10.21.15

REMARKS OF SENATOR PATRICK LEAHY CATO SURVEILLANCE CONFERENCE

Good afternoon.  Two years ago – at a Cato conference on NSA surveillance – Congressman Jim Sensenbrenner announced our introduction of the original USA FREEDOM Act.  It is great to be with you, two years later, to celebrate the enactment of the USA FREEDOM Act of 2015, and the end of the NSA’s bulk collection of American’s phone records. 

The USA FREEDOM Act marks the first major reform of surveillance laws in decades.  This sort of reform does not come quickly, or easily.  But Republicans and Democrats finally came together and passed this bill because it was the right thing to do.  And because the American people demanded it. 

When the public learned that the government had secretly relied on a deeply flawed interpretation of Section 215 of the USA PATRIOT Act to engage in the indiscriminate, bulk collection of our telephone records, the response from the American people was clear.  They were shocked that the phone records of innocent Americans were being swept up, regardless of any connection to terrorist activity.  They lost trust in the intelligence community, and became skeptical of existing legal protections.  They demanded meaningful limits on executive authority.  They demanded more transparency, more accountability, more checks and balances.  And they rallied behind an end to the NSA’s dragnet collection of their phone records. 

Despite these powerful calls for reform, some leaders in the Senate defended the program and resisted even modest reforms.  They claimed that the phone records program was necessary to keep our country safe, and resorted to the same fear-mongering tactics we have seen all too often.  But they did not work this time.  Through multiple hearings in the Senate Judiciary Committee and the tireless advocacy of many in this room, we were able to demonstrate that the effectiveness of the program had been grossly overstated.  And there was another factor at play, one that turned out to be critical.  The sunset.

When the USA PATRIOT Act was originally enacted in 2001, I worked with Congressman Dick Armey to ensure that it included a sunset of the most controversial surveillance provisions, including Section 215.  We wanted to force Congress to revisit these provisions, and that is exactly what happened this year. 

With Section 215 scheduled to expire on June 1, the Senate still had not enacted legislation to reauthorize it.  The Senate Majority Leader did not like our bill, but our coalition in the House and the Senate made it crystal clear that we would not let a clean reauthorization pass.  So in the end, backed up against the sunset deadline, Leader McConnell was forced to bring up the USA FREEDOM Act, which ultimately passed the Senate with overwhelming support. 

The USA FREEDOM Act that was enacted into law did not go as far as the original bill that I introduced with Congressman Sensenbrenner.  I wanted more reforms, but the bill that passed was an important step in a long journey that has not ended yet. 

First, and most importantly, the USA FREEDOM Act ends the NSA’s bulk collection of Americans’ phone records.  The Act also prohibits the government from using other surveillance authorities to engage in bulk collection.

Second, the law increases transparency of the government’s surveillance activities.  The USA FREEDOM Act will lead to the declassification of more FISA Court opinions, and has already allowed companies like Yahoo! to report more information to the public about government surveillance requests.  The mandatory government reporting requirements will soon provide even more information.

Third, the reforms to the FISA Court in the USA FREEDOM Act allow the court to hear additional perspectives from expert third parties.  The FISA Court has already authorized amicus curiae to appear before the court pursuant to provisions in the new law. In a few weeks, the FISA Court will take another significant step by designating a panel of cleared experts available to assist the court in any matter going forward.

Lastly, the USA FREEDOM Act enacted major reforms to National Security Letters.  The law ensures that NSLs cannot be used for bulk collection.  It also strengthens judicial review of gag orders that are issued to recipients of NSLs – bringing these gag orders into compliance with the Constitution.

I believe that history will view the USA FREEDOM Act as a crucial step toward recalibrating our surveillance laws.  I want to thank my partners on the bill: Senator Lee, Congressman Sensenbrenner, Chairman Goodlatte, and Ranking Member Conyers.  Also Senator Wyden, who supported this effort to the end.  Our bill could not have passed without the broad coalition of privacy advocates, U.S. companies, and others that worked for years to end bulk collection and enact meaningful reform.  And thank you to the Cato Institute for including me today, and for your work on surveillance reform.  This new law is the result of our collective efforts, but I am here to make clear to you that our work is not done.

There are many in Congress who still prefer to give our national security agencies a blank check.  They believe that any attempt to protect our privacy somehow makes us less safe.  We must forcefully reject this premise. 

Too often, I hear members accept the framework of ‘balancing’ privacy rights and national security.  This is the wrong approach.  It suggests that any effort to protect Americans’ privacy somehow makes us less secure.  Protecting our most basic rights and protecting this country are not part of a zero-sum equation.  They need not be in conflict.  We can and should do both.  We can give our intelligence and law enforcement agencies the tools they need to keep us safe, while at the same time placing responsible limits to protect Americans’ privacy and constitutional liberties.  The USA FREEDOM Act is proof of that.

Our task now is to keep building momentum for further reform.  The bipartisan coalition that was so critical to ending bulk collection must keep fighting.

We still need to protect Americans’ email and other content stored in the cloud.  Reform of the Electronic Communications Privacy Act, which I originally wrote in 1986, is long overdue. Technology has outpaced this law and it must be updated.  Senator Lee and I have introduced the ECPA Amendments Act, which enshrines in statute a warrant requirement for emails, texts, and other electronic content held by service providers.  This bill has overwhelming, bipartisan support with 300 cosponsors in the House and more than 20 cosponsors in the Senate.  It is time to finally get this bill across the finish line.

We also need to reform the FISA Amendments Act, which sunsets in 2017.  This law, also known as Section 702, has significant privacy implications for innocent Americans.  And with the European Court of Justice’s decision, it continues to have significant implications for American businesses in the global economy.  I look forward to working with you to reform Section 702 and other surveillance authorities.

Finally, we need to grapple with a whole range of new technologies that have the potential to threaten Americans’ privacy.  Technologies such as Stingrays, license plate readers, facial recognition technology, and even domestic drones are transforming the government’s ability to monitor and collect information on innocent Americans.  I will continue to work to ensure that these types of technologies are used responsibly, with clear guidelines and appropriate safeguards to protect our constitutional rights.

This has been an historic, landmark year for surveillance reform, and we should celebrate our victory.  But there is important work ahead.  I have fought to protect the privacy and constitutional rights of Vermonters and all Americans from the day I was first elected to the Senate in 1974.  I will not stop now.  Thank you.

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