Over the course of a decade, the NSA proved that it was incapable of operating ``abouts'' surveillance responsibly and in accordance with the law--and the past seven years shown that ``abouts'' collection is not necessary for national security.
It is time for Congress to shut the door on ``abouts'' collection.
In the future, if the government can show that it needs ``abouts'' collection for national security purposes and that it can operate the program without violating the law and the Fourth Amendment, it can come to Congress and ask for authorization. But the burden should be on the government to show the need and the ability to lawfully conduct the program.
For these reasons, I urge my colleagues to vote in favor of the Cline/Jackson Lee Amendment [#3].
Mr. Chair, I thank the gentleman very much.
I am delighted to be able to work with the gentleman from Virginia on what I think is crucial to codify, because as you said, the FBI had stopped doing it, but here we are again.
Mr. Chair, I yield 1 minute to the gentleman from Connecticut (Mr. Himes), the ranking member on the Intelligence Committee.
I have the time.
I have yielded a minute to the gentleman from Connecticut (Mr. Himes).
He had yielded to me, but I will be happy to yield back so he can get his time.
Mr. Chair, I thank the gentleman from Virginia, the home of my alma mater, the University of Virginia School of Law, and the gentleman from Connecticut, also the home of my alma mater.
To be able to find collegiality in a very important question for the American people is very much a statement that should be made.
This amendment does something Congress should have done 7 years ago, as I have indicated, prohibiting the government from resuming ``abouts'' collection, a form of section 702 surveillance that poses a unique risk to Americans.
It is also very disturbing, Mr. Chair, because most Americans would scratch their heads and wonder why is this relevant to the immediate investigation. ``Abouts'' collection is a collection of communications that are neither to nor from an approved target of surveillance under 702, the Foreign Intelligence Surveillance Act, FISA, but merely contain information relating to that target. That means that you become a target because it happened to be sitting around you or it happened to be going to you or from you.
In the past, ``abouts'' collections focused on collecting communications that include a target's email or phone, address, Twitter handle, or something like that, but in theory ``abouts'' collection could be used to collect emails that merely mention a person who is a target of 702 surveillance.
I think it is extremely important to recognize ``merely mentions'' that individual, and you could have your materials, your private information, wrapped up in a roundup or a lassoing of the extended material that is scattered around you, and you could be subject to some kind of haul, if you will, a hauling in of data about you.
Nothing in the text or legislative history of 702 indicates that this type of surveillance is authorized. That is why I think this amendment with Mr. Cline is extremely important because it shows that we are working together.
Mr. Chair, I rise today in support of the Cline (VA)/Jackson Lee (TX) Amendment No. 3 to H.R. 7888--Reforming Intelligence and Securing America Act (RISAA).
This amendment does something Congress should have done seven years ago: prohibit the government from resuming ``abouts'' collection, a form of Section 702 surveillance that poses unique risks to Americans.
``Abouts'' collection is the collection of communications that are neither to nor from an approved target of surveillance under Section 702 of the Foreign Intelligence Surveillance Act (FISA), but merely contain information relating to that target.
In the past, ``abouts'' collection focused on collecting communications that include a target's email address, or phone address, or Twitter handle, or something like that. But in theory, ``abouts'' collection could be used to collect emails that merely mention a person who is a target of Section 702 surveillance.
Nothing in the text or legislative history of Section 702 indicates that this type of surveillance is authorized.
Under Section 702, the surveillance must target a non-U.S. person outside the United States. The term ``target'' has a well-understood meaning. When a person is a target, it means the government can collect that person's information or other data, not the communications or data of other individuals.
As we all know, ``abouts'' collection under Section 702 has a sordid history.
The National Security Agency (NSA) used ``abouts'' collection when it was conducting upstream surveillance, in
other words, when it was intercepting communications directly as they transited over the Internet backbone, rather than collecting stored communications from service providers.
Not surprisingly, this practice resulted in the collection of tens of thousands of purely domestic communications--communications between and among Americans inside the United States.
Moreover, often these Americans were not even discussing the target. Instead, their communications were lumped in with other communications, transiting over the Internet backbone as a packet. The NSA was collecting the entire packet of communications, simply because somewhere in that packet was a reference to information about a target.
This was a problem from the moment Section 702 went into effect in 2008. And yet for years, the government did not disclose this problem to the FISA Court.
To the contrary, the government affirmatively misrepresented how the program was working. It was not until 2011 that the court learned the government was sweeping in tens of thousands of purely domestic communications.
The court was livid. It noted that the belated disclosure, and I quote, ``marks the third instance in less than three years in which the government has disclosed a substantial misrepresentation regarding the scope of a major collection program.''
At the time, the court chose not to prohibit the use of ``abouts'' collection. But it held that special minimization rules were required for upstream communications, and that without those rules, the program would violate both Section 702 and the Fourth Amendment. One of those rules was a prohibition on U.S. person queries of communications obtained through upstream surveillance.
Five years later, the NSA discovered that its agents had been routinely violating this prohibition. But rather than immediately report these violations to the FISA Court, the NSA waited for several months. When it finally admitted the violations, the FISA Court chastised the NSA for its ``institutional lack of candor,'' and refused to approve the continuation of Section 702 surveillance until the NSA cleaned up its act.
The NSA proved incapable of bringing its agents into compliance. The agents continued to routinely search though the upstream data in an effort to find and review Americans' communications, in violation of Section 702, the Fourth Amendment, and the FISA Court's orders. Well aware that the court would not continue to approve Section 702 surveillance under these conditions, the NSA, in 2017, made the only decision it could: it terminated ``abouts'' collection.
Well, it has now been seven years since the NSA stopped ``abouts'' collection, and the government has not claimed that ending this practice has resulted in a loss of critical intelligence or had any other kind of negative impact on national security. No official has pointed to a single bad result that could have been averted through the use of ``abouts'' collection.
Collecting communications that are neither to nor from an approved target of surveillance is contrary to the text and intent of Section 702.
It inevitably results in the collection of wholly domestic communications, which Section 702 expressly prohibits.
Over the course of a decade, the NSA proved that it was incapable of operating ``abouts'' surveillance responsibly and in accordance with the law--and the past seven years shown that ``abouts'' collection is not necessary for national security.
It is time for Congress to shut the door on ``abouts'' collection.
In the future, if the government can show that it needs ``abouts'' collection for national security purposes and that it can operate the program without violating the law and the Fourth Amendment, it can come to Congress and ask for authorization. But the burden should be on the government to show the need and the ability to lawfully conduct the program.
For these reasons, I urge my colleagues to vote in favor of the Cline/Jackson Lee Amendment No. 3.
Mr. Chair, I include in the record a letter from Representative Cline and myself listing the groups in support of this amendment.
Congress of the United States,
Washington, DC, April 12, 2024.
Dear Colleague: Please join us in supporting our amendment
to H.R. 7888, the Reforming Intelligence and Securing America
Act. Rules Amendment No. 5 would end what is known as
``abouts'' collection, which involves the capturing of
massive amounts of communications by government agencies such
as the National Security Agency (NSA) in which the selector,
for example, an email address, of a target appears somewhere
in communications, even if that target is not a party to the
communications. It has long been controversial.
The FISA Court previously discovered that the government
had misrepresented its activities and held that handling this
type of data was of significant concern and a violation of
the Fourth Amendment. Although the NSA abandoned the practice
of ``abouts'' collection in 2017, Congress in 2018 amended
FISA to prohibit this type of collection unless the AG and
DNI notify the House and Senate Intelligence and Judiciary
Committees of its plans to resume such collection. But that
only means that if the NSA notifies Congress, they can resume
``abouts'' collection at any time. Our amendment would
proactively end the practice for good.
The following groups support this important amendment:
Freedom Works--Key Vote; Due Process Institute; Americans
for Prosperity; Project for Privacy and Surveillance
Accountability; Reform Government Surveillance; Center for
Democracy and Technology; American Civil Liberties Union;
Electronic Privacy Information Center (EPIC); Restore the
Fourth; Defending Rights & Dissent; Brennan Center for
Justice; Wikimedia Foundation.
Demand Progress; Electronic Frontier Foundation; Project on
Government Oversight; United We Dream; Asian Americans
Advancing Justice; Muslim Advocates; Free Press Action;
National Association of Criminal Defense Lawyers; Freedom of
the Press Foundation; New America's Open Technology
Institute; Fight for the Future; Stop AAPI Hate.
We urge you to vote in favor of Amendment No. 5.
Sincerely,
Ben Cline,
Member of Congress.
Sheila Jackson Lee,
Member of Congress.