11.06.19

Statement On Hearing Of The Senate Judiciary Committee On “Reauthorizing the USA FREEDOM Act of 2015"

This is an important hearing and I am grateful that Chairman Graham agreed to my and Senator Lee’s request to hold it.

I remain proud of our successful efforts in 2015 to pass the USA FREEDOM Act.  This law was the first major overhaul of government surveillance powers in decades. It added significant privacy protections for the American people.  Now we have the opportunity to assess, learn from, and respond to what has happened over the past four years. 

So what have we learned?  We know that the government issued only 14 CDR program orders in 2018, and yet collected over 434 million records relating to over 19 million phone numbers.  

We know of at least two incidents of significant over-collection, resulting in the NSA purging all of their records and ultimately decommissioning the program.  And we know that then-DNI Director Dan Coats acknowledged, even as he requested a permanent reauthorization of all of the authorities granted in USA FREEDOM, that the CDR program’s relative intelligence value was negligible.

Given all that, what DON’T we know?  Unfortunately, quite a bit.  We are only a month away from these authorities expiring and we don’t know what caused the massive over-collection, what companies were responsible, or why it was not feasible for the NSA to identify or isolate the improperly produced data.

It is not as though Senator Lee and I have not tried to learn the answers to these questions.  Almost a year ago, in December 2018, Senator Lee and I wrote a letter to the DNI and Justice Department asking these and other questions.  After failing to receive a response, we wrote again in July.  Unfortunately, we never received a substantive response to either of these letters. 

Despite this, the government is now requesting the permanent reauthorization of all of the authorities granted in USA FREEDOM, including the CDR program, arguing that it might eventually be useful and technology might evolve to the point they could collect metadata in compliance with the law.  

Let me be clear.  “Maybe someday it will be of some use” and “Hopefully we will develop technologies to not again violate the law” are not appropriate justifications to reauthorize these powers. 

If, at some point in the future, the technology develops to allow for metadata collection that is appropriately limited, follows the rules, and is fair, Congress can revisit the question.  Until that time, there is no reason to reauthorize the CDR program.  We would be legislating in the dark. 

I want to again thank the Chairman for holding this hearing and I look forward to the witnesses’ testimony.  

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