Rand Paul

Mr. PAUL

Mr. PAUL. I thank the Senator for that question. I think there is a new sort of political rhetoric attacking encryption, but I think there will be more efforts. This article is from about a year ago, but I think what is going to happen from this--and what I have been hearing from people--is there is ultimately going to be encryption that is not housed by any company. They are going to have encryption--the only way to get to the encryption is through the individual. This is being done because the government has overplayed their hand. Because the government has been such a bully on this, companies are going to continue to get further and further away. What they are going to do is the encryption will only be in control of the user. When that happens, the government is not getting any information at all. So they are taking a tool that probably has been useful to a certain degree--and I don't mind if we are doing it through warrants and specific extradition--but I think they are pushing companies so hard that I think encryption is going to be put in a place where even the company cannot get to it.

Mr. PAUL. Yes, without losing the floor.

Mr. PAUL. I thank the Senator from Montana, and I think that is further evidence that there is bipartisan support for the Constitution. The PATRIOT Act went too far. We have heard from both Senators from Montana, from opposite parties, who both wanted to defend the individual, wanted to defend the Bill of Rights, and think that we have let the government go too far. I think the American people agree with this as well. I think without question--this is one of those things that are kind of perplexing, if you think about it. If you ask most Americans, if you do a poll or a survey or ask most Americans ``Should the government be allowed to look at your phone records without any suspicion that you have committed a crime?'' I think there are a very low number who think that. But then when you get to Washington, it is almost the opposite. You have people in Washington who have, I think, viewpoints that are really out of step with what the American people want. I think the American people really have decided that the bulk collection of records is wrong, that it is unconstitutional. The second highest court in the land has said it is illegal. Yet, you still have a significant body of people in this country saying: Not only keep doing it, let's do more of it. The problem is that if we are going to allow records to be collected without individualized suspicion, what we are doing is allowing something, when we talk about bulk collection, that has no sort of determinants for what suspicion is. You can imagine what the danger of that is if you apply that to everything. Also, in an age where we have computers that can analyze and hold so much information--they are building them bigger and bigger and gathering more and more and processing this information--there is great danger that could come from this. I wrote something about ``1984'' a couple of years ago, and I said when I read it the first time--and a new big brother, you know, was the danger of all these things. I thought, Oh, this is terrible. But I felt comforted. I read it probably in 1978. We didn't have the technology to eavesdrop on everyone. We didn't have the technology to know everyone's whereabouts. We didn't have the technology to have cameras in every house. In the book, they talked about looking at people back and forth through two-way televisions and monitoring. Everybody, as you know, had to be careful where books were placed. You had to read in secret basically. But because the technology didn't exist when I read ``1984,'' I really wasn't as concerned about it. But the thing is that you don't lose your freedom in one fell swoop; you lose it a little bit at a time. People say: Well, the people doing this are good people. It is like the President said. When the President signed legislation a few years ago that said that an American citizen can be detained without a trial, he said: But I am a good man, and I won't use this power. It is sort of a fundamental misunderstanding of law and the rule of law that you think that the goodness of yourself or the goodness of the individuals around you somehow is the protection of the law. The law is really to protect you against bad people. The law is to protect you when bad people get in office. The law--and those who believe in the rule of law--is based on the fact that there is an understanding that in the time of history, people were democratically elected who were bad people and that people, once given power, become addicted to it and they want more of it. Lincoln once wrote that any man can stand adversity, but if you want to truly challenge a man, give him power. That is what we are talking about. We are talking about unlimited power. We are not even talking about power that is constrained by law at all. The whole idea that the PATRIOT Act has anything to do with the bulk collection is a farce. The President's privacy commission has really put this in bold for us, that really there is nothing about the PATRIOT Act that has any resemblance to what we are doing with bulk collection. So that is not only the rule of law, that is people within government, within the executive branch, who have made the decision that they are going to do whatever they want. One of the things that worries me about this debate--and I think it is good that we are having the debate--there is apparently a section of the PATRIOT Act as we passed it the last time that says that if the PATRIOT Act is not extended, all things previously being investigated before will continue. So we really kind of have a perpetual PATRIOT Act, if you will. That worries me a little bit, but then it worries me a little more that we are not even really paying attention to the PATRIOT Act; we are doing whatever we want. It is sort of a lawlessness that allows us to collect bulk records because there is no relevance to an investigation. As they said in the privacy commission, we are collecting the records before there is any investigation. So there is no relevancy to an investigation. The investigation hasn't started yet, unless the investigation could be defined as everything. I like the way they put it. They said we would have to destroy the definition of ``relevancy'' to believe that there is any component of relevancy to these investigations. But we are collecting records of every American all of the time right now. It may not be just phone records; they say the biggest source of collection now is probably actually through section 702 of FISA, the FISA amendments. We are not exactly clear who gets scooped up in that. Once again, if these are the records of foreigners, if these are the records of people bent upon attacking us, I am all for getting that. But the way they are collected--and by some allegations, intentionally so--we are sometimes targeting a foreigner, so we don't have to use a standard at all in order to get information on an American. So let's say they want information on you. I am not sure why, because some of this is being used for drug crimes and domestic crimes. So let's say they want information on you and they don't want to get a warrant or a judge says no. In fact, that sometimes happens, that the FISA Court judge says no and then they use one of these other end- around ways that don't even require a FISA Court judge. The level of lawlessness is appalling. The level of lawlessness is astounding. It disappoints me that the President, who was once considered by some to be somewhat of a civil libertarian, does nothing. When the President ran for office, the President said that national security letters ought to be signed by judges. He was in the exact same place where I am on civil liberties with regard to these warrants, the national security letters. Yet, his administration issues them by the hundreds of thousands. I don't think they are even reporting these anymore for us. I think they were reporting them for a few years, but we are no longer getting information. But it disappoints me that the President is not really willing to do anything about this. The President could end the bulk collection tomorrow. It is done by Executive order; it could be undone by Executive order. It is disingenuous, at the very least, that the President says: Oh, yes, we are going to balance liberty and security. Well, no, he is not. He is not balancing anything. He is just continuing to collect all of our records without a warrant. He is continuing to do bulk or general collection of records without a warrant. I think the American people are ready for us to be done with this. My hope is that during today we will call attention to this and that the American people will say: Who are these people who want to keep collecting our records without a warrant, and why do they still want to do this when the people who have investigated it have determined that no one has been captured by this program, no one has been uniquely identified by this program? So there really is a consideration of whether we are going to listen to the American people. Are we going to wake up? Are we a representative body? This question is, Are we going to allow a debate on something that only comes around every 3 years or are we going to say ``My goodness, it is the weekend, it is Memorial Day weekend, and we are up against a deadline, and we just don't have time to listen to this. We don't have time to talk about the Bill of Rights because we just don't have time. I know it has been 3 years that we have known this date was coming up, but we don't have time''? I think at the very least we could make time, and that is my request today. My request of the leadership on both sides of the aisle is: Can we not make time? There are at least 10 or 15 of us who will cosponsor about 5 or 6 amendments that we want votes on. Frankly, I think with the mood of the country, we have a chance on a few of these. I would like to see how a vote would turn out on the idea, for example, that we are using a less-than-constitutional standard to gather information that we say is for terrorism, but then we put people in jail domestically for crimes that are completely and entirely unrelated to terrorism; that whether or not we can use information gathered in a nonconstitutional or a less-than-constitutional way is going to be used for domestic crime. If you believe that, it means we are carving out in our domestic laws an area where the Constitution doesn't entirely apply. Section 213 allows the entering of the house in a nonconstitutional way--a way that, if it were done in a straight-up fashion, the courts would say it is illegally gathered information and wouldn't be admissible in court. I think we ought to have a vote. Is the PATRIOT Act our less-than- constitutional means of gathering information to be used in domestic court? Here is the other question, if they will be honest with us: Are they using them in any other courts? Are there IRS investigations that begin as terrorist investigations but end up in IRS court? In some ways, I think yes is the answer. We have now the IRS basing investigations of people maybe for political purposes but definitely for the purposes of whether individuals are doing transactions in certain ways or whether their records are in a certain way. And because it is done this way, we are not really requiring convictions before we take their stuff. This is a separate but related problem because it has to do with using records to gain entrance to people and to then take their stuff without a conviction. I think that is an important question. Are we innocent until proven guilty? Are we really going to allow the government to take possession of your things, to take possession of your things without a conviction? I would think the presumption of innocence is an incredibly important doctrine that we shouldn't so casually dismiss. This is a poll that was commissioned by the ACLU on Monday, and they asked a sample of 300 likely voters between the ages of 18 and 39 a few questions. It says: Which of the following statements about reauthorizing the PATRIOT Act do you agree with more? Some people say Congress should modify the PATRIOT Act to limit government surveillance and protect Americans' privacy. Sixty percent agreed. Other people say Congress should preserve the PATRIOT Act and make no changes because it has been effective in keeping America safe from terrorists and other threats to national security, like ISIS or Al Qaeda. That was 34 percent. Those are the overall numbers. If you look at it by all parties-- Democrats, Independents, and GOP--it is 58 percent or greater. In fact, Democrats and Republicans are pretty equal, which is interesting, with 59 percent of Democrats and 58 percent of Republicans thinking we have gone too far in the PATRIOT Act and that Americans' privacy is being disturbed by the PATRIOT Act. If you look at Independents, it is 75 percent among men who are Independent and 65 percent among women who are Independent. The survey asked people: Do you find it concerning the U.S. Government is collecting and storing your personal information, like your phone records, emails, bank statements, and other communications? Eighty-two percent are concerned the government is storing this information. Over three-quarters of voters found four different examples of government spying personally concerning to them: The government accessing personal communications, information or records without a judge's permission--83 percent--using that information for things other than stopping terrorists, such as I mentioned, doing convictions for drugs, were the most compelling examples for voters. With regard to whether the government accesses any of your personal communications, information or records you share with a company without a judge's permission, people were asked to tell them whether they were concerned with this issue. Eighty-three percent were concerned. When asked about the government using information collected without a warrant for things other than stopping terrorist attacks, 83 percent were concerned. When asked about the government allowing private companies to use public school technology programs to track online activities of schoolchildren, 77 percent were concerned. When asked if the government performs instant wiretaps on any phone or other telecommunications devices located in the United States, 76 percent were concerned. From this ACLU study of young people--I believe they were all ages 18 to 39--participants were asked whether or not these were conditions that would lead you to believe that Americans need more protections of their privacy: Local police and the FBI need a warrant issued by an independent judge for a valid reason before they search your home or property without your permission; the same should be true of your email and phone records. And 84 percent agreed. If you ask that question in Washington, it is about a 10 or 15 percent question. Most people in Washington don't think your email or your phone records should be protected by needing a warrant. But if you ask most Americans the question--particularly young Americans--should your email or your phone records be protected by a warrant? Most people say yes. The government requires some companies to intentionally include security loopholes in their services to make it easier for law enforcement to access your information. These are these backdoor things where they can insert malware. This makes the government less safe by leaving us vulnerable to terrorists and spies of foreign countries who want to harm the United States. Eighty-one percent were concerned with this and thought we should have more privacy. I think it is clear the American people are concerned about what we are doing. What isn't yet clear is whether the message has been transmitted to Washington; whether or not there is enough of a majority growing in Washington to actually do something about this. But I think the numbers are growing. Over 300 people in the House acknowledged there was a problem and passed legislation. I have mixed feelings on the legislation. I think, without question, I agree with those who voted for it that bulk collection of records is wrong and that it should end. I have been a little more in the camp, though, that we should just end the bulk collection of records and replace it not with a new program but with the Constitution. I personally think we could survive with the Constitution. I think we could also survive and catch terrorists with the Constitution. In fact, I think we can get more information with the Constitution. I think valid warrants are much more powerful. A valid warrant allows a great deal more information and it is also specific. Once we are doing valid warrants, we are not doing this sort of dragnet. We are not doing this sort of vacuuming up of everything. We are not becoming overwhelmed with a lot of incidental data. We are specifically going to the heart of things. We are specifically going to the core of whether we can actually get the people who are attacking us. When we look at the privacy report we have talked a little bit about--the Privacy and Civil Liberties Oversight Board, a bipartisan board that basically said very explicitly to the President that what he was doing is illegal--it does still boggle my mind the President was told by his own privacy board what he was doing was illegal and he just keeps doing it. It somewhat boggles the mind that he was told by the appellate court that what he is doing is illegal and yet he just keeps doing it. It is an incredible deflection. It is incredibly disingenuous when the President says: Well, we are going to balance liberty and security, and I am just waiting for Congress to tell me what to do. Well, he didn't wait for Congress to tell him to collect the phone records. In fact, we never did such a thing. Even the people intimately involved with passing the PATRIOT Act-- those who were the cosponsors and authors of the PATRIOT Act--have all said they never intended and don't believe the PATRIOT Act gives any justification for bulk collection of records. So Congress never authorized the bulk collection of records. Two different Commissions the President has put forward--the privacy and civil liberties as well as the review commission--have both told him it is illegal. Yet he keeps going on. I have heard very little questioning of the President or his people about this. I kind of wonder why we don't ask more questions, why we just sort of accept that a program that is said to be illegal by the courts, a program that is said to be illegal by two different independent commissions--why wouldn't we just stop it? Why does the President not have the wherewithal to stop it? It disappoints me. The program was actually begun even before the PATRIOT Act was finalized. We did this for a couple of years simply by Presidential edict. This is another concerning development in our country; that more and more of our government is run by Executive edict or by Executive order--thousands and thousands of Executive orders. In the 1950s, we had a discussion of Executive orders. I think it is the only time it has gone to the Supreme Court with the Youngstown Steel case. In that case, the Court came down and said there are three different kinds of Executive orders: There are Executive orders that are clearly in furtherance of legislative action, and those are perfectly legal. There are Executive orders that are debatable, whether they further legislative action or not. But then there are some Executive orders that are clearly in defiance of what the legislature has done, and these are clearly illegal. And the Supreme Court struck down what Truman had done. I think we need to revisit that debate. Because what is happening in our country--and it may well be the biggest problem in the country and is part of what is going on with this bulk collection but really is part of a bigger problem--is that power has drifted away from Congress or has been abdicated and given up. We gave the power to the Presidency, and we didn't do it just in one fell swoop. It wasn't just Republicans. It wasn't just Democrats. It was a little bit of both, and it has been going on for probably over 100 years now. I think it accelerated in the era of Wilson, but over decades it has gotten bigger and bigger and bigger. Under the New Deal, the executive branch grew an alarming amount, but more recently it continues to grow by leaps and bounds. It may well be that the No. 1 issue we face as a country is that we have had what some have described as a collapse in the separation of powers. Madison talked about that each branch would have ambition to protect their own power; so we would pit ambition against ambition and then each would jealously guard their power, and, as such, power wouldn't grow. Power would be checked. But power has grown. It has grown alarmingly so and mostly grown and gravitated to the executive branch. In the short time I have been here, I have seen that in many ways the least of our bureaucrats are more powerful probably in some ways than the greatest of our legislators, and the most powerful of our legislators are somewhat of less power than bureaucrats. Almost every constituent that comes to talk to me from Kentucky and has a problem with government--as we explore the problem and explore the solution, we discover that Congress didn't pass their problem. Congress didn't write the rule that is beleaguering them. Congress didn't inflict the punishment that is making it difficult for them to run their business. It was done by an unelected bureaucrat. This has grown, and sometimes it has grown from even when we had good intentions. We tried to do the right thing and it turned out wrong. Probably that is really the story of Washington as well. Take even the Clean Water Act. The Clean Water Act I support. I would have voted for it from 1974. It says you can't discharge pollutants into a navigable stream. I agree with that. The problem is that over about a 40-year period we have come to define dirt as a pollutant and my backyard as a navigable stream. So, once again, we have taken our eye off the prize. The things we really ought to have the government involved with--big bodies of water, bodies of water between the States, rivers, lakes, oceans, air--there is a role for the government to be involved. But because we have people abusing the rights of private property owners and saying, if you put dirt in your backyard, we will put you in jail, it has become sort of to the point of craziness. But it is all executive branch overreach. There was a case that went to the Supreme Court a few years ago in Idaho. A couple lived near a lake but about a mile from a lake. They didn't live on the lake. It was on an incline, and there were houses on both sides of their property. So they bought their property and started doing what everybody else did--back-hoeing, creating a footprint, filling it and putting down footers. The EPA showed up and said: You are destroying a wetland, and we are going to fine you $37,000 a day. They were kind of like: Well, I thought if it were a wetland, there would be water or standing water or it would look like the Everglades or there would be some sort of evidence that it was wetlands. The EPA said: Yes, there is evidence. If any one of 300 different species of plants grows in your backyard, we can define it as a wetland. If we can take leaves and flip the leaves over and they are black on the bottom, it indicates there is moisture on the leaves and you could be a wetland. This all came out of crazy executive overreach. We did not do any of that. Congress did not do one iota of this expansion. It was done some by these law courts--these EPA courts--but it was done a lot by executive definition of what a wetland is. In the early 1990s, under a Republican President, we redefined wetlands. They commissioned a book--a 150-page book, 200-page book--and they just redefined what a wetland was. By redefining what a wetland was, we doubled the amount of wetlands in the country overnight--not by preserving land but by redefining a lot of land that really is not a wetland. Now, through the waters of the United States, we are connecting everybody to the ocean somehow and saying that every bit of land is somehow connected to navigable water. I was talking to one of the Senators from Idaho a year or so ago and I liked what he told me. He told me: In Idaho, we have a very precise definition of what a navigable stream is. You put a log in of a two- inch diameter, and it has to float 100 feet in a certain period of time. I just loved the definition of it because that sounds like a stream that is probably moving and there is water in it. But we now say a crevice in the side of a mountain, if when it rains water goes over, it is a stream. But as a consequence, we are shutting down America. People complain about jobs, but they are all for these regulations, and then they complain that they don't have a job. One gentleman decided he was going to put dirt on his land in Southern Mississippi. It was what he considered to be uplands. There were trees growing on it, so usually trees are not really a typical feature of wetlands. His daughter was 43 at the time and he was 70. They were going to develop the lots and sell the lots, and so he dumped some dirt there. The EPA got involved and they convicted him using the RICO statutes. This is what you are supposed to get gangsters and drug dealers with. It was conspiracy. They got him for conspiracy to violate the Clean Water Act by putting clean dirt on his own land where there was no water to begin with. He was given 10 years in prison. He just got out of prison about a month ago. He is now 80 years old. That is what is happening in America. So if you wonder why some of us are worried about our records being snatched up, we are worried that our own government has run amok, that our own government is out of control, and that our own government is not really paying attention to us. To put a 70-year-old man in prison for 10 years for putting clean dirt on his own land--the person who did that ought to go to jail. They ought to be put in a stockade, publicly flogged, and made to pay penance for a decade for doing something so stupid. But the thing is this is going on. A guy named John Pozsgai was a Hungarian immigrant. He came here from communism and he loved our country. He worked hard and he had a mechanic shop in Morristown, NJ. It wasn't in the greatest part of town. It was a commercial part of town. Across the street from him was a dump. It did flood on occasion, but the reason it flooded was because the ditches were full of 7,000 tires. People were just throwing all kinds of crap there. There were all kinds of rotted-out automobiles. It was a junkyard, so they had thrown all this stuff out there. He bought the land pretty cheaply because it was a junkyard, and he decided to clean it up. He picked up 7,000 tires. He picked up all the rusted automobiles. And, lo and behold, when he cleaned the drainage ditches, it no longer flooded. But he started putting some dirt on there and the government said he was breaking the law and that he was once again contaminating the wetlands. He was a Hungarian and he didn't like to be told what to do, and I can understand the sentiment. So he just kept putting dirt on there. He decided to do it at night, and they caught him because they spent--I don't know--a quarter million dollars on cameras and surveillance to catch a guy putting dirt on his own land. He was bankrupted. They put him in jail for 3 years, they fined him 200-and-some thousand dollars. They wiped him out so he couldn't pay the taxes. They broke his spirit. I met his daughter. It is just a tragic case. So if you wonder why some of us are worried about the government having all of our records-- I talked earlier about what happened in Westchester, and this is an appalling thing. This should make you concerned about having records. In Westchester--I think that is where the Clintons live. Anyway, they decided they would reveal all the gun records. So in Westchester they revealed whether you had a gun or didn't have a gun and where you lived. Can you imagine how that might be a problem? Let's say you are a wife who has been beaten by your ex-husband and you live in fear of him and you either have a gun or you don't have a gun. Either way, you don't want your ex-husband to know where you live. And particularly if you don't have a gun, you don't want your ex-husband who beat you to know you don't have a gun. Think if you are a prosecutor or a judge. They get threatened by the people they put in jail. Would you want your name in the paper with your address and that you have a gun or don't have a gun? So you can see how privacy is kind of a big deal. Privacy can mean life and death in that kind of situation. I think we ought to be more cognizant of what a big deal this is and what a big deal the Bill of Rights is. We shouldn't be so flippant that we are like: Oh, yes, whatever. We have to be safe. Maybe we catch a terrorist, maybe we don't, but we have to do this and we just have to give up some of our freedom to be secure. It turns out, though, when we look at the objective evidence, it doesn't appear we are safer. It appears that when they have alleged that we are safer, what has happened is that it doesn't look like we have gotten any unique intelligence from these things. I think there is probably nothing more important than discussing the Bill of Rights and talking about our civil liberties. I think we need to have an adequate debate. It is supposed to be what the Senate was famous for. My hope is that from drawing some attention to this issue today we will get an agreement, and that is the agreement we are going to ask for. We are going to ask for an agreement from both parties to allow amendments to the PATRIOT Act, and we could start any time they are ready. If somebody wants to send a message to the leadership that if they are ready to come out and allow debate and allow amendments on the PATRIOT Act or a promise to do this before the expiration, we could probably get something moving. I think the American people are ready for that debate. We can look at the statistics, particularly among young people. It is a 70- to 80- percent issue, where young people are saying, for goodness' sake, we don't want our records scooped up and backed up by the government without any suspicion. I think also young people get this more than others because they are used to their records being digital, they are used to their records being on their phone. They are very aware that their records are stored on a server somewhere, and they have grown to expect privacy. Some say, oh, that is crazy. Young people share their information all the time. Well, you do and you don't. I share my information when I buy things online, but I am sharing it through an agreement. The people I share it with, the companies that then market other things to me, have agreed, through a privacy agreement, not to share my information, not to sell my information. I am to be anonymous. They will market to me, but they promise to keep me anonymous. We are comforted by the fact that we have a privacy agreement, and that if millions of people sued them, they couldn't get away with revealing our information. What I don't like about some of the different things we are doing-- and this includes the USA Freedom Act--is that we give liability protection. When we give liability protection, I think it is an invitation to say: You know what. Your privacy agreement isn't really that important, and if you breach it, nobody is allowed to sue you. So I think that is something we ought to be very careful with, and if we do end up having a debate on this and we do end up having amendments on this, that we consider taking out the liability protection. I also think the most important thing is if we decide that bulk collection is wrong, we need to understand how you get bulk collection. You get bulk collection because you have a nonspecific warrant. You don't have an individualized warrant; you have a general warrant. This is what we have been fighting since the time of John Wilkes in 1760 in England, to James Otis in the 1760s here through John Adams. The debate and the thing that we found most egregious, the thing that we found most objectionable was the idea that a warrant for your information wouldn't have your name on it, it wouldn't be individualized or that it wouldn't be without suspicion or that it would occur without a judge's warrant. It really was one of the things that annoyed us more than anything else. One of the things that Adams said was the spark of our war for independence was just the sheer gall of British soldiers coming into our house without a warrant because most of the records are in your house. We don't see basically the physical and abrupt entry into your house anymore, but it happens nonetheless. It happens in just less of a physical way because your records are virtual now. But how we let people come into our house is pretty important. On the issue of warrants--this isn't specific to the PATRIOT Act, but it is a related issue. The issue is whether we should allow people to come into our house in the middle of the night with what is called a no-knock raid. The sneak-and-peek, they come in and leave. But the no- knock raid, you know they are there when they come. The problem is that people were being woken up in the middle of the night and they were grabbing their gun by their bedside. If they are in a high-crime neighborhood, they have a gun by their bedside and they are sometimes shooting the police. Mostly they are looking for drugs. I hate drugs about as much as anybody. I have seen addiction to drugs, I have worked with people as a physician and I know what it is like. But the thing is that barging through doors in the middle of the night leads to accidents in both ways: Police get shot; police accidentally shoot the victims sometimes. In Modesto, I think in 2002, they burst into a home at 1 or 2 in the morning, yelled and screamed: Everybody get on the ground. There was an 11-year-old kid. He got on the ground, and the officer's shotgun accidentally discharged. It was an accident, but it didn't help the kid. He died. The thing is, do we really need that? Do we need to come in the middle of the night looking for marijuana or any kind of drug? Couldn't we come in the daytime and knock on the door and say: We have a warrant. I know police work is not without risk and people do shoot back at them. So I understand where they are coming from, and I want to protect them and for them to be safe. I want to protect the police, but I actually think it protects the police more if we go in the way we do with traditional warrants and not without unannounced warrants. Of course, there are different circumstances or exigencies. There are times when the police go in without any warrant at all. If there is something imminent going on or some threat of a danger or situation inside, the police go in. I think, for the most part, we are better off if we do things and do them in the traditional way with warrants. When we talk about how warrants have changed, one of the changes is the standard for what the warrant is issued with. Even if it were individualized, if it says that you only have to say they are relevant to an investigation. That is a big step down from probable cause. People have defined ``probable cause'' over time in different ways. This is from Ballentine's Law Dictionary. A common definition of ``probable cause'' is ``a reasonable amount of suspicion, supported by circumstances sufficiently strong to justify a prudent and cautious person's belief that certain facts are probably true.'' Some lawyer must have written that. But you can kind of get a little bit of understanding that we are supposed to go through some kind of thought process and there is supposed to be evidence of suspicion. It is not the standard of proving guilt, proving beyond the preponderance of the fact or any kind of doubt. It is a standard, and it is a standard we have had for a long time. The Oxford Companion to American Law defines ``probable cause'' as: ``Information sufficient to warrant a prudent person's belief that . . . evidence of a crime or contraband would be found in a search. `Probable cause' is a stronger standard of evidence than a reasonable suspicion, but weaker than what is required to secure a criminal conviction. Even hearsay can supply probable cause if it is from a reliable source or supported by other evidence.'' It is kind of interesting because people are so worried about getting a warrant, even a warrant can be supported by someone making an accusation. It is not perfect. In fact, there are some people who complain warrants are too easy to get. But the thing is there is no evidence that it is really overly hard to get a warrant. If we went back to the Constitution--I had this debate years ago the last time I came up for renewal, and I was walking along with one of the other Senators who supported the PATRIOT Act. He acted as though, you know what, if it expires at midnight, what will we do? My response was maybe we could live with the Constitution at least for a while. We did for hundreds of years. Is there anything so unique about the times we live in that we could not still live under the Constitution? The Fourth Amendment has its origins in English common law. The saying that a man's home is his castle, this is the idea that someone has the right to defend their castle or home from invasion from the government. Based on the castle doctrine in the 1600s, landowners first recorded legal protection from casual searches from government. Some of the famous cases are actually in the 1760s, but even at least 100 years in advance of that, they were beginning to develop protections for people from the government. It is interesting to realize this is not a new phenomenon where we are talking about protecting ourselves from government. We protect ourselves and government helps us protect ourselves from others who may be violent against us. But we have always--for hundreds and hundreds of years--been aware that government does bad things too. If you do not ration the amount of power you give to government, you can get to the point where the great abuse comes from government itself. So they began to use warrants. But in England the debate quickly developed over whether a general warrant was adequate or a specific warrant. This is where John Wilkes comes in. This is where James Otis comes in. One of the debates over the separation of powers that we have--this is pretty commonly going on, although I think the people who believe in unlimited inherent powers are probably the majority of Washington. But there is a debate over what people call article II powers. The article II is where the Executive is given powers under the Constitution, but there are people who sort of believe in this unlimited nature. There is really nothing that restrains it. In fact, some have said even in the debate over this, the Executive Order No. 1233 that is involved in some of this records production, it is really none of our business because it is article II. It is part of the inherent powers of the President to, in times of war or times of conflict, to do whatever they need to do. I think that is a dangerous supposition, to think that really there are times when there are no checks and balances. I personally think probably one of the most genius things we got out of our Founding Fathers was the checks and balances and the division of power. Montesquieu was one of the philosophers the Founding Fathers looked to and some say when we were setting up the separation of powers that he was probably where we got the example. Montesquieu said that when the Executive begins to legislate, a form of tyranny will ensue because you have allowed too much power to gravitate to one body and you have not divided the power. The division of power was one of the--if not the most important--the most important things we got from our Founding Fathers. But we are having this collapse of the separation of powers. It is getting to be where there is an ancillary body which is Congress, and then there is the executive branch, the behemoth, the leviathan. The executive branch is so large that really the most important laws in the land are being written by bureaucrats. No one elects and no one can unelect. In an average year, there are over 200 regulations that will cost the economy $100 million apiece. We do not vote on any of them. We vote indirectly for the President, but I think that is so indirect that it is a real problem. I think what we have now is an executive branch that legislates. The collapse of the separation of powers is a collapse of the equilibrium. This equilibrium is what kept power in check. When I think who is to blame for this, it is not one party; it is really both parties. When we have a Republican in office, Republicans tend to forgive the Republican President and give them more power. When we have a Democrat in office, the Democrats tend to forgive a Democrat and give the Democrat more power. A more honest sort of approach to this or a more statesman's like approach to this would be that if we were able to have both parties stand up as a body and if there were pride in the institution of Congress--pride such that we were jealous of our power, that we were pitting our ambition to keep our position against the President regardless of the President's party affiliation--then we might have a chance. A lot of the things about collection of bulk data were not known for years and years but have been going on for a long time. One of the things I found most troubling in the John Napier Tye op-ed was that he said--he was giving a speech and he said: Well, the good news is that if the American people are upset, if they are upset about things, intelligence activities, and they think it is an overreach, they have every opportunity to use the democratic process to change things. This went through the White House censor and the White House censor-- counsel, adviser, boss--decided they needed to take that out of his speech because they did not want to imply, really, that intelligence activities could be changed through democratic action, because they took the opinion apparently that the inherent powers of article II are not subject to democratic action. When I think of the people who say that the inherent powers are unlimited and the President has these powers that are not to be checked by Congress, I do not think of a Presidency. I think of a different word, and it is not ``President.'' I am very concerned about whether we are going to let this go on. There are some other side effects that come from this. As you allow the executive branch unlimited power and as you allow the bureaucracy to grow, a consequence or a side effect has been that the debt has grown to alarming proportions. We borrow about $1 million a minute. We have an $18 trillion debt. As the debt has grown larger and the executive branch has grown bigger, your Congress men and women have grown more ancillary and more peripheral to the entire process. But I am one who believes there are limits. I think there is a limit to how much debt we can incur and how rapidly we can incur it. I think already we have seen sort of an anchor or a burden, an effect on the economy that pulls us down and causes growth to be less vibrant. Some say 1 million jobs a year are being prevented from being created because of this. I think that if we are not careful, this collapse of the separation power, this collapse of equilibrium, as we let this get away from us, we are also getting away from the control over our future. We are letting the power accumulate in such a rapid fashion that if you want to see how much power is accumulating, you can almost make the analogy of looking at the debt clock. If you go to debtclock.org and watch the debt spiraling out of control, as the debt grows larger and larger, you basically are seeing a diminishment of a corresponding diminishment of your freedom. It is of concern. It is of concern how rapidly this is happening. There are two philosophic reasons we should be concerned about power. One is that power corrupts. More basic than that is that as power grows, there has to be a corresponding loss of your freedom. I call this the liberty argument for minimizing government. Thomas Payne made this argument. Thomas Payne said that government is a necessary evil. What did he mean by that? I think what he meant by that is that you need government. We need government for a stabilizing force. There are things government needs to do. But it is a necessary evil because you have to give up your liberty to have some government. How do you give up your liberty? You give up some of what you earn. Your liberty is who you are. Your liberty is what you produce with your hands, and your liberty is what people will pay you to do with your hands, what you do to produce. That is your income. That is you. That is your liberty. If we have 100 percent taxation, I would say you have no liberty. You are essentially a slave to the State. If you have 50 percent, you are only half slave, half free. The thing is that the smaller your government, the lower your taxation and the more free you are. But it is an argument for, if you are concerned about freedom, you would want as small a government as you possibly could have that still did the things that you think are necessary. The other argument I like for why you should keep your government small is what I call the efficiency argument. The efficiency argument was best expounded by Milton Friedman, who said that nobody spends somebody else's money as wisely as their own. There is sort of a truism to that. You think about it in your own life. If I ask you for $1,000 to invest in a business enterprise, you will think: How long did it take me to earn $1,000. You will think: I had to pay taxes, I had to save, I had to pay all my expenses to get this $1,000. You will think how much you prize that, and you will not make the decision in an easy fashion. You will make your decision not perfectly, but if you compare your decision spending your money to a politician spending the money, it is just bound to be a wiser decision. It is a more heart-wrenching decision. It ends up typically being a better decision. If you ask a politician for $1 million, that might be equivalent to $1,000 or it might not mean anything to him. You might ask him for $10 million. Think about it this way: We gave $500 million to one of the richest guys in our country to build something that nobody seemed to want, and he lost all of the money. And you think to yourself, do you think the person in the Department of Energy that gave $500 million to one of the richest guys in the country to build something we didn't want feels bad or doesn't sleep well at night? No. I think they gave that person the money because that person was a big contributor. They were an activist for their candidate, so when the candidate got in power, they used the Department of Energy as their own personal piggybank to pass out loans to their friends. Nobody feels bad about the fact that they lost the money because it wasn't their money. It is the efficiency argument for why you should think the government should be small. Before the PATRIOT Act, there was something called Stellar Wind. This was a secret also, and we didn't learn about this for many years, but this was started immediately after 9/11 and was revealed by Thomas Tamm at the New York Times in 2008. But it was basically a prelude to the bulk collection we are having now. The amazing thing about bulk collection is none of this is new. It has been going on now for 14 or 15 years. It doesn't make it any less objectionable, but it is not new. We have now had bulk collection under two different administrations. One administration got a great deal of grief for this, and then the next party ran and said: We are going to change these things and do things differently. And they did them the same or more so. There really had not been any change, and I guess that is why some people are concerned as to whether we will truly get change. The program's activities in Stellar Wind involve data mining of large databases of communications of American citizens, including emails, telephone conversations, financial transactions, and Internet activity. William Binney, a retired leader within the NSA, became a whistleblower because he believed these programs to be unconstitutional. The intelligence community was also able to obtain from the Treasury Department suspicious activity reports. So we are back to these banking reports that are issued. If we decide to fix bulk records and try to do something about this injustice, the main thing is we should be aware that this is not the only program. There are probably a dozen programs. There are probably another dozen we have not even heard of that they will not tell any of us about. And realize that they are not asking Congress for permission; they are doing whatever they want. We did not give them permission under the PATRIOT Act to do a bulk collection of phone records. They are doing it with no authority or inherent authority or some other authority because the courts have already told them there is no authority under the PATRIOT Act. There is also no commonsense logic that could explain--no commonsense logic that could say there is a relevancy to all the data of every American. When Stellar Wind came about, there were internal disputes within the Justice Department about the legality of the program because the data was being collected for large numbers of people, not just the subjects of FISA warrants. The Stellar Wind cases were referred to by FBI agents as pizza cases because many seemingly suspicious cases turned out to be food takeout orders. Imagine also that if we are looking for interconnecting spots, a lot of people order pizza. According to Mueller, approximately 99 percent of the cases led nowhere. Nevertheless, internal counsel for the administration said that because the Nation had been thrust into an armed conflict by foreign attack, the President has determined in his role as Commander in Chief that it is essential for defense against a further attack to use these wiretapping capabilities within the United States. He has inherent constitutional authority to order warrantless wiretapping. The memo goes one step further. It says that the President has the inherent constitutional authority to order warrantless wiretapping--we are talking about warrantless, not any kind of a subpoena--an authority that Congress cannot curtail. If we really believe bulk collection is wrong and if we really believe we need to be a check and balance on the President, we should just be getting started with reining him in on bulk collection because the President--this was the previous administration--says these authorities they are using cannot be curtailed by Congress. If you talk about a Presidency that has powers that are not checked by Congress, I don't think you are talking about a Presidency here. There is another name for that kind of leader, but it is not ``President.'' The argument here is astounding. The argument here is that they can collect anything they want without a warrant because the President has the inherent constitutional authority to order warrantless wiretapping--an authority Congress cannot curtail. I think that is alarming. A few years later, the Office of Legal Counsel came back--this is also from the administration--and concluded that at least the email program was not legal, and then-Acting Attorney General James Comey refused to reauthorize it. William Binney, a former NSA code breaker whom we have talked about and who is a whistleblower, talked about some of the activities of the NSA and said they have highly secured rooms that tap into major switches and satellite communications at both AT&T and Verizon. The article--I believe this was the New York Times--suggested that supposedly dispatched Stellar Wind--supposedly they were no longer doing this--continues as an active program. This conclusion was supported by the exposure of room 641A in AT&T's operation center in San Francisco in 2006. It gets back to the trust factor. The Director of National Intelligence said they were not collecting any bulk data, but he wasn't telling the truth. They tell us Stellar Wind ended back in 2005 or 2006, but then we find a room at AT&T that is still hooked up directly to the NSA. I would like to see the phone companies be better defenders of our privacy, but with the PATRIOT Act, we gave them immunity. Even if there were some individuals in the phone companies who cared about your privacy and thought your phone conversations should be protected, why do it? You can't sue them. If you have a privacy agreement with your phone company, they don't care. Nobody can sue them. You have no protection. You have no standing in the court to protect yourself. That is one of the problems with the USA FREEDOM Act, is that we are giving liability protection once again to the phone companies for something new. One question I would ask, if there was anybody who would actually tell me the answer, would be, if we already gave them liability protection under the PATRIOT Act, why are they getting it again under the USA FREEDOM Act unless we are asking them to do something new that they didn't have permission for? The other thing about the USA FREEDOM Act is that if we think bulk collection is wrong, why do we need new authorities? Why are we giving them some kind of new authority? Are we restricting our authority in section 215 of the PATRIOT Act on one hand and then expanding it on another? I think when people are dishonest with you, you are right to be doubtful and you are right to try to circumscribe and to put their power in a box so you can watch them and make sure they are honest. In June of 2013, the Washington Post and the Guardian published an article from the Office of the Inspector General--a draft report dated March of 2009 that detailed the Stellar Wind Program. So in 2009, there was evidence that Stellar Wind was still going on. And realize that Stellar Wind is not what we are talking about. Stellar Wind would be other bits of information that are being collected beyond your phone records. I think if we had somebody here or if we had somebody who would honestly tell us, I would sure like to know if they absorb and collect all of our credit card information. I have a feeling it is probably done. I don't know, and I have not been told, so I am not revealing a secret. I guess it is done. I am guessing all of your records are collected because the thing is, we have the audacity of the executive branch saying they have inherent constitutional authority to do anything they want, to order warrantless wiretapping. According to the executive branch, they have an authority that Congress cannot curtail. That doesn't sound like the Office of the Presidency to me; it sounds like a governmental official whom you have no control over. It sounds inconsistent or antithetical to a constitutional republic. How can you have a Presidency that has unlimited power? That is what they are telling you. They are telling you it is in the service of good. We are going to catch terrorists, and we are going to do good things. We are going to look at all of your information, but we are never going to abuse your privacy. During September 2014, the New York Times asserted, ``Questions persist after the release of a newly declassified version of a legal memo approving the NSA Stellar Wind program, a set of warrantless surveillance and data collection activities secretly authorized after 2001.'' The article addressed the release of a newly declassified version of the 2004 memo. Note was made that the bulk program-- telephone, Internet, and email surveillance of American citizens-- remained secret until the revelations by Edward Snowden and that to date, significant portions of the memo remain redacted in the newly released version as well as that doubts and questions about its legality continue to persist. When we go back to the Privacy and Civil Liberties Oversight Board, as they get closer to their conclusion, they talk once again about the idea that you are only hearing one side. I think that no matter how honest and no matter how patriotic people are, one side just won't do it. You can't find the whole truth when only the government presents their position. The Privacy and Civil Liberties Oversight Board said that the proceedings with only one side being presented raised concerns that the court does not take adequate account of positions other than those of the government. They recommended the creation of a panel of private attorneys and special advocates who can be brought into cases involving novel and significant issues by FISA Court judges. I think this would be a step in the right direction, but I think also that what we need to do is we should really probably give you the ability to have your own attorney. If this is a court proceeding, I think you need your own attorney so you have somebody who works for you and is your advocate. But a special advocate would be better than what we have. The Board goes on to conclude that ``transparency is one of the foundations of democratic governance. Our constitutional system of government relies upon the participation of an informed electorate. This in turn requires public access to information about the activities of the government. Transparency supports accountability.'' I could not agree more. It is even more important when we talk about the intelligence agency because of the extraordinary power we give to these people, the extraordinary power we give them to invade our privacy and to have tools to invade our privacy. We have to trust them, so there needs to be a degree of transparency. But transparency doesn't have to involve state secrets. It doesn't have to involve codes or names. But the transparency needs to involve what they are doing. Do we think any terrorist in the world doesn't realize that all of the information is being scarfed up? It is not a secret that they are doing this. So we should have an open debate in a free society about how it should be done and whether we can gather information in a way that is consistent with the Constitution. When we get to the Privacy and Civil Liberty Board's recommendations, they have several good recommendations. No. 1, the government should end its section 215 bulk telephone records program, period. They say that the program as it is constituted implicates constitutional concerns under the First and Fourth Amendments. This is the President's Privacy and Civil Liberties Oversight Board. Without the current section 215 program, the government would still be able to seek telephone calling records directly from the communications providers through other existing legal authorities. I think the other existing legal authorities could be the Constitution. Could we not just call a judge and get a warrant and go down to the phone company and get what we want? I think there is a way we can do this that is still consistent with the Constitution. (Mr. GARDNER assumed the Chair.) The other recommendation they have, other than ending the program, is that when the bulk collection program is ended, the records should be purged so there is no chance that this can be abused again in the future. One of the arguments for the NSA has been that they collect the data, it is in a database, but it is only accessed when they have what they call reasonable, articulable suspicion. One of the recommendations of the privacy board, though, was that they not be given the ability to judge whether there is reasonable, articulable suspicion; that it would actually go to an independent judge to determine that. So the recommendation of the privacy board was that these should go to the review of the FISA Court before they are able to query the database. There are many different groups who have been fighting for our privacy in this country, and it is a coalition of people both from the right and from the left. We have seen it today as different Senators have come to the floor. We have had Senators from the Republican Party as well as from the Democratic Party. We have had those from the right, from the left, conservatives, libertarians, and we have had progressives. There has been a combination of folks who also have one thing in common, and that is the belief that the Bill of Rights should be protected. Among the private groups who have done a good job with this is Electronic Frontier Foundation. They have been one of the groups who have done a good job. In one of their newsletters, they quote Ron Wyden, who says: We have not yet seen any evidence showing that the NSA's dragnet collection of America's phone records has produced any uniquely valuable intelligence. Patrick Eddington writes for CATO. CATO is another group who has been a good supporter of privacy. In an article that talks about the upcoming battle from a couple of weeks ago, he writes--this is on the USA FREEDOM Act, and this is sort of the big debate because many people on both sides of the aisle think the bulk collection of records is not constitutional. We think it exceeds the government's power and it exceeds the Constitution. But what many are proposing to replace it with is the USA FREEDOM Act. This is what Patrick Eddington writes: The USA FREEDOM Act claims to end the controversial telephone metadata program, but a close reading of the bill reveals that it actually leaves key PATRIOT Act definitions of ``person'' or ``U.S. person'' intact, so a person is defined as any individual, including officer or employee of the Federal Government, or any group, entity, association, corporation, or foreign power. So the question I have is, it sounds good that we are going to make the definition of whose records we go after when we say it is going to be a specific U.S. person. The problem is that we then define ``person'' as ``corporation.'' So we get back to the same argument: If we are going to search the database of all of a person's phone calls and we say that a person is Verizon, we are again stuck collecting everybody's records. What I don't want to have happen and what I won't be able to support is a bill that becomes bulk collection of a person's records, just under a different venue. I am not sure that one's privacy has been protected more if it were now just asking the phone companies for bulk collection where we were taking their data, sourcing it, and getting it from the companies after they gave it to the government. I am just not sure if it is that much--distinctly different. In the USA FREEDOM Act, they talk about the idea that we will get special advocates, and I am for that. I think that is a good idea. But Patrick Eddington points out a flaw. He says that the FISA Court has sole discretion to appoint or not appoint these amicus curiae or these special advocates. So it could be that a FISA Court that really has not been too inquisitive, a FISA Court that has determined that all of your records are somehow relevant, may not be the most inquisitive to appoint an advocate for you if they have been able to define ``relevance'' as meaning all of the records. Another deficiency of the USA FREEDOM Act is that it does not address bulk collection under Executive Order 12333. The bill also fails to address bulk collection under section 702 of the FISA Amendments Act. One could say: What are you complaining about? You are getting some improvement. You still have problems, but you are getting some improvement. I guess my point is that we are having this debate, and we don't have it very often. We are having the debate every 3 years, and some people have tried to make this permanent, where we would never have any debate. Even though we are only having it every 3 years, it is still uncertain whether I will be granted any amendments to this bill. So, yes, I would like to address everything while we can. I think we ought to address section 702. I think we ought to--for goodness' sake, why won't we have some hearings on Executive Order 12333? I think they may be having them in secret, but I go back to what Senator Wyden said earlier. I think the principles of the law could be discussed in public. We don't have to reveal how we do stuff. Do we think anybody in the world thinks we are not looking at their stuff? Why don't we explore the legality and the law of how we are doing it as opposed to leaving it unsaid and unknown in secret? Part of our secrecy is sort of backfiring on us also because what is happening is in keeping this secret, people believe the worst. Everybody around the world believes the worst about it. Everybody around the world believes that they are having all their stuff looked at, that their emails are being looked at. So if you are a businessperson in Europe and you are trying to negotiate a secure deal--a deal where you don't want your competitors to know what you are offering to buy a certain company--I would think you probably wouldn't use American email, and I would guess that is what is happening. American companies are starting to try to figure out a way around this, are trying to offer encryption. What does the government do? The President's administration is all over the airwaves, all over Washington, all over the place talking about how the companies are somehow evil for wanting to encrypt their data. I saw the Secretary of the Department of Homeland Security in my committee the other day, and I said: You realize it is your fault. Is it the companies' fault that they are trying to protect their information for their customers? They are trying to make a living. It is your fault for bullying them and stealing their information and stealing all of Americans' information. We are simply reacting to the bully that you are. Most of the issues Patrick Eddington points out in his piece are issues that we actually have amendments for that would make the bill stronger. So if there are arguments that maybe the USA FREEDOM Act could be made better--definitely reauthorizing it by itself is a big mistake, but if alternatives are going to be offered, maybe we could try to offer alternatives that make the USA FREEDOM Act better. The other idea Patrick Eddington puts forward is that there is no bar on the government imposing backdoors being built into electronic devices. That is what we have talked about before, that the government is mandating to different companies that they have to have access to their product. I think it is an under-discussed development that the companies are going to be more at risk for sabotage by foreign countries, foreign governments, and sabotage from hackers if they build a portal. So if the government says ``We need a portal to stick our big nose in your business and suck up all your information,'' my guess is that sophisticated hackers and sophisticated foreign governments will say that most of American software now has a flaw, and the American Government is getting into it. What do we think these people will do? They will develop programs to look for the flaws and churn through until they find our flaws. It is the opposite of what we should be doing. We should be trying to keep foreign governments, foreign snoopers, and foreign competitors out of our stuff, including the U.S. Government, but we are doing the opposite. There is a lot left to be desired with the USA FREEDOM Act. I try to be supportive of moving forward, but I can't support it unless we are able to incorporate some of the other ideas I think are necessary. The people say we are just not doing enough. This week, many have come out and said: We have to collect more data. We are only collecting a third of the data. We have to get more data. The interesting thing is that we are spending $52 billion a year on intelligence in our country--$52 billion. We are spending $10 billion in the NSA alone. It is $167 per person in the United States. I think it is hard to argue we are not doing enough already. I think the argument can be made, though, that we are doing it in such a haphazard, all-collecting, all-consuming, indiscriminate way that maybe we are not getting the best bang for our buck. There have been many groups out there. We mentioned Electronic Frontier Foundation, TechFreedom, Liberty Coalition, GenOpportunity, Competitive Enterprise Institute, FreedomWorks--a lot of different groups from right and left that are opposed to this bulk collection of data. There is an interesting article recently written by Anthony Romero with the ACLU, and the title of it is ``The Sun Must Go Down on the PATRIOT Act.'' In it he refers back to both of the review groups we talked about and the Privacy and Civil Liberties Oversight Board, and he says and reiterates a point that is incredibly important, that ``there was no evidence at all that the NSA's massive surveillance program had ever played a pivotal role in any investigation.'' I think we ought to be able to figure out something from this, and we ought to be able to learn that not only is there a constitutional question of this, there is also the question of whether practically it is doing anything to make us safer. If it is not making us safer, it is extraordinarily expensive and we are losing our freedom in the process. Why don't we shut it down? Different advocacy groups for a variety of opinions have put forward the idea that I think was represented in the NAACP v. Alabama. I believe this was back in the seventies, which set forth a First Amendment claim, and this claim is that there is a vital relationship between freedom of association in privacy in one's associations. The point is that sometimes when you are protesting either for or against something that is very unpopular, sometimes you even worry about your safety. There were people who lost their lives in the freedom movement, in the civil rights movement. There were people who lost their lives. And you can understand how in those days people might have been worried for anybody to know they belonged to the NAACP or they opposed the Jim Crow laws in the South. But it was an important case because it talks about how the fact is that information can be kept private and should be kept private for fear it will chill speech, for fear it will put a damper on who people would associate with, for fear that it would put a damper on dissent, which is a fundamental aspect of a Republic. In a letter from a couple weeks ago from some congressional leaders, they point out something that I think bears repeating. Mass surveillance, the bulk collection, harms our economy. Mass surveillance will cost the digital economy up to $180 billion in lost revenue by 2016. We are not getting any new bad guys with this, we are abrogating privacy, and we are losing money. The Internet companies in our country, the whole software world, the whole hardware, all of this, have been some of America's greatest triumphs, some of America's greatest ingenuity. Yet we are willing to squash all that in a battle that really is going to damage our privacy, isn't helping us in the war against terrorism, and is going to make it such that nobody in the world is going to want to buy American products. I think it is a disgrace and, once again, I don't think it is purposeful. Nobody wants to harm our companies, but I think it is just another unintended consequence--a bad policy not thought through. The ACLU commentary on the USA FREEDOM Act has come up with some ideas of things they think would make the bill stronger. One, they say the bill could be amended to prevent surveillance of individuals with no nexus to terrorism: The 2015 USA FREEDOM Act would authorize the collection of records and communications identified by a ``specific term''. . . . This would stop the government from conducting indiscriminate surveillance of virtually all citizens and from engaging in narrower but still-egregious forms of abuse, like the surveillance of everyone in an entire zip code or all those who use a given communications provider, like Gmail. However, the current SST definition is still not strong enough to prevent ``bulky'' collection. . . . This is the point I have been making, and this is something you need to be very careful about in Washington, because the minute you think you have won a battle, secretly you have been beaten. You just don't know it yet. We may still get a reform like this and then find out we are still going to get bulky collection; that a corporation's name can be put in the specific selector term, and--so we were worried about the government giving us all of Verizon's records. Now we are just sending a warrant to Verizon that has their name in it and we are getting all of their records. The example they put here is that you could still end up having the surveillance of everyone in the entire ZIP Code or all of those who use a given communications provider like Gmail. So Gmail is a specific term. Are we not still back where we were and have we really fixed the problem? The ACLU goes on to say that the bill should be amended to narrow the SST definition--the selector term--to prevent this kind of bulky surveillance. The bill should also make crystal clear, consistent with the Second Circuit--which has come out since this bill was written-- that section 215 cannot be used to amass Americans' records for open- ended data-mining purposes unmoored from any specific investigation. I think this is incredibly important. The USA FREEDOM Act wants to take a step forward, but we need to make sure the ruling from the Second Circuit that has already passed, that we don't do something that either moots the case or we don't do something that actually expands the power of 215 when the court has already restricted the power of 215. The ACLU's second recommendation is that we should include procedures to ensure that the government purges irrelevant information. Right now the bill would allow the collection of irrelevant information under 215 and other authorities without minimization procedures. This kind of reminds me--if you want to know how much information we are grabbing up and how worried to be about it, there was an article in the Washington Post a couple of months ago, and it said the President had been minimized 1,227 times. We are collecting the President's data, all right. You can say, well, we are being fair, we are getting everybody's. For goodness' sake, we should not be collecting the President's information. In fact, you might inadvertently have somebody reading that who really shouldn't be reading the President's information. We should not be collecting the President's information. That is ridiculous. But we are minimizing the President, which means we are finding it and sort of whitening it out and hoping nobody has read it in the process. There were earlier versions of the USA FREEDOM Act that included some of these basic protections on getting rid of or minimizing irrelevant information from bulky surveillance. This is sort of the problem. This bill started out pretty good in the House, got out of committee, got sort of eaten up on the floor, and wound up losing a lot of the better stuff that was in it. The third recommendation is what we mentioned a few minutes ago, which is to make sure there is a strong advocacy, a special advocate; that it is a strong advocate that goes before the FISA Court. As the Second Circuit Court decision observes, adversarial judicial process is vital, especially on matters as critically important as the government's authority to spy on its citizens. This is a really important point, the adversarial judicial process. There are some--Judge Napolitano has written on this--and I think he has made the point that without an adversarial process, you really can't even have a judicial process. If you don't have people on both sides arguing or advocating for a position, there really isn't a court. It really is not a judicial proceeding that we can recognize as finding justice. But the FISA Court only hears from one side, the government. But the ACLU points out that these advocates participate solely at the discretion of the court and can make arguments that do not advance privacy and civil liberties. Yet, if you are hired by the government, are you really going to be the best advocate for privacy? The fourth suggestion that the ACLU has to make the USA FREEDOM Act better is that we should limit additional authorities that have been used to collect America's records in bulk. We now know that the government has conducted bulk surveillance not only under 215 but also under a host of other statutes, including existing administrative subpoena authorities. For example, for two decades, up until 2013, the Drug Enforcement Agency operated a program that collected the international call records of Americans in bulk, reporting under existing administrative subpoena laws. So here is a real question: What other authorities are we operating under that are collecting bulk records? They are doing it under administrative subpoena laws. They are doing it for the DEA. I still think the more I learn about this, the more questions I have as to how many other authorities are still collecting things. I would still like to know, are they collecting all the credit card information in the country? Are they doing that under Executive authority? Are we really living in a country now where nobody in the government questions someone when they say that under article II authority the President can do whatever he wants and that this can't even be corrected or challenged at all by Congress? The fifth recommendation from the ACLU is to stop the government from using section 702 of FISA as a backdoor to conduct surveillance on Americans. This was one of our amendments that we also have. In fact, most of these are amendments that I would present, if we are allowed to present them, which is sort of the purpose for being here, for wearing my feet out and my voice today, is that we would like to find out, Will the leadership allow us to have amendments? We would like to know and have an agreement that we will specifically be allowed to offer these amendments we have worked on for 6 months to a year now. We have waited for 3 years for the opportunity. We would like to know, Will leadership let us have these amendments? Will leadership allow a free and open debate over how to fix this bulk collection program? The backdoor thing with 702 is a pretty important thing. It is collecting enormous amounts of data. Earlier today we talked about how this data, that 9 out of 10 pieces of data are not about the target, they are just incidental. I think there was one estimate that we have had 90,000 targets, but it means that we have really had 900,000 bits of information on other individuals collected, but it all just gets stuck in a database. So the database keeps growing and growing and sometimes it is intentionally so, that we want to investigate a guy here, but we don't want to ask for a warrant, so we investigate a guy overseas that we know already talks to the guy over here, and now we are really investigating Americans without a warrant. So they recommended we stop this backdoor access. This is something Senator Wyden and I have also been in favor of as well. Another recommendation the ACLU has is that our current laws punish individuals for providing material support to terrorists. I have no problem with that, but they have been used apparently to prosecute people seeking to provide humanitarian assistance. The USA FREEDOM Act should add an explicit intent requirement to the material support law. There is another comment from the Sunlight Foundation by Sean Vitka, and the title is the ``USA FREEDOM Act is about to pass through the House--is it a step backwards?'' Sunlight and others have had major concerns about the USA FREEDOM Act for some time. Broadly speaking, it isn't a satisfactory level of reform given what we've learned in the past two years about government surveillance and the immense secrecy that surrounds it. Until last week, it's fair to say some considered the bill a net positive, some a net negative and that no one thought it was enough for reform. As time has progressed, we've seen what began in 2013 as a decent, if tunnel-visioned, compromise chipped away at, including the transparency and accountability provisions . . . I think this is an important point, because the USA FREEDOM Act started out pretty good. It got a little bit less good over time. But think about where we are right now. It passed overwhelmingly in the House. The majority in the Senate does not want it because they think it lessens the bulk collection too much. So they are going to chip away at it again. So imagine where we are going to be in the end if that is what we are going to pass. I think it would be better to be done with bulk collection. Let's be done with bulk collection. Let's start over. But let's not replace it with something that may end up being just as bad. The sacrifices made in the bill in order to secure these modest reforms grew more dramatic. For instance, the USA FREEDOM Act was always a threat to court challenges and may have mooted the ACLU'S tremendous court win last week, if it had passed last year. This is the point I have been making. The luckiest thing we ever got is that we did not pass the USA FREEDOM Act last year because the courts are probably going to do right now a better job than legislation. If fact, we might be better off not passing the USA FREEDOM Act and seeing what the courts will do for us on this because there is a danger it moots the case. But there is a danger also that it is seen as actually giving justification for the program, which I guess is kind of mooting the case as well. The ruling in the appellate court could also--they are agreeing with what I just said--do more than USA FREEDOM aspired to do, because it interprets the word ``relevance'', saying it does not authorize bulk collection and that that word is not used in section 215. So I think that is a good point, that the court is saying that the word ``relevance'' does not authorize bulk collection. So you have got bulk collecting going on, but there is no authorization from 215 on it. Here is the question: Is USA FREEDOM going to allow bulky--perhaps bulk--collection, and do we wind up actually giving back more power to the intelligence community when we are trying to limit their power? I think we need to be very careful with what we do here. Sunlight goes on to say--Sean Vitka: It's unclear whether the primary goal of USA FREEDOM, the rewriting of Section 215 to stop bulk collection, is already accomplished and whether USA FREEDOM could open us all up to more secret interpretations and new venues of surveillance. I think that is an incredibly important question. Several groups that initially supported USA FREEDOM have backed away from it. ACLU and EFF agree that the USA FREEDOM Act as it stands now is not worthy of support. I think some of these may be neutral on it, but they have backed away from some of their support. Some of the concerns that Sean Vitka talks about here are shortcomings in the USA Freedom Act. He says that it accepts the premise that mass surveillance under these programs is necessary, despite the findings of the congressional joint inquiry and the 9/11 Commission to the contrary, and also despite that the Privacy and Civil Liberties Oversight Board said it was not necessary. Sean Vitka goes on to say that one of his other concerns is that the USA FREEDOM Act effectively continues mass surveillance under section 215 of the PATRIOT Act through the use of multiple NSA-supplied selector terms. So you could say that we are only going to do individual terms, but then you do a bunch of them. By the time we do a bunch, are we really individualizing or are we not growing it into bulk collection? They include the following among those selection terms--ones they are worried about: the Internet protocol address or cloud source accounts of entire organizations, in contravention of the Fourth Amendment's particularized probable-cause-based warrant. Additionally, Sunlight goes on to point out what I pointed out as well, that the term ``person'' is not defined as an individual natural person, and the bill does not alter the PATRIOT Act's original definition of person, which includes any individual, officer or employee of the Federal Government or any group, entity, association, corporation. You know, I really feel what we could be doing back here is--we think we won. We get the USA FREEDOM Act, and then 2 years from now, we find out they are plugging the name ``Verizon'' into their selection term and they are still collecting all the records from Verizon. So I think unless you can limit this to an individual, a natural person, I think really this is one of the biggest problems we have with the USA FREEDOM Act at this point. Sean Vitka goes on to say that there is a concern that it expands the corporate immunity. We have discussed that as well today--that by removing that companies act in good faith, we also are going to pay the companies now to do this as well. Judge Napolitano wrote about this just the other day, May 14. He writes: A decision last week about NSA spying by a panel of judges on the U.S. Court of Appeals in New York City sent shock waves through the government. The court ruled that a section of the PATRIOT Act that is due to expire at the end of this month, on which the government has relied as a basis for its bulk collection and acquisition of telephone data the past 14 years, does not authorize that acquisition. This may sound like legal mumbo-jumbo but it goes to the heart of the relationship between the people and their government and a free society. The PATRIOT Act is the centerpiece of the Federal Government's false claim that by surrounding our personal liberties to it, it can somehow keep us safe. The liberty- for-safety offer has been around for millennia and was poignant at the time of the founding of the American Republic. The Framers addressed it in the Constitution itself, where they recognized the primacy of the rights to privacy and assured against its violation by government, by intentionally forcing it to jump through some difficult hoops before it can capture our thoughts, words, or private behavior. These hoops are the requirement of a search warrant issued by a judge based on evidence called probate cause, demonstrating that it is more likely than not that the government will find what it is looking for from the person or place it is targeting. Only then may a judge issue a warrant which must specifically describe the place to be searched, or specifically identify the person or thing to be seized. Napolitano goes on: None of this is new. It has been at the core of our system of government since the 1790s. It is embodied in the Fourth Amendment which is the heart of the Bill of Rights. It is quintessentially American. The PATRIOT Act has purported to do away with the search warrant requirement, by employing language so intentionally vague that the government can interpret it as it wishes. Add to this the secret venue for this interpretation, the FISA court, to which the PATRIOT Act directs that NSA applications for authority to spy on Americans are to be made, and you have the totalitarian stew that we have been force fed since 2001. Because the FISA court meets in secret, Americans did not know that the feds were spying on us all of the time and relying on their own unnatural reading of the words in the PATRIOT Act to justify it until Edward Snowden spilled the beans on his former employer nearly 2 years ago. Here is another reason I think to question whether USA FREEDOM may be the best bill for us. There was an article in the Daily Beast by Shane Harris the other day. The title of it is `` `Big Win' for Big Brother: NSA Celebrates the Bill That's Designed to Cuff Them.'' It was supposed to be the declawing of America's biggest spy service, but what no one wants to say out loud is that this is a big win for the NSA, one former top spook says. Civil libertarians and privacy advocates were applauding yesterday after the House of Representatives overwhelmingly passed legislation to stop the NSA from collecting Americans' phone records in bulk. But they'd best not break out the bubbly. The real big winner here is the NSA. Over at its headquarters in Fort Meade . . . intelligence officials are high-fiving, because they know things could have turned out much worse. ``What no one wants to say out loud is that this is a big win for the NSA, and a huge nothing burger for the privacy community,'' said a former senior intelligence official, one of half a dozen who spoke to The Daily Beast about the phone records program and efforts to change it. Here's the dirty little secret that many spooks are loath to utter publicly, but have been admitting in private for the past two years: The program-- The bulk collection program-- which was exposed in documents leaked by Edward Snowden in 2013, is more trouble than it's worth. ``It's very expensive and very cumbersome,'' the former official said. It requires the agency to maintain huge databases of all Americans' landline phone calls. But it doesn't contribute many leads on terrorists. It has helped prevent few--if any--attacks. And it's nowhere near the biggest contributor of information about terrorism that ends up on the President's desk or other senior decision makers. If, after the most significant public debate about balancing surveillance and government in a generation, this is the program that NSA has to give up, they're getting off easy. The bill that the House passed yesterday, called the USA FREEDOM Act, doesn't actually suspend the phone record program. Rather, it requires that phone companies, not the NSA, hold on to the records. That bears repeating. At least from the author's perspective of this article, the USA FREEDOM Act does not actually suspend the phone records program. Rather, it requires the phone companies, not the NSA, to hold onto the records. ``Good! Let them take them. I'm tired of holding onto this,'' a current senior U.S. official told The Daily Beast. It requires teams of lawyers and auditors to ensure that the NSA is complying with Section 215 of the PATRIOT Act, which authorizes the program, as well as the internal regulations on how records can and cannot be used. The phone records program has become a political lightning rod, the most controversial of all of the classified operations that Snowden exposed. If NSA can still get access to the records but not have to hold on to them itself, all the better, the senior official said. ``It's a big win for common sense and for the country,'' Joel Brenner, the NSA's former inspector general, told The Daily Beast. ``NSA can get to do what it needs to do with a higher level of scrutiny and a little more trouble, but it can still do what it needs to do. At the same time, the government is not going to hold the bulk metadata of the American people.'' ``The NSA is coming out of this unscathed,'' said the former official. If the USA FREEDOM Act passes the Senate-- which is not a foregone conclusion--it will be signed by President Obama and create a more efficient and comprehensive tool for the NSA. That's because under the current regime, only the logs of landline calls are kept. But in the future, the NSA will be able to get the cell phone records from the companies, too. That bears repeating. This week, everybody was talking about and saying: We are not getting enough. The people who want more surveillance are saying: We are not getting enough. We are only getting the landlines. We are only getting one-third of all of the records. Here is the allegation: Under the USA FREEDOM Act, they are going to get many more records. They are going to have access to all cell phone records. The question is, Are we going to really have less bulk collection or maybe the same? There is another irony--this is still according to Shane Harris at the Daily Beast: And there's another irony. Before the Snowden leaks, the NSA was already looking for alternatives to storing huge amounts of phone records in the agency's computers. And one of the ideas officials considered was asking Congress to require phone companies to hang onto that information for several years. The idea died, though, because NSA leaders thought that Congress would never agree, [current and former officials have said]. It is kind of ironic that the NSA already thought of this idea, didn't think we would be silly enough to do it, and now it is being promoted as the reform, that the reform is going to be what the NSA actually wanted in the first place. Suddenly, the NSA found itself under orders from the White House-- this is after the revelations from Snowden--to come up with some alternative to the phone records program that preserved it, but also put more checks on how the records are used. Continuing: That's when General Keith Alexander, then the agency's director, dusted the old idea off the shelf and promoted it on Capitol Hill. That is right. ``The USA Freedom Act''--the supposed reining in of the NSA--``was literally born from Alexander,'' the former official said. So the NSA effectively got what it wanted. But that doesn't mean privacy activists got nothing, or that they'd count the law's passage as a loss. There is a large coalition, 50 maybe 100 different groups, that have all been in favor of trying to end the bulk coalition. We have been working together on this. We have mentioned the Electronic Frontier Foundation, the Electronic Privacy Information Center, the ACLU, FreedomWorks, Bill of Rights Defense Committee, The Constitution Project--across the spectrum, right and left. The question is on encryption, whether the government will be able to break through the encryption that businesses are trying to devise to keep them out. There is an article in the New York Times, though this is from 1\1/2\ years ago, saying: The National Security Agency is winning its long-running secret war on encryption, using supercomputers, technical trickery, court orders and behind-the-scenes persuasion to undermine the major tools protecting the privacy of everyday communications in an Internet age. . . . The agency has circumvented or cracked much of the encryption, or digital scrambling, that guards global commerce and banking systems. Continuing: ``For the past decade, N.S.A. has led an aggressive, multipronged effort to break widely used Internet encryption technologies,'' said a 2010 memo describing a briefing about N.S.A. accomplishments for employees of its British counterpart. I think the encryption thing is a big deal and will continue to be something that is a bone of contention between the tech industry and the government. With regard to what we do in order to protect ourselves from the government, I think encryption will continue to take off.

Mr. PAUL. I want to continue to keep the floor. I yield for a question without losing the floor.

Mr. PAUL. I think what is still unclear to me is what will be taken up and what votes there will be on this. I believe that the debate is a very important one, that it is one we should engage in and have a significant time to talk about, and there should be amendments. As you know, sometimes the amendments get offered and then things sort of fall away. I want to ensure that on something this important that comes up only once every 3 years and on which the court just below the Supreme Court has said we are doing something illegal, that we don't just gloss over and say we are going to keep on doing something the courts have said is illegal. As far as the end result of where it goes, I want to end bulk collection. So I agree with all of the people on the USA FREEDOM side. I am a little concerned that we might be transferring government bulk collection to privately held bulk collection. In the selector terms they use in the USA FREEDOM Act, it says ``person.'' It says ``specific person.'' I think it defines ``person,'' though, as still including corporations. My concern is that you could write into specific person ``Verizon'' again, and we are back where we started. So if we could get to a point of, No. 1, allowing some amendments to be voted on and maybe changing it such that you can't have--see, to me, the biggest issue here is a general versus a specific warrant. I don't want warrants that you can get everybody's records all at once or even one company's. I want the warrant to say--and I am fine with getting terrorists. I want to get terrorists. If John Doe is a potential terrorist, put his name on it. You can go as deep as you want into the phone records, but do specific warrants. But I don't like it if you just say: I want everybody's records from a phone company. So I am concerned that we are trading one bulk collection for another form, and I need to be a little more assured on that. I think there might be room for it if people were open to discussion on how we could figure out a way to get something through because it is going to difficult, as you know, to get to 60. It is going to be hard either way. The other side wants the bulk collection, and if people want the bulk collection, they want more of it. And then there are at least half of us who think it is the wrong thing to do. I don't know the outcome, but I was uncertain enough that I came today to come to try to draw attention to it. And if I had a request today, it would be the leadership to let amendments to go forward, that we agree on having a pretty free amendment process. This is only every 3 years, and it is a big deal. We don't have much legislation come before us where an activity has been said to be illegal by an appellate court, we continue to do it, and then people want to advocate to continue to do something that is illegal. But I am going to try to see what I can get. I am hoping to get an answer--maybe today--from leadership on whether they will allow amendments to this. I want to be pretty certain that is going to happen because they seem to fall away sometimes. Mr. TESTER addressed the Chair.

Mr. PAUL. Mr. President, I would yield for a question but not yield the floor.

Mr. PAUL. I thank the Senator from West Virginia. I think he has made some really good points. I think a lot of us have come to the agreement that there is a problem with bulk collection. I don't think we have everybody, but I think we have a significant number. The court agrees with us. So I think we are getting closer. One of the groups that we have talked about in looking at where we are, whether this is a constitutional or legal program--is it is pretty intriguing to look at the report that comes from the Privacy and Civil Liberties Oversight Board. This is a bipartisan board. It is a board that was put in place, and I think the appointees are bipartisan appointees. When they met, they came to the conclusion, though, that the bulk collection of records is not warranted and not given sanction by the PATRIOT Act. They had four different reasons why they say that the telephone records program--the bulk collection of our records--does not comply even with the PATRIOT Act. The first reason they say is that there is no connection to any specific FBI investigation at the time of the collection. So, basically, when they collect your phone records, they are not even alleging that they are related to any investigation. But that is what the statute says. They are supposed to be relevant to an investigation, but there is no evidence and nothing is even presented that there is any investigation even going on. The investigation actually starts after they have collected all of your records. So how can section 215 say that you can collect these records because they are relevant to an investigation that has not yet even begun? They use this big data case later on when they say there is going to be an investigation. So I think their No. 1 reason is pretty strong. There can't be a connection or relevancy because there really is no investigation when they collect your records. The second reason of the privacy commission was that the records are collected in bulk, potentially encompassing all telephone calling records across the Nation. They cannot be regarded as relevant to any investigation without redefining the word ``relevant'' in a manner that is circular. Relevant sort of means that there is some sort of criteria that means that there is some pertinence, that there is something about the records or something about the investigation. For example, if there is someone in the northwest section of Washington, DC, and we saw something happen there. We are saying we want to look at the records there. Even though it might be bulk collection, it would be at least relevant to some sort of investigation. There would be some pertinent factor. But they are just collecting everybody's records. It is completely without any relevancy. And I love the way they put it--that this would not be relevant unless we redefine the word relevant in a manner that is circular, unlimited in scope, and out of step with case law from analogous legal context involving production of records. The third reason why the privacy board said that this program is not legal is that it operates by putting telephone companies under an obligation to furnish new calling records on a daily basis as they are generated, instead of turning over records they already have in their possession. This is an approach lacking foundation in the statute and one that is inconsistent with FISA as a whole. The final reason they say that this program is illegal--this is the President's own privacy commission--is that the statute permits only the FBI to obtain items for use in the investigation. It does not authorize the NSA to do anything. So section 215 of the PATRIOT Act is what they are saying they are using as justification. It allows the FBI to collect records. It doesn't allow the NSA at all. So they are using a statute that was intended for the FBI to say the NSA can do this. So I think the reasons are pretty clear--four specific reasons why the PATRIOT Act does not justify the collection of these records. The next thing the policy committee looked at was they looked at and they tried to decide whether there has been any practical effect. I know Senator Leahy was a part of this, looking at whether any of these things actually did catch terrorists. But this is what they concluded, and they actually looked at the classified data. So the Privacy and Civil Liberties Oversight Board looked at the data, looked at the classified data, and this is their conclusion: However, we conclude that the Section 215 program, the bulk collection, has shown minimal value in safeguarding the nation from terrorism. . . . we have not identified a single instance involving a threat to the United States in which the [bulk collection] program made a concrete difference in the outcome of a counterterrorism investigation. Those are pretty strong words. The Policy and Civil Liberties Oversight Board commissioned by the President, which is bipartisan, looked at the classified data and said it didn't find a single incident--not one incident--in which it made a concrete difference in the outcome of a counterterrorism investigation. Moreover, we are aware of no instance in which the program directly contributed to the discovery of a previously unknown terrorist. . . . What does this mean? We are not pushing a button and generating terrorists out of this. The terrorists are coming from real information. You have to realize that this misinformation and this wrong-headed information has been used forever--for 15 years--to justify the fact that we should give up on the Fourth Amendment and we should give up on protections. Over and over people say that if we only had the PATRIOT Act, we wouldn't have had 9/11. The two terrorists they claim we would have gotten were in San Diego. We already knew about them. An informant lived with them for a year. The FBI wasn't talking to the CIA, they weren't looking at lists, and they didn't know they would come back. The CIA didn't know. It had nothing to do with having bulk collection of our records. We knew about these people. It was crummy work. It was people not doing their job. I repeat: No one was ever fired. We gave rewards. We gave medals of honor to everybody in the intelligence community and no one was ever fired. There were some true heroes--the FBI agent in Arizona and the FBI agent in Minnesota who actually discovered potential hijackers. The 20th hijacker was captured before 9/11. The 20th hijacker was captured a month before 9/11. That is the person who should have gotten the Medal of Honor. The person who would not listen to him should have been fired. I have no understanding or awareness that anybody was ever fired over 9/11. The Policy and Civil Liberties Board goes on to say that our review suggests that section 215 of the PATRIOT Act, the bulk collection of records, offers little unique value. They explore a little bit of whether there is a privacy problem with collecting all of these records and what are the implications of collecting all of these records. The government's collection of a person's entire telephone call history has a significant and detrimental effect on an individual's privacy. Beyond such individual privacy intrusions, permitting the government to routinely collect calling records of the entire Nation fundamentally shifts the balance of power between the State and its citizens. With its power of compulsion and criminal prosecution, the government possesses unique threats to privacy when it collects data on its own citizens. Compound this with the fact that the government--you could say: Well, they are just collecting this data at a lower standard, but if you are not a terrorist you do not have to worry. But here is the problem. They are collecting this data with the lower standard, a less-than- constitutional standard, but then they are also prosecuting you for domestic crime. Section 215 of the PATRIOT Act is being used 99.5 percent of the time for domestic crime. We are putting drug dealers in jail. That is another question and another story. But then we should vote on it as a country. OK. For drug dealers, we are not going to have the Constitution anymore, we are going to have the PATRIOT Act for drug dealers. Let's be honest about it. The war on drugs has had a disparate impact, a disproportionate impact on people of color. So you have to admit to all the young Black men and all the young Brown men you put in prison that we are no longer using the Constitution to stick you in prison, we are using the PATRIOT Act to put you in prison. We need to be honest with people. If the PATRIOT Act is about terrorism, they should adopt my amendment that says you cannot be put in jail for a domestic crime under the PATRIOT Act. Why? Because the PATRIOT Act has dumbed down and loosened the standards. We do not have probable cause, we have relevance. Realize that relevance, as they say in the Commission, has become completely circular and devoid of meaning, if you are saying that all the records in the country are somehow relevant to an investigation that has not yet begun. They make a great point here about the fact that not only does this stifle or invade your privacy, it may well stifle your speech and your association. If you are going to be associating with minority causes, unpopular causes, whether you are a kid from the North who went down to be in favor of civil rights, whether you are someone who belongs to the NAACP or the ACLU, they say: Yet, even though there is no evidence of abuse-- And this is the big argument. Everyone says: Well, there has never been any abuse, so it is fine to keep doing this. Yet, while the danger of abuse may seem remote, given historical abuse of personal information by the government during the 20th century, the risk is more than theoretical. I could not agree more. Moreover, the bulk collection of telephone records can be expected to have a chilling effect on the free exercise of speech and association because individuals and groups engaged in sensitive or controversial work have less reason to trust in the confidentiality of their relationships as revealed by their calling patterns. Realize that they are taking your phone records, your calling lists, your buddy lists, your ISP address, your email. They are integrating this into some network where they can pull your name up and find out who are all your buddies, who are all your friends, who are all your Facebook friends. Realize the potential danger of having so much information, so much of a dossier on every American citizen, even if they are not using it. But when you think that, well, this is fine because we are not doing it and good people are running these agencies, realize that the head of the Agency lied to us about this program at all. He said it did not exist. So when you get to be trusting these people to protect your individual information, realize that the most--at the very top of the intelligence community, the most famous person in our country dealing with intelligence lied to a congressional committee and said that this program did not even exist. The report goes on to say that the inability to expect privacy, vis- a-vis the government and one's telephone communications, means that people engaged in wholly lawful activities, but who for reasons justifiably do not wish the government to know about their communications, must either forgo such activities, reduce their frequency or take costly measures to hide them from the government surveillance. The telephone records program thus hinders the ability of advocacy organizations to communicate confidentially with members, donors, legislators, whistleblowers, members of the public. Initially, in the 1970s when we set up the surveillance court, the security court, the FISA Court, they were done with individualized warrants. They got information through individualized warrants. Beginning in 2004, though, the role of the security court changed when the government approached the court with its first request to approve a program involving what is now referred to as bulk collection. For the first several years, we did bulk collection--they just did it. They just said it was under the inherent authorities of the President. This should scare us because there are people who believe that the inherent authorities of the President are unlimited. That would not be a President. There would be another name for that. But if there are no limits to what the President can do, there is another name for it and it is not President. The Commission goes on to say that the judge's decision--their decisionmaking would be clearly enhanced if they could hear opposing views. So the privacy commission advocates exactly what I am advocating for, that you should have a lawyer in there with you and that there should be an adversarial type of procedure. Because the thing is, is that it is like any other dispute. If you have ever heard two people arguing, figuring out the truth is listening to both sides and trying to gather what the truth is. So I think that we get to the truth a lot more if we had someone asking questions. Realize also that section 215 of the PATRIOT Act says that the information has to be relevant to an investigation. Without having someone in there to argue your case, the court appears to have not really had a great deal of discussion or, to my mind, thought about whether bulk collection is somehow relevant. You might argue that if there were opposing sides, as in a traditional court, that maybe someone would stand up and say to the judge: How can this be relevant? What investigation is it relevant to? See, I think the FISA Court became such a rubberstamp that you were not even having these questions asked because how could you ask that question. If you are an advocate for someone who does not want to give up their information, how could you ask the question whether it is relevant to an investigation, and then the government would say: Well, we are going to do it. It will be relevant when we do an investigation. No court, you would think, would understand or accept that, if it were an adversarial procedure where you have a lawyer on both sides. I don't think you can truly have justice--I think you can have a court that meets in secret. I think courts can protect individual names and I want them to. I thought Senator Wyden made a great point when he was out here. Intelligence activities, at their core, we have to protect the names of operatives. You do not want the code out there, like if we have a great code and we are stealing information from our enemies and we are eavesdropping on our enemies, we do not want the code out there that shows how smart we are and how our technology works. But if we are going to do something like collect the records of all Americans, that is a constitutional question. You can have opinions on both sides of it. I do not think there is much of a valid constitutional reason for believing in this. But you can have an opinion. In a democratic Republic, we could argue these points back and forth. But you really would have to have the ability to have a discussion over those things. Because I think without that, I do not think we can actually get to justice. Mr. COONS addressed the Chair.

Mr. PAUL. There is a lot that I like in the bill. It is just a matter of whether or not I can be convinced that it doesn't allow bulk collection under another name. I am still worried about that. But I am open to it. Some of these things--this is a very important bill. I mean, we could have a week of discussion on this bill, and amendments and a process. The only reason we are getting a little bit of this is because I am kind of forcing the issue, but I would like to see the amendments voted on. All the other stuff we are doing around here is important but has no deadline. We could have done it next week or 2 weeks from now--all the stuff we are doing right now. But anyway, that is what I am going to be asking for--the ability to present five or six amendments, vote on them, and then we will see. And I am more than willing to talk with the authors of the USA FREEDOM Act to see if there is a way, but it is going to have to involve some give and take to figure it out.

Mr. PAUL. Well, I want to thank the Senator from Oregon for the great questions and also for being supportive and really being the lead figure from the Intelligence Committee trying to make this better. I think so often our Intelligence Committees don't have enough people who are really concerned with the Bill of Rights as well as national defense, so we get a one-sided view of things. I think over the years you have been able to continue this battle in a healthy way, understanding both sides of it, both with national security but also understanding that who we are as a people is important and that we not give that up--that we not give up our most basic of freedoms in doing this. I think that power tends to be something people don't give up on easily. So when you have power that you give to people, you have to have oversight. It is incredibly important that we do have oversight on what we are giving up, but it is also important that we see what has gone wrong. The FISA Court model hasn't worked to oversee and regulate the NSA, because when finally a real court looked at this, when finally the appellate court looked at this, what we find is that the appellate court was aghast that basically they were maintaining that this was relevant to an investigation. Apparently, the way the process worked was the NSA said it was relevant, but there was no debate or dispute. It was just accepted at face value. I thought the privacy commission put it pretty well when they said: Well, how can it be relevant to an investigation that hasn't yet occurred? We are collecting all the bulk data and we are going to query it when we have an investigation. You can't argue that it is relevant to an investigation when there is no such investigation occurring while they are collecting the data. The privacy commission said that basically we are turning words on its head if we are saying something like this is relevant. So I think the American people are ready for it to end. The American people think the bulk collection of our records with a generalized warrant is a mistake and ought to end. I think we are working very hard, and at this point our hope is that between your actions and my actions, that hopefully leaders of your party and my party will agree to allow amendments to the PATRIOT Act. The goal of being here today has been to say not only to the American people but to say to the leadership on both sides and to all the Members that we want an open amendment process, that the discussion of the Fourth Amendment is an important discussion and that we shouldn't run roughshod over this by saying there is a limit and a deadline and we don't have time for debate and we are going to put it off yet again. I thank the Senator from Oregon for helping to make it happen, but my hope is that we can get an answer from the leadership of both parties that they are going to allow the amendments that your office and my office have been working on for 6 or 7 months now.

Mr. PAUL. I am not sure I understand the question, but I do believe as to the court case right now, the way it stands--if the USA FREEDOM Act had passed last year, I think there was a chance that it might have made the court case moot because it would have said that Congress has already acted and Congress now has given an authority for a variation of this and Congress already fixed the problem. So there is a part of me that would like to see the appellate court case go up to the Supreme Court. It has been remanded to a lower court so I don't know if it is ever getting there. But we ultimately have some questions in our country that won't be decided until we have a Supreme Court case. One of those questions is, Do papers have to be physical and in your house? What if they are digital and lodged somewhere else? Do you have any right of privacy, any Fourth Amendment protection at all for records that are held somewhere else? The current legal opinion doesn't really give any protection to third-party records. I think that needs to be fixed, because technology has made it such that our records are no longer going to be real records that you can hold in your hand. I think almost all of our records will be virtual and held in space somewhere, and I think you still have to have a personal privacy protection in those.

Mr. PAUL. Say that again, please.

Mr. PAUL. I think that also and within the context of--we have six or seven amendments that we would like to offer. I can't guarantee that we could win any of them, but there is a chance maybe we could win another reform. So for example, one of the reforms that some people think may be as important as all the bulk collection is the ability of the government to tell an Internet provider that they have to create a backdoor to their product for the government to go through--and some of the backdoor stuff through 702. We think there are some other things that may well be as big as this. I also think there is the ability of the government to not only use traditional warrants. They have some they are using under Executive order, as well, and we still have a host of other types of warrants and subpoenas being used. But I would never be for this in a heartbeat if I thought it was going to put the country in danger. I think we will be safer because of it and so will our liberty.

Mr. PAUL. Yes, I think that is a big concern. There are a couple of things that I think are alarming. Even two domestic emails could be routed through a server in another country, and they could use that to actually get access to two Americans who are communicating from New Jersey to South Carolina. But also I think as Senator Wyden has pointed out, it often or sometimes sounds like we are targeting a foreigner simply to get access to an American. Does the Senator have a question in that vein?

Mr. PAUL. I guess that is also where I probably differ. I think we are just as safe or safer with nothing, because the Constitution allows the searching of records. And I am all for it, but I would do it through warrants. The point is that in metadata, one can do a hop or two with these less-than-constitutional warrants or whatever. But with a real warrant, we can go 100 hops into the data. I really would chase the rabbit down the hole. I would look very hard with suspicion, and I think warrants are generally easy to get. This is the point I don't get about why we have to have warrants with a lower constitutional standard, because I think the FISA warrants are almost never turned down, but neither are criminal warrants. If you are a policeman standing in front of a house, you almost never get a no. But if you are a policeman saying, I want to search all my neighbors' houses, then the judge is going to say no, and that is a good thing. So I think traditional warrants--I think people have somehow just convinced themselves that we can't catch terrorists with traditional warrants, but I think you can go through a lot of data with traditional warrants, too.

Mr. PAUL. In a different way, we are talking about whether in the intelligence selector numbers a person is a corporation and whether can have a single warrant. I think if you want phone records from Verizon, it should say ``Verizon'' and we want the records of John Doe. It shouldn't just say that we want all the records from Verizon. That is a general warrant. I am still fearful that the USA FREEDOM Act might not limit that.

Mr. PAUL. I guess the question I have is that we have some of those restrictions now, but they seem to think that those restrictions don't apply--the people interpreting what we have now are interpreting 215 to mean we can collect all of the American records in bulk. If there were a circumstance where I was necessary to pass USA FREEDOM and if it were that close, if people were willing to look at the bill and say we would make a person, an individual-- see, the big thing for me is that the warrant should be individualized. And I am worried that if we use the word ``person'' and if it can be replaced with the word ``Verizon'' and we still collect all the records, I would feel disappointed if we thought we got rid of bulk collection and a year or 2 from now, when they finally admit it, they admit: Oh, we are still doing the very same thing. We are doing Verizon. We are getting all of Verizon's records. We are just making them process it, and we are paying them for it. That is what I fear. I want to make sure that doesn't happen.

Mr. PAUL. I want to like it because it ends bulk collection, and I am all for ending bulk collection. So we all agree--the people for it agree with the problem; it is a question of the solution. It says there have to be specific selector terms on U.S. persons. Part of my problem is that ``persons'' is still defined as corporations. My concern is that you could put the word ``Verizon'' in there, and the government wouldn't be collecting the records, but you still could get all records from Verizon. Does the Senator see what I mean? That is one of my concerns with the way it has been written. My other general concern is that we would still be having bulk collection. It wouldn't be bulk collection by the government, but it would still be bulk collection but through the phone companies. I don't like the liability protection because I think it makes it more likely than not that the privacy agreement won't be as respected if they cannot be sued for violating the privacy agreement. Those are a couple of concerns. I don't know if they are insurmountable, but those are a couple of concerns.

Mr. PAUL. Let me make sure I have the question correct. The Senator's question is on my concerns on the USA FREEDOM Act?

Mr. PAUL. I will, without yielding the floor.

Mr. PAUL. I wish to thank the Senator from Montana for that excellent synopsis of the issues as well as for the great question. I think the reports by the review committee and the privacy committee, both commissioned by the President, both nonpartisan, are incredibly powerful because not only did they look at the constitutional issue of whether this is a bulk or a general warrant versus an individual warrant, they also saw practically that it wasn't working, it wasn't adding anything to our intelligence. So I think we have sort of a dual reason now to say this is a big problem. One, there are constitutional questions, which I think are very clear, but then the second practical question is that when we examine the evidence--and the privacy commission actually looked at classified evidence; they looked to see whether it was adding anything to this--I am thoroughly convinced that we can catch terrorists with traditional constitutional warrants. When I have talked to former high-ranking heads of our security agencies, they freely admit they get more information with a warrant. It is a little more work. It has to be more specific. But I am also a believer in that because we have generalized what we are looking for and it is indiscriminate, that maybe we are missing people because we are overwhelmed with data. We are overwhelmed with things at the airports. I would much prefer that we have less indiscriminate searches at the airports and be more specific in looking at the manifests of who is flying and trying to find out who are the risks. So I do think that, without question, this is not a constitutional program. It is not even legal under the PATRIOT Act. The courts have said it isn't, and we should do everything we can to stop it. I appreciate the support of the Senator from Montana. One of the things about this issue is that it really is a bipartisan issue. It is an issue where there are people who feel strongly on both sides of the aisle. The Senator from Oregon was here earlier and the Senator from New Mexico, and I now see the Senator from West Virginia, who is also a loud and consistent voice on this. Does the Senator from West Virginia have a question?

Mr. PAUL. Mr. President, I will yield to the Senator from Montana.

Mr. PAUL. Mr. President, I thank the Senator from New Mexico for coming down and for being a great supporter of the Fourth Amendment. One of the things I think is interesting is that in our current culture we seem to devalue the Fourth Amendment. You go to--at least on our side--all kinds of groupings and gatherings, and there is a lot of talk of the Second Amendment, talk of the First Amendment, but there hasn't been so much of the Fourth Amendment until we got to this point with the collection of data seeming to be running amok. One of our Founding Fathers was George Mason. He was considered to be an anti-Federalist. He was a guy who really stood on principle, but also he was a guy who had the audacity to actually not sign the Constitution, even though he was asked and he was there and could have. On September 17, 1787, he refused to sign the Constitution and returned to his native State as an outspoken opponent of the ratification contest. His objection to the proposed Constitution was that it lacked a declaration of rights. Mason felt that a declaration of rights--or what we call a bill of rights--was a necessity in order to curb Federal overreach. Mason, though, was also famous for being an author of the Virginia Declaration of Rights, which was written a decade or so before our Constitution and upon which many things were based. He wrote in the first paragraph of the U.S. Declaration of Independence something similar to what we hear in the Declaration of Independence: That all men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot by any compact deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety. In the Declaration of Rights, which comes from 1776, for Virginia, he also was instrumental in including article IX. Article IX is basically the precursor to the Fourth Amendment. In it, he wrote: That general warrants, whereby any officer or messenger may be commanded to search suspected places without evidence of a fact committed, or to seize any person or persons not named, or whose offence is not particularly described and supported by evidence, are grievous and oppressive, and ought not to be granted. So from the very beginning, the Fourth Amendment was a big deal. It was a big enough deal that the fact that it wasn't included caused George Mason to say he couldn't sign the Constitution. It was a big enough deal that this debate went on for a while, and finally the resolution of getting the Constitution included that there would ultimately be a Bill of Rights. Thomas Jefferson wrote about the Bill of Rights. He said: A bill of rights is what the people are entitled to against every government on earth, general or particular, and what no just government should refuse, or rest on inferences. I like the way he put it: A Bill of Rights is what the people are entitled to against every government. It is a protection. Jefferson also described the Constitution as the chains of the Constitution. The chains were to bind government and to prevent government from abusing its authority. When we have adhered to this, when we paid strict attention to it, we have maximized our freedom. When we have let our guard down, when we have allowed our guard to stray away, when we have allowed the government to usurp authority to gain and grab and take more power, it has been at the expense of freedom. I think we can be safe and have our freedom as well. I think we can obey the Constitution and catch terrorists at the same time. I think, in fact, frankly--strictly from a practical point of view--I think we gain more information by using the Constitution. By having less indiscriminate collection of data and by having more collection of discriminating data--data that is based on suspicion, data that is based on tips, data that is based on human intelligence, data that we can focus all of our human energy on--I think we actually will catch more terrorists. I think there has been instance after instance after instance where we did have information on terrorists and we failed to act, perhaps because we are spending so much time and so much energy on the indiscriminate collection of data. William Brennan is one of our famous Justices, and he said of the Framers: The Framers of the Bill of Rights did not purport to ``create'' rights. Rather, they designed the Bill of Rights to prohibit our Government from infringing rights and liberties presumed to be preexisting. We didn't create the rights. Government didn't create your rights. Your rights come naturally to you. For those of us who believe in a Creator, they come from our Creator. But they are important to protect. They should be protected against all forms of even majority. It is why some of us think it very important to say that we are a Republic, we are not a democracy; that no majority should be able to take away our rights. That is why this is important. I think these questions ultimately get to the Supreme Court. Because no matter what the majority says here, no matter what the majority of the legislature says, the Bill of Rights lists and codifies rights that cannot and should not be taken away by a majority: the rights that we have to be left alone--as Justice Brandeis said, the most cherished of rights, the right to be left alone. But this debate is a long and ongoing debate. For nearly 100 years, from the Olmstead case in 1928 to the present, we have had a discussion and a struggle and a controversy over what parts of our conversations are to be protected and what parts are not to be protected. I think a lot of our problems really originated with going the wrong way in 1928 with the Olmstead case because we went for a long period of time--we went for two generations thinking that your phone calls were not private and that your phone calls were not protected by the Fourth Amendment. Then, we finally got to the 1960s, and we reversed that and we said your conversations are to be protected. But within a decade we made the wrong decision again and said that your records are not to be protected--that your Fourth Amendment, your records once held by the phone company, aren't to be protected. I think that was a mistake. I think it is also a mistake to think we are literally talking about paper in your house because there is quickly coming a time in which technology will be such that there will be no papers. Papers will be another word for ``records,'' but your records will not be kept in your house. They already aren't. There was a discussion of this in whether we can search a person's individual phone, and the Court did rule I think in an accurate way. The Court and one of the Justices said that, basically, the information found on your phone is more personal and more extensive than probably any papers that were ever in any home in a time before electronics. So we are going to have to catch up to electronics, we are going to have to catch up to the digital age, and we are going to have to decide does the individual maintain a privacy interest and/or a property interest. I, frankly, think that when the phone company holds my records, that they are partly mine; that there is a property interest and a privacy interest I haven't relinquished. Unless I have given explicit permission, I don't think I have given up my privacy. In fact, many times it is the opposite. Many times what we have actually said is, when I agree to do banking with you or I agree to have you hold my telephone calls or I agree to do Internet searches with you, I have an explicit agreement often. The agreement is so explicit to defend my privacy that when they don't, they are actually fearful of being sued. And so all of this craziness, all of this overreach, all of this loss of our privacy comes with a little additional caveat that is written into all the laws and everybody is clamoring for and it is what they want now--liability protection. They want to be able to violate their privacy agreement. So we give them liability protection. They don't want to be sued, but they realize they are violating and could be accused of violating our privacy agreement. So as much as I hate and despise frivolous lawsuits, the threat of suing somebody causes them to obey their contract. If they don't have the threat--if you say: Well, we are going to have contracts, but we are not going to enforce them with the threat of a lawsuit, then contracts become meaningless. So it is really important that as we move forward, we try to say to people the privacy agreement you signed is a real document, it is a real contract, and it should be protected. When referring to the Bill of Rights, Gen. Smedley Butler, who was a two-time Medal of Honor winner and a Brevet Medal of Honor winner, said: There are only two things we should fight for. One is the defense of our homes and the other is the Bill of Rights. When I have talked to the young men and women who have fought bravely for our country--young men and women who have lost limbs, families of those who have lost lives--that is what I hear from every one of them. I hear from them that they were fighting to defend the Bill of Rights. They were fighting to defend our Constitution. What saddens me is that while they were fighting for our Constitution, while they were fighting for our Bill of Rights, their legislators weren't fighting for the Bill of Rights. Their legislators were turning the other way. Their legislators were so fearful of attack that they gave up on the Bill of Rights and said: Here is my liberty, just give me security. This is a longstanding debate. Franklin had it right--those who are willing to give up their liberty may end up with neither. Now, some would ask: Why am I here today? What do I propose to get out of this? Is there an end point when I will go home and be quiet and quit talking about the Bill of Rights? I think there could be. I think if the leadership of both parties in the Senate would agree to have a debate on the PATRIOT Act, if they would agree to have amendments and have votes--and I will give some examples of some things that we think--most of these will ultimately be introduced in all likelihood by Senator Wyden and I. I will start with the first one. This is based upon an amendment that he and I have worked on together. This amendment would prohibit mandates on companies that alter their products to enable government surveillance. So this amendment prohibits any mandates from government agencies requiring private companies to alter their security features--their source code-- to allow the government to get into their stuff and into your lives. This amendment would apply to computer services, hardware, software, and electronic devices made available to the general public. Currently, the government is requiring and sometimes telling companies they can't even tell you this. They are requiring access to certain products. There have been stories of them inserting malware on Facebook, giving you access to Facebook, and then getting into your Facebook account through the Facebook code source. I know Facebook has objected to this and fought them on this, but our amendment would say that the government just can't do this. The government cannot force different social networking sites and different Internet software cannot force them to give the government access indiscriminately. The question would be: Can the government require things specifically? Absolutely, yes. Present evidence to get a warrant, and realize that when they want to make you so afraid that you give up all your records, realize that warrants aren't hard to get. The FISA warrants are almost without question agreed to, maybe to a fault. Ninety-nine percent-plus of all the warrants ever requested are granted. I think it is not too much of a step to say we should ask and request warrants. The second amendment we would consider putting forward, if we were allowed to and allowed to have votes on, would replace the PATRIOT Act extension with comprehensive surveillance reform. We would replace the extension of expiring authorities with substantial reforms, as originally proposed by Senators Wyden and Paul and others in the Intelligence Oversight and Surveillance Act of 2013. This amendment would end bulk collection and replace it with nothing. We would close the section 702 backdoor search loophole, which allows the government to say they are searching foreigners' records but in reality gather up 90 percent of the records being American records and called incidental. We would close this backdoor loophole where actually American records are being collected, not foreign records. We would create a constitutional advocate to argue before the FISA Court, before the intelligence court. The reason I think this is necessary is that the court has somewhat become a rubberstamp for the government, and we aren't allowing any kind of opposing arguments and we really aren't having any argument. For example, we have loosened the standard from the constitutional standard, which is probable cause, and we have said it is relevant. So we get to relevance. But when you come before the court, I don't think anybody is debating or being asked to prove whether it is relevant. Certainly they must not because they are somehow approving the collection of everybody's records in the United States--which I don't know of anybody who believes the word ``relevant'' can include everybody. So if we had an advocate or we had someone to say this is the other side--I think it is really important. I am not a lawyer, but I understand they argue with each other all the time and you are supposed to figure out the truth. You argue and advocate for your side, and then somehow you apply the truth or people arbitrate what they think the truth is from this discussion. If only the government argues, you can't get even any sense or form of what truth is. So what we would argue in our second amendment is that you actually have an advocate that argues on that side. I would go further, though, and say that not only do you have an advocate, you should have an avenue for appeal. I am with Senator Wyden. I want to protect all the people doing this. I don't want any names revealed. I don't want any agents revealed. I don't want to endanger the people who are risking their lives for our country to gain intelligence. But I do think the law in general can be debated. Senator Wyden talked about how the law doesn't need to be secret; the operations need to be secret. So we can protect all of that. But I think the law should be debated. For example, the question now whether you have any privacy interest in your third-party-held records--whether the Fourth Amendment protects these at all, that is our constitutional question. That should not be decided in secret, and you really can't have justice decided in secret. The other part of our amendment would give Americans spied on by the government standing to sue in court and end the practice of reverse targeting, under which the government targets the communication of an American without a warrant by targeting the non-U.S. person they speak to. By some reports, it is even worse than that. I mentioned earlier that an enormous amount of what the PATRIOT Act does--which is supposed to go after foreigners--is actually being used domestically for drug crimes. There have been reports that the information is being gathered through an intelligence warrant, and then they go back with the traditional warrant after they have gotten information through a lower standard--through a nontraditional, nonconstitutional investigation. Then they go back, and they get the warrant after using this information or they recreate the scenario in order to get the information they need. Then they do not tell the judges they got the information through the intelligence angle. Another amendment that we would like to ask the leadership of both sides if they would let us introduce it and if we were allowed to debate this and have an open amendment process would be that the warrantless crime could not be used against Americans in nonterror criminal cases. This was originally the way it was. This is why you have to worry about the slippery slope. Back in the 1970s, they said: OK, we are going to have a different standard to get foreign tariffs. Even I, who want to keep good standards, can accept a little bit of that--a slightly lower standard for people who do not live here and are not American citizens and are not part of our country. It has its dangers, but even I might be able to accept that. But what I cannot accept is that you lower the constitutional standard. You are going to use a terrorist warrant that has a lower procedural hurdle, and then you are going to use it for domestic crime. That is exactly what is going on now. We should be appalled that they destroyed the Fourth Amendment for certain crimes and we did not do anything about it. Section 213 of the PATRIOT Act is called sneak-and-peek. The government can go into your house and never tell you they were there. They can look through all of your records. They can steal stuff. They can replace it. They can do all kinds of things and place listening devices--all without ever telling you. This is in contradiction to what most people have accepted the Fourth Amendment to be. But if you look at who is being convicted with section 213, 99.5 percent of the people are for drugs, for domestic crime. What we have done is that we have taken a domestic crime and we say the Constitution no longer applies. We basically got rid of the Fourth Amendment for these crimes. For about 11,000 people a year, the Constitution no longer applies to them. We are using a lower standard. If you want to make this even worse, think about who is being convicted of drug crimes in our country. Three out of four people being convicted of drug crimes in our country are Black or Brown. But if you ask who are the kids who are using drugs, equal numbers of White and Black kids are using drugs. But three out of four people in jail are Black or Brown. Then you find out that not only have we messed up the war on drugs such that it has a racial element to it, but we are now using a lower standard that is not the Constitution, and the end result is a racial outcome. This is an enormous problem. Related to so much of what is going on in our country, so much of the anger you are seeing in our cities comes from this injustice. You now have people going to jail. You have people going to jail for 15, 20, 30 years. There is a woman by the name of Mary Martinson from Mason County, IA. Her mother just died recently. They let her out of prison for a couple of hours. Her dad is getting older, and she wishes she had been there to help her parents. She did mess up. She was a drug addict. Her boyfriend was a drug addict. They had guns in the home. They were selling the drugs. He was a meth addict. She was probably going to die if she stayed on the drugs, so it was good that she got off the drugs. She got caught. She got 15 years in prison. You can kill somebody in Kentucky and be out on parole in 12 years. Yet we put this woman in jail for an addiction. She had never been convicted of any other crime. No judge in their right mind would have ever given her 15 years--nobody would have. The judges basically are telling the defendants and telling the press: I would never do this. This is the wrong thing to do, but I am forced to do this. Compound this with the fact that the war on drugs has had a racial outcome. You put the two together and you say: Well, we are no longer obeying the Constitution, and there is a racial outcome. Where is the hue and cry? Where is the President on this issue? I have talked to the President about criminal justice. I think he sincerely wants to help. But here is the thing. The President could today stop this program. He could stop collecting stuff through the sneak-and-peek. He can say we are no longer going to do the bulk collection. Most of these things originated out of Executive order. He could stop these any time he wanted to. We would stop it. We would say no more spying against Americans and no more use of this information for nonterror criminal cases. We have another amendment that goes to the heart of what I think should be decided by the Supreme Court. We call this the amendment that would protect the privacy of Americans' records held by third parties. I think that your records do retain a privacy interest. This amendment--should the leadership agree to allow us to have amendments-- would establish a clear principle consistent with the Fourth Amendment. As it relates to government collection, an individual's records, if given to a third party for a specific business purpose, are as equally secure in their person as those that remain in their possession, unless the third party informs the individual that it intends to share the information. This amendment affirms that the government cannot circumvent warrant requirements by taking Americans' records from third parties, and it protects the constitutional rights during engagement and regular communication and commerce. I think we had a vote on this a while back. I do not think we were that successful. I think we got four people to vote--to say that your records should be protected by the Fourth Amendment. Most people do not realize this. Most people have no idea that the government's position, and, currently, maybe the Supreme Court's position, is that you do not have any right--Fourth Amendment right--in your records unless you have them in your house. I think this is something about which the more people understand and the more people are drawn to this issue, maybe people will demand that we have some justice here. We live in an era where ultimately no one is going to have paper records in their house. All of your records are going to be electronic. Because they are held and they are managed somehow by a third party, does that really mean we have given up our rights? The thing is that the government might say if your cell phone is in your house, then they do. But the cell phone is connected to someplace outside your house. Your email is being served on some server somewhere. I see no way that it could be construed that you have given up your right to privacy because someone else is holding the records for you because that is the way in the digital age we have come to hold records. We talked a little bit earlier about trust. I think trust is incredibly important. I do not discount that the vast majority of people who work in our intelligence community are honest, trustworthy, and patriotic. I think we all want the same thing. We want to protect our country. We want to protect our loved ones. We want to honor the memory of those who died on 9/11 by capturing and stopping the people who would attack us. But the question is this: Can you catch more or less, or are we more or less effective, in catching terrorists if we use the Constitution, if we use traditional warrants? I think, without question, if you talk to people, they will tell you that they get a great deal more information and more specific information by using warrants. Let's say tomorrow we elected a President who eliminated the bulk collection of data. Let's just say it happened. What do you think would happen? People say: Oh, the sky would fall. We would be overrun with jihadists. Maybe we could rule on the Constitution. Maybe we could get warrants. The information is out there. There are warrants. If you make the warrants specific, there is no limit to what you cannot get through a warrant. The warrants are given the vast majority of the time. People complain and say it would take too long; it would be inconvenient. Make it better then. Put your judges on 24 hours a day. Appoint 24 more judges. Put them on call all the time, and let's do this. There is no reason why you cannot have security and liberty at the same time. Another amendment we have--should the leadership agree to allow us to have amendments and to have votes and to have a debate on this--is an amendment that would require the court to approve national security letters. In a 3-year period between 2003 and 2006, 140,000 national security letters were given out. National security letters are warrants that are below the constitutional bar. They do not meet the constitutional bar because they are not being signed by a judge. They are being signed by the police. You got rid of one of the great protections we had, which was the check and balance that the police would always go to the judiciary. It was a different branch. The judge is sitting at home, hopefully reading it in a reasoned fashion. The judge is not in hot pursuit. The judge is not letting their emotions--the judge was not just punched by one of the convicts. The judge is sitting at home in a reasoned fashion trying to make a reasonable decision. But still, the vast majority of the time warrants are given. If there is a policeman outside the house of an alleged rapist, and they want to go in, they call on a cell phone. The judge almost always says yes. It is the same for murder. Does anybody imagine that there would be a judge in our country and that you call and say: John Doe--we have evidence that he traveled to Yemen last year. We have evidence that he talked to Joe Smith, and we have evidence that he is a terrorist, and we want a warrant to tap his phone. Look, I am the biggest privacy advocate in the world. I will sign the warrant immediately. I do not know of anybody that will not sign warrants to allow searches to occur. But you have the check and balance so it does not get out of control. What happened and what is happening now is we let down our guard. We have no checks and balances. So what does the government do when you are not watching? If you look away, the government will abuse their power. Lord Acton said: ``Power corrupts, and absolute power corrupts absolutely.'' The corollary to that would be: When you are not watching, power grows exponentially. They will do whatever they can get away with. They will do it in the name of patriotism. Actually, I do not even question their motives. They believe themselves to be patriotic, but they think we have to do anything it takes--no matter whether it contravenes the Constitution or contravenes the Bill of Rights. The people who do this--their motives are good, but they are confused in a sense, and they do not fully comprehend what we are giving up in the process. This amendment would require judges to sign national security letters. It would make them more like warrants. In practice, national security letters have become warrants written by law enforcement without prior court review and approval, granting them almost unfettered access to individual email and phone communication data, as well as consumer information such as bank and credit records. Those subjected to the national security letters must also obey a gag order. Not only does the Government come to you with a less than constitutional permit or a less than constitutional warrant, but they then tell you that you cannot talk about it. You may go to jail for 5 years if you tell somebody you had a warrant served on you. This amendment would require that a government obtain approvals from a court prior to issuing an NSL to a private entity, thus forcing them to demonstrate a clear need for information as part of an investigation. Amendment 6 would create a new channel for legal appeals for those subjected to government surveillance orders. This amendment would empower individuals or companies, ordered by the government to hand over information about users or customers, to make constitutional challenges that would be in order in the U.S. court of appeals. My understanding right now is that it is very difficult to appeal a FISA order. They are secret. You are not allowed to be in the court, so you are not allowed to participate in the process. I think, also, you can get outside of FISA by appealing, but I think you have to ask for something that is called a writ of certiorari. It is a special condition, and it is not so automatic. My understanding is that the court will grant these things, but they do not occur very often. They are an extraordinary thing. We would like to make it a little bit more of a facility of getting to a normal appeal--the way a normal appeal would occur. We have been pushing to allow that there would be more of an automatic sort of appeal here. One of the other amendments would say there is no liability immunity for companies that break their agreements with users. Like I said, while I am not in favor of lawsuits and I do not like the idea of frivolous lawsuits, I think if you do not protect the contract and if you have a privacy agreement that says they are not going to share your information with anybody, the only way they will protect it is if there is the threat that they could be sued for not protecting it. I think the contracts become not worth the paper or the click ``I agree to this'' and become completely worthless if the companies are told they can go around it. The companies have all specifically requested this because I think they fear that every day the government is requesting them to breach the privacy contract. So in order to enable the privacy contract, I think we have to get to a point where people can sue if their privacy is violated. I think there can be a mixture of opinions on what Snowden did. I think we have to have secrecy and there has to be laws against revealing secrets, so I can't say we should have everybody revealing secrets. At the same time, I think the law says that those who are reporting to Congress should tell the truth. So we have the intelligence director lying to us and saying the program doesn't exist, and then we have someone committing civil disobedience. When you commit civil disobedience, it isn't that we change the law and say it is OK. What we do is say: You broke the law, and maybe you did it for a higher purpose, but it doesn't mean we will get rid of all punishment for things like this. I think there is one way we can modify it. Snowden was a contractor, and we don't have very good rules for whistleblowers who are contractors. I would extend the whistleblower statute to people who want to come in and want to tell an authority, an investigator general or somebody, if they want to reveal that they think something is being done illegally. For example, if Snowden knew that Clapper was lying, a felony has been committed. I would think that somebody who has evidence of a felony and tells the investigator general, ``Look, I have seen this, and I have seen that they are collecting all the records of every American,'' and he says they are not, then he has committed perjury and a felony, and there ought to be some sort of whistleblower statute for that. What we do in one of our amendments is to allow whistleblowers to be contractors as well. One of the things that has been going on--even predating the PATRIOT Act and goes back to probably the 1980s and 1990s--is something called suspicious activity reports. These are now being done, I believe, by the millions. At one point I looked at it, and 5 million of these had been filed. Every year, hundreds of thousands of these are being filed, and if the banks don't file them, the banks could have their licenses taken from them or there could be $100,000 fines issued to banks. What we would like to do is to make a suspicious activity report based on suspicion, not just based on a transaction. It would make it more like a warrant where a judge would actually review it and see if there is suspicion to be reporting this activity instead of just reporting activity based on the way people do their transactions. The problem has been that we now have the IRS confiscating your money, your bank account, based on the way you do your transactions. It is not based on a conviction; it is based on, I guess, the presumption that you are guilty until you can prove yourself innocent. This is also going on with civil asset forfeiture. It is intertwined with records, and as we allow the government to collect our records in an unconstitutional manner, we have to be very careful that then those records are then being used with the presumption of guilt, not innocence. I have a great deal of questions about Executive Order 12333. John Napier Tye was with the State Department and oversaw some of the freedom of the Internet and government surveillance, and he put out an op-ed that shows a significant concern as far as whether this Executive order may be as big as bulk collection. I spoke with one of the founders of one of America's larger Internet companies recently, and he told me that not only is he worried about bulk collection, but he is worried that bulk collection might be smaller--the collection of all the phone data might be smaller than the backdoor collection through 702 and the backdoor collection through the government forcing companies to allow them into their software. Our concern is that we need to look more at the Executive order. I think it is being done in secret, but once again, an evaluation as to whether a law is constitutional or whether a law overstates its purpose should be done in the open. I see the Senator from Montana, and I will be happy to entertain a question without losing the floor.

Mr. PAUL. Mr. President, I thank the Senator from New Mexico for that great question. I think there is no way we can square this bulk collection with the Fourth Amendment. I think part of the problem, though, is that we, over a long period of time, diminished the protections of records held by third parties. And I think one of the debates we need to get hopefully to the Supreme Court sometime soon is whether you give up your privacy interest in records that are held by third parties. I think there will come a time that your papers, once held in your house--there are no papers in your house. There may not be paper. But there is still the concept of records. Records were traditionally on paper, and they were traditionally in your house. But now your most private papers are held digitally by your phone, and then by the people who are in charge of the different organizations such as phone, email, et cetera. I think there has to be Fourth Amendment protection of these. Those who look at the court cases, and go back to probably the last important case, the Maryland v. Smith case, often say there is no Fourth Amendment protection at all for these records. In fact, the government will tell you they can do whatever they want with email, with text, and with all of these things. And I am not convinced they are not using other programs, such as this Executive order program, to actually collect many other kinds of metadata other than phone calls. So I am very worried about it. I think we need help from the courts. But we need help from the legislative body to represent the will of the people. And I think the will of the people is very clear that the majority of people think we have gone too far and that we need to stop this indiscriminate vacuuming up of all Americans' phone records regardless of whether there is suspicion.

Mr. PAUL. Mr. President, the Senator from Utah makes a very good point and also asks some very good questions. In saying that we tend to work against headlines here, I often say we lurch from deadline to deadline, and the American people wonder what the heck we are doing in between the deadlines. The PATRIOT Act has been due to expire for 3 years. It is on a sunset of 3 years. We knew 3 years ago that this debate was coming. There should be plenty of time and, I think, adequate time to discuss issues that affect the Bill of Rights, that affect rights that were encoded into our Constitution from the very beginning. So I think without question the issue is of great importance and then we should debate it. But too often budgetary measures--or maybe this measure--get so crowded up against deadlines that people are like: Oh, we don't have time for amendments. The problem is, if you don't have amendments, you are not really having debate. I think the Senator characterized very well that we both agree the bulk collection of data is wrong. We think that goes against the spirit and the letter of the Constitution. However, at least half of us that we would encounter in this body don't even agree with that supposition. They believe, as many of them have pointed out, we are not collecting enough, and they don't care how we collect it, let's just collect more. So we are on different sides of opinion, two groups here. And then some of us aren't exactly on the same page as to the solution, but we agree on the problem. I think you could work through to the solution if you all agreed it is a problem and that the American people think we have gone too far. I think that is what the purpose of some of this debate today is, hopefully to draw in the American public and have them call their legislators and say: Enough is enough. You shouldn't be collecting my data unless you suspect me of a crime, unless my name is on the warrant. Unless you had a judge sign the warrant for me, you shouldn't be collecting all the data of all Americans all the time. I think part of our problem is the deadlines, and part of the reason I am here today is that I have been working on five or six amendments for a year now with Senator Wyden, so we have bipartisan support for a series of amendments. These are what we think would be best to fix this problem. Certainly, when we have had 3 years to wait for this moment, we ought to have enough time to vote on five or six amendments. So that is really, I think, what we are asking of the leadership of both sides--is permission. Because, really, in this body, everybody has to agree to let you vote on something or no votes happen. We have done a better job this year. We are voting on more amendments, but this is still one of those occasions where we are butting up against a deadline. My fear is that without extraordinary measures--which I am hopefully trying to do today--that we may not get a vote on amendments and we may not get adequate time to debate this, I think, important issue. Some of the amendments we have been interested in presenting as a way to fix this--so first you have to agree with what the problem is. We think the problem is that the government shouldn't collect all of your phone records all of the time without putting your name on a warrant, without telling a judge that they have suspicion that you have committed a crime. We think that collecting everyone's phone records all of the time without suspicion is sort of like a general warrant. It is like a writ of assistance, it is like what James Otis fought against, it is like what John Adams said was the spark that led to the American Revolution. So we think the American people also believe this, that the American people believe their records shouldn't be collected in bulk, that there should not be this enormous gathering of our records. What we need to do is get to a consensus where everybody agrees that is a problem. But the body is still divided. About half of the Senate believes we should collect more records, that we are not invading your privacy enough, that privacy doesn't matter--that, by golly, let the government collect all of your records to be safe. Well, when the privacy commission looked at this, when Senator Wyden looked at this, and when other people who have the intimate knowledge looked at this, their conclusion was that the bulk collection of our records, this invasion of privacy, isn't even working, that we aren't capturing terrorists we wouldn't have caught otherwise by this information. So the practical argument that says we will give up our privacy to keep us safe, even that argument is not a valid argument. But we have been looking at some of the possible solutions--and I see the Senator from New Mexico and would be pleased to entertain a question if he has a question. (Mr. LEE assumed the Chair.)

Mr. PAUL. Mr. President, I would like to thank the Senator from Oregon, and I would like to point out to the American people, to people who are always crying out and saying ``Why can't you work together? Why can't you work with the other side?'' that I think we have a false understanding sometimes of compromise. The Senator from Oregon is from the opposite party. We are in two opposite parties, and we don't agree on every issue. But when it comes to privacy and the Bill of Rights and what we need to do to protect the Fourth Amendment, we are not splitting the difference to try to find a middle ground between us. We both believe in the Fourth Amendment. We both believe in protecting the Fourth Amendment and protecting your right to privacy. So bipartisanship can be about two people believing in the same thing but just being in different parties. It means we may not agree on 100 percent of issues, but on a few, we are exactly together, and we don't split the difference. It isn't always about splitting the difference. You can have true, healthy bipartisanship, Republican, Democrat, Independent coming together on a constitutional principle, coming together on something that is important. I didn't come to the floor today because I want to get some money for one individual project for one person. I came because I want something for everybody. I want freedom for everybody, and I want protection for the individual. I want protection against the government's invasion of your privacy. I thank the Senator from Oregon for his insightful questions. One of the things we talked a little bit about as Senator Wyden and I were going through a series of questions was some of the different boards that have been put in place by the President and have come out and said that the program--the Executive order--the President put in place two panels, a review panel and another one called the Privacy and Civil Liberties Oversight Board, and, interestingly, both panels told him the same thing: that what he was doing was illegal and wrong and it ought to stop. Then the President came out and said ``That is great,'' but then he keeps doing it. I don't quite understand because I like the President and I take him at his word, and he says: Well, yes, I am balancing this and that, and they told me this, and if Congress stops it, I will obey Congress. It is like, we didn't start this. The President started this program by himself. He didn't tell us about it. Maybe one or two people knew about it. Almost all of the representatives didn't know about it, and no Americans knew about it. And then when we asked them about it, they lied to us and said they weren't doing it. The President has two official panels, and they both said it is illegal and ought to stop. And the PATRIOT Act doesn't justify what they are doing. And this was all created by Executive order. So what is the President's response? He just keeps collecting your records. Does nobody in America think this is strange or unusual that the President will continue a program that his own advisers tell him is illegal and that the courts have now said is illegal, and he goes on. But this isn't all one-sided. That is for one political party. But in my political party, there are people saying: I guess the President's advisers say it is illegal, the court says it is illegal, but, man, they are not collecting enough. I just wish they were collecting more Americans' records without a warrant. What a bizarre world, that people don't seem to be listening to the courts, to the experts, or to the Constitution. The Privacy and Civil Liberties Oversight Board, though, I think really had some insightful comments. They give a description, first of all, of collecting all of your phone records, and I like the way they put it. They said that an order was given so that the NSA is ``to collect nearly all call detail records generated by certain telephone companies in the United States. . . .'' Sometimes when you read a sentence, you don't quite get to the importance. ``Nearly all.'' So we are not talking about 1,000 records. We are not talking about 1 million records. We are talking about nearly all of the records in the entire United States. There are probably over 100 million phones, I am thinking, in the United States, so over 100 million records. Every record has thousands of pieces of information in it, so we are talking about billions of bits of information that the government is collecting. I don't have a problem if they want to collect the phone data of terrorists. In fact, I want them to. I don't have a problem if they will go 100 hops into the data if they have a warrant. If John Doe has a warrant, look at all his phone records. Ask a judge to put his name on the warrant and look at all of his records. If there are 100 people he called and they are people you are suspicion of, call them, too. Go to the next hop, go to the next hop, go to the next hop. There is no limit. But just do it appropriately. Do it appropriately with a warrant with somebody's name on it. I see no reason why we can't do this with the Constitution. We are now collecting the records of hundreds of millions of people without a warrant, and I think it needs to stop. The President's own commission says to stop. Here is what the commission says: ``From 2001 through early 2006 the NSA collected bulk data based on a Presidential authorization.'' So, interestingly--and this ought to scare you, too--they didn't even use the PATRIOT Act in the beginning at all. The President just wrote a note to the head of the NSA and said: Just start collecting all their stuff, without any kind of warrant. And then later on they started saying: Well, maybe the PATRIOT Act justifies this. But for 5 years they collected data with no warrant and with no legal justification, and they do it through something they call the inherent powers of the President, article II powers. Article II is the section of the Constitution that gives the President powers. We designate what the President can do. Article I designates what we can do. Interestingly, our Framers put article I first, and those of us in Congress think that maybe they thought the powers of Congress were closer to the people and more important, and they gave delegated powers to us, and they were very specific. But what concerns me about the bulk collection is that for 5 years it wasn't even done with regard to the PATRIOT Act. I am guessing it was done under the Executive order. As much as I don't like the PATRIOT Act and would like to repeal the PATRIOT Act and simply use the Constitution, I am afraid that even if we repeal the PATRIOT Act, they would still do what they want. Your government has run amok. Things are runaway, and the government really is not paying attention to the rule of law. For the first time, in 2006, the court got involved. The intelligence court at that time finally heard the first order under section 215. So for 5 years they were collecting all the phone records with just a Presidential order. Now we do it under the PATRIOT Act. But the rule of law is about checks and balances. It is about balancing the executive branch and the legislative branch and the judiciary branch. It is about balancing the police in the judiciary. We talked about warrants and the police not writing warrants. I see on the floor one of the Nation's leading experts in the Fourth Amendment and the Constitution, who has recently written a book on this, and I told him recently I have been stealing his story and at least half the time giving him credit for it. But I talked earlier on the floor about the story of John Wilkes, and if the Senator from Utah is interested in telling us a little bit of the story, I would like to hear a little bit from his angle or in the form of a question or any other question he has.