Statement of Senator Patrick Leahy (D-Vt.), Chairman, U.S. Senate Committee On The Judiciary, On Introduction of the FISA Accountability and Privacy Protection Act of 2013 Senate Floor
June 24, 2013
For more than a decade, the Government’s ability and authority to gather information and electronic communications data about those suspected of, or connected to, potential terrorists has greatly increased. However, the Government should have such powerful authorities only if there is proper oversight, accountability, and transparency, to ensure we maintain both our nation’s security and the fundamental civil liberties upon which our nation was founded. I have long been troubled by the expansive nature and scope of the USA PATRIOT Act and the FISA Amendments Act. That is why I have consistently fought to include strong protections for the privacy rights and civil liberties of American citizens, as well as sunsets to help ensure proper congressional oversight – and that is why I introduce today, along with a bipartisan group of Senators, the FISA Accountability and Privacy Protection Act of 2013.
In each of the last two Congresses, I introduced legislation to improve and reform the powerful law enforcement tools of the USA PATRIOT Act, while increasing judicial oversight, public accountability, and transparency. Although both of those bills were reported favorably by the Judiciary Committee with bipartisan support, Congress ultimately decided to extend all of these authorities without any modification or improvement until 2015. Likewise, when Congress considered reauthorizing the FISA Amendments Act last year, I pushed for a shorter sunset, greater transparency, and better oversight. Regrettably, the Senate rejected these efforts to apply stricter oversight over these sweeping authorities.
The recent public revelations about two classified data collection programs have brought renewed attention to the Government’s broad surveillance authorities, and they underscore the need for close scrutiny by Congress. The Director of National Intelligence has acknowledged that they are being conducted pursuant to Section 215 of the USA PATRIOT and Section 702 of the FISA Amendments Act. The comprehensive legislation that I am introducing today will not only improve the privacy protections and accountability provisions associated with these authorities, but also strengthen oversight and transparency provisions in other parts of the USA PATRIOT Act.
In recent days, much attention has been rightly focused on Section 215 of the PATRIOT Act, and the bulk collection of phone call metadata by the National Security Agency. This measure will narrow the scope of Section 215 orders by requiring the Government to show both relevance to an authorized investigation and a link to a foreign group or power. This bill also adds more meaningful judicial review of Section 215 orders and strikes the one-year waiting period before a recipient can challenge a nondisclosure order for Section 215 orders. Moreover, this measure would strengthen require court review of minimization procedures when information concerning a U.S. person is acquired, retained, or disseminated pursuant to a Section 215 order. This is a commonsense oversight requirement that is already required for other FISA authorities – such as wiretaps, physical searches, and pen register and trap and trace devices.
The FISA Accountability and Privacy Protection Act will also reform and improve other authorities contained in the PATRIOT Act that, while perhaps not a topic of recent public debate, also significantly impact the privacy rights of Americans. National security letters (or NSLs), for example, are used extensively by law enforcement and the intelligence community, and can be issued without the approval of a court, grand jury, or prosecutor. To ensure proper congressional oversight, I propose applying a new sunset to the NSL authority. I have long been concerned about the broad scope of these secret requests, and the potential for expansive collection of sensitive information without appropriate limitations, and a sunset provision would help to ensure proper accountability. Additionally, my bill would also address constitutional deficiencies regarding the nondisclosure or “gag orders” by finally allowing individuals to challenge these orders in court. The bill would also expand public reporting on the use of NSLs and FISA authorities, including an unclassified report on the impact of the use of these authorities on the privacy of U.S. persons.
My bill will also address shortcomings in the FISA Amendments Act and apply improvements that I sought during last year’s reauthorization debate in the Senate. The existing June 2017 sunset would be shortened to June 2015 to ensure timely re-examination of how these authorities are being utilized. The June 2015 sunset will also align with the PATRIOT Act sunsets, enabling Congress to address these FISA provisions all at once, rather than in a piecemeal fashion. This legislation will also increase accountability by clarifying the scope of annual reviews currently required by law extends to all agencies that have a role in developing targeting and minimization procedures. Finally, the bill seeks to increase oversight by requiring the Inspector General of the Intelligence Community to conduct a comprehensive review of the FISA Amendments Act and its impact on the privacy rights of Americans.
These are all commonsense, practical improvements that will ensure that the broad and powerful surveillance tools being used by the Government are subject to appropriate limitations, transparency, and oversight. The American people deserve to know how laws like the USA PATRIOT Act and the FISA Amendments Act are being used to conduct electronic surveillance, particularly when it involves the collection of data on innocent Americans. The American people also deserve to know whether these programs have proven sufficiently effective to justify their extraordinary breadth. The enhanced layers of transparency, oversight, and accountability included in this legislation will ensure that we are protecting national security without undermining the privacy rights and civil liberties of law-abiding Americans.
I ask unanimous consent that the text of bill be printed in the Record.
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