June 27, 2016

Wyden Places Hold on Intelligence Authorization Bill that Needlessly Expands FBI surveillance, Undermines Independent Oversight

Washington, D.C. – Senator Ron Wyden, D-Ore., today placed a hold on the 2017 Intelligence Authorization bill, over provisions that would let the FBI demand Americans’ web browsing histories and other digital data without court oversight. A bipartisan coalition of senators defeated a similar FBI spying proposal in a Senate floor vote last week.

Wyden was the only senator to vote against the bill in the Senate Intelligence Committee. Wyden also objects to a provision placing new restrictions on the independent watchdog known as the Privacy and Civil Liberties Oversight Board.

Wyden announced his hold in a Senate floor speech. His remarks as prepared for delivery are below.

Sen. Ron Wyden Senate Floor Statement on 2017 Intelligence Authorization Act

M. President, the Senate has been asked to give unanimous consent to approve a version of the Intelligence Authorization bill for Fiscal Year 2017.  When the Intelligence Committee considered this bill last month, I voted against it.  While I respect the effort that the distinguished Chair and Vice Chair of the Intelligence Committee have put into drafting this year’s bill, it would dramatically and unnecessarily expand government surveillance authorities, and it would undermine independent oversight of American’s intelligence agencies.  So I have objected to this unanimous consent request. 

National Security Letters

This version of the intelligence authorization bill contains language – in section 803 – that would authorize individual Federal Bureau of Investigation (FBI) field offices to demand Americans’ email and internet records simply by issuing a National Security Letter, with no court oversight whatsoever.  Senators will be familiar with this proposal, as the Senate recently voted on a Senate floor amendment with similar language.  Although the wording of section 803 is somewhat vaguer, the intent is clearly the same. 

As many senators have noted, the FBI’s current authorities allow it to issue National Security Letters to collect phone records and financial records, without ever getting the approval of a judge.  In 2013, the President’s surveillance Review Group recommended reforming this authority, to require court oversight for any such request.  FBI officials have sought to go in the other direction, and have said repeatedly that it would be convenient if Congress would amend the law to state that National Security Letters can be used to collect ‘electronic communication transaction records,’ to include email records, chat records, text message logs, and individuals’ internet browsing history, without judicial review.  But convenience alone does not justify such a dramatic erosion of Americans’ constitutional rights. 

If FBI officials have reason to suspect that an individual is connected to terrorism or espionage, they can already access that person’s email and internet records by simply obtaining an order from the Foreign Intelligence Surveillance Court.  These orders can be issued in secret, and require relatively little evidence – the FBI simply needs to assert that the records are “relevant to an investigation.”  But requiring the approval of an independent judge provides an important check against the abuse or misuse of this authority by the FBI. 

I certainly appreciate the FBI’s interest in obtaining records about potential suspects quickly.  But Foreign Intelligence Surveillance Court judges are very capable of reviewing and approving requests for court orders in a timely fashion.  And section 102 of the recently-passed USA FREEDOM Act gives the FBI new authority to obtain records immediately in emergency situations, and then seek court review after the fact.  I strongly supported the passage of that provision, which I first proposed in 2013.  By contrast, I do not believe it is appropriate to give the government broad new surveillance authorities just because FBI officials do not like doing paperwork.  If the FBI’s own process for requesting court orders is too slow, then the appropriate solution is bureaucratic reforms, not a major expansion of government surveillance authorities. 

The fact of the matter is that ‘electronic communication transaction records’ can reveal a great deal of personal information about individual Americans.  If government officials know that an individual routinely emails a mental health professional, or sends texts to a substance abuse support group, or visits a particular dating website, or the website of a particular political group, then the government knows a lot about that individual.  Our Founding Fathers rightly argued that such intrusive searches should be approved by independent judges.     

It is worth noting that President George W. Bush’s administration reached the same conclusion.  In November 2008, the Justice Department’s Office of Legal Counsel advised the FBI that National Security Letters could only be used to obtain certain types of records, and this list did not include electronic communication transaction records.  The FBI has unfortunately not adhered to this guidance, and has at times continued to issue National Security Letters for electronic communications records.  A number of companies that have received these overly broad National Security Letters have rightly challenged them as improper.  Broadening the National Security Letter law to include electronic communication transaction records would be a significant expansion of the FBI’s statutory authority.      

And unfortunately, the FBI’s track record with its existing National Security Letter authorities includes a substantial amount of abuse and misuse.  These problems have been extensively documented in reports by the Justice Department Inspector General from 2007, 2008, 2010 and 2014.  As one of these reports noted, “the FBI [has] used NSLs in violation of applicable statutes, Attorney General guidelines, and internal FBI policies.”  No one in the Senate should be surprised by this pattern of abuse and misuse, because this is unfortunately what happens when federal agencies are given broad surveillance powers with no judicial oversight.  In my judgment, it would be reckless to expand this particular surveillance authority when the FBI has so frequently failed to use its existing authorities responsibly. 

Privacy and Civil Liberties Oversight Board

Separately, I am troubled that this bill would erode the jurisdiction of the independent Privacy and Civil Liberties Oversight Board, for the second year in a row. 

Specifically, the bill would narrow the Board’s statutory jurisdiction to cover only programs that impact the privacy and civil liberties of U.S. persons.  To date, the Board’s oversight has focused very much on U.S. persons, and in my judgment this is entirely appropriate.  But if senators wanted to encourage the Board to maintain this focus, that could be accomplished by simply stating the Sense of the Senate.  Instead, this provision amends the law to limit the Board’s official purview.

This is concerning because in the digital domain individuals’ U.S. or non-U.S. status is not always readily apparent, and restricting the Board in this way could discourage or even prevent the Board from examining programs whose impact on U.S. persons is not clear at first glance. 

Additionally, while I support the Board’s current focus on US persons, it is easy to envision situations in which tasking the Board to produce a one-time report that also looked at non-U.S. persons might be appropriate.  This provision appears to prohibit the Board from taking on such projects.

Furthermore, I would note that over the past few years the Executive Branch has made real efforts to mitigate the diplomatic and economic damage that overly broad surveillance activities have caused.  These efforts continue to be a work in progress, and foreign regulators continue to raise concerns about U.S. surveillance as justification for opposing agreements that would benefit American consumers and the U.S. tech industry.  I am therefore concerned that narrowing the Board’s jurisdiction and signaling that the U.S. has no regard for the privacy of other countries’ citizens would play into the hands of foreign protectionists. 

Finally, I am troubled by the message that this provision would send.  Over the past three years, the Privacy and Civil Liberties Oversight Board has done outstanding and highly professional work.  It has examined large, complex surveillance programs and evaluated them in detail, and it has produced public reports and recommendations that are quite comprehensive and useful.  Indeed, the Board’s reports on major surveillance programs are the most thorough publicly available documents on this topic.  My concern is that by acting to restrict the Board’s purview for the second year in a row, and by making unwarranted criticisms of the Board’s staff in this report, the Intelligence Committee is sending the message that the Board should not do its job too well.  And I do not believe that is a message that the full Senate should endorse.  

Unfortunately, while I appreciate that this bill includes a proposal that I and a bipartisan, bicameral group of colleagues have put forward to allow the Board to hire staff even when the Board’s chair position is vacant, the inclusion of this provision does not outweigh my substantial concerns with this bill. 

I will continue to oppose this bill as long as the objectionable provisions noted above are included. I hope to be able to work with colleagues to remove these provisions prior to consideration of the bill by the full Senate.  Until then I will object to the proposal to pass this bill by unanimous consent.