[Congressional Record Volume 162, Number 99 (Tuesday, June 21, 2016)]
[Senate]
[Pages S4383-S4404]


 COMMERCE, JUSTICE, SCIENCE, AND RELATED AGENCIES APPROPRIATIONS ACT, 
                                  2016

[...]

                           Amendment No. 4787

  Mr. WYDEN. Mr. President, I believe the next vote will take place on 
the amendment offered by the senior Senator from Arizona that would 
allow for the issuance of what are called national security letters, or 
NSLs, which are administrative subpoenas, and there will be an 
additional provision on what is called lone wolf. I am going to direct 
most of my comments for colleagues on the national security letters 
because the lone wolf provision was reauthorized for another 4 years as 
part of the USA FREEDOM Act.
  I want colleagues to understand that this tool, which certainly has 
been debated, while never used--it wouldn't have applied to the Orlando 
or San Bernardino cases--I want colleagues to understand that it is the 
law of the land today, and in the USA FREEDOM Act, it was extended for 
another 4 years.
  What I would like to do, though, is focus my remarks on the amendment 
from the senior Senator from Arizona as it relates to national security 
letters. In effect, what the senior Senator from Arizona is seeking to 
do is add back a provision that the administration of George W. Bush--
not exactly an administration people would accuse of being soft on 
terror--the senior Senator from Arizona is seeking to add back this 
provision that was rejected by the administration of George W. Bush.
  Here is how the amendment offered by the senior Senator from Arizona 
would work. Under his amendment, which we will vote on tomorrow, 
national security letters, which are called NSLs, could be issued by 
any FBI field office to demand records from a company without going to 
a judge or without any other oversight whatsoever. So let's repeat that 
because what colleagues have wanted to know is exactly what this would 
cover. The McCain amendment would allow for the government to demand 
email records, text message logs, Web browsing history, and certain 
types of other location information without any court oversight 
whatsoever.
  As I have indicated, this had been on the books for a number of 
years, and the administration of George W. Bush said it was 
unnecessary--in effect, that it was unnecessarily intrusive.
  In addition, since the Bush administration acted, I want to make 
mention of the fact that in the USA FREEDOM Act, the Congress adopted 
something I have been working on for a number of years--since really 
2013--to, in effect, give the government additional authority in the 
case of emergencies.
  In other words, I have always felt the Fourth Amendment and the 
warrant process was something that was very

[[Page S4387]]

special in our country, but we live, of course, in a very dangerous 
time. We are all concerned about the security and the safety and the 
well-being of the people we represent. So I said, in section 102 of the 
FREEDOM Act, let's make sure the FBI has all the authorities necessary 
to protect the American people in the instance of an emergency. So the 
USA FREEDOM Act gave the FBI the authority to demand all the records 
they deemed necessary and then, in effect, after the fact--after the 
fact--come back and settle up with the court. So unless you are opposed 
to court oversight after the fact, unless you are opposed to court 
oversight altogether, there is no reason to support the amendment 
offered by the senior Senator from Arizona.
  A number of colleagues have also asked about the history of these 
national security letters. There is a long history of abuse and misuse, 
a long and very undistinguished record of abusive practices.
  The Justice Department inspector general has issued four separate 
reports over the past few years--four separate reports--documenting a 
number of serious problems. The inspector general found that data 
collected pursuant to the national security letters was stored 
indefinitely and used to gain access to private information in cases 
that weren't relevant to an FBI investigation, and the national 
security letters were used to collect tens of thousands of records at a 
time.
  Some have also made mention of the fact that a company that gets one 
of these national security letters could challenge it in court. That is 
technically right. Big companies that have the resources can challenge 
them. The small companies invariably say they can't afford to do that. 
So, again, no oversight. No oversight--particularly striking given the 
fact that, as I have noted, in the FREEDOM Act--something I felt very 
strongly about--we gave the government additional authority in the 
instance of emergencies.
  So we have now, by virtue of the amendment we will vote on tomorrow 
from my friend and colleague--we certainly have agreed on plenty of 
issues over the years. This is one where we see it differently. You 
have something the Bush administration rejected. The administration of 
George W. Bush--hardly one that we would say is sympathetic to the idea 
of weakening the government's stance against terror--they thought this 
was a mistake. They thought the amendment that there will be an effort 
to add back in was a mistake, and it was taken out. This would not have 
beefed up the fight against what happened in San Bernardino and 
Orlando.
  The FBI says it would help them with paperwork. I am not going to 
quibble with that. I have great respect for the FBI. But we are going 
to abandon court oversight in an area where the inspector general has 
documented abuses because it is convenient?
  Colleagues, I will close with this: It is a dangerous time. If you 
sit on the Intelligence Committee, as I have for a number of years, you 
know that is not in question. The American people want policies that 
promote their security and their liberty. That is what we are aiming 
for. What is being advanced in this amendment is an idea that really 
doesn't do either. It doesn't advance the security and well-being of 
the American people, and it certainly erodes their liberties.
  So I hope tomorrow, when we have the vote on this amendment, that 
colleagues will look at the history. It was rejected by the Bush 
administration. Now we have emergency authority, I say to my 
colleagues, for the government to get information when it needs it. 
After the fact, the government can come back and settle up.
  I think this amendment is a very substantial mistake. There has been 
a long history documented by the inspector general of abuses with these 
national security letters. I urge my colleagues tomorrow to oppose this 
amendment.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Arizona.
  Mr. McCAIN. Mr. President, the White House approved the FBI's request 
for this fix and sent forward a proposal, and then FBI Director James 
Comey, who I think is well respected--in fact, probably one of the most 
respected men in America--summed up the importance of this amendment, 
the Director of the FBI. No one who I know of has accused the Director 
of the FBI of trying to adopt some unconstitutional practices or gather 
power upon himself and his agency. Here is what he said: This amendment 
``would be enormously helpful.'' That is despite what the Senator from 
Oregon says. He said this is essentially ``a typo in the law that was 
passed a number of years ago that requires us to get records, ordinary 
transaction records that we can get in most contexts with a non-court 
order, because it doesn't involve content of any kind, to go to the 
FISA court to get a court order to get these records. Nobody intended 
that.'' That is what the Director of the FBI says. That is what the 
record shows, as is important. As the Director of the FBI says:

       Nobody intended that. Nobody I've heard thinks that's 
     necessary. It would save us a tremendous amount of work hours 
     if we could fix that, without any compromise to anyone's 
     civil liberties or civil rights.

  I agree with the Director of the FBI.
  This amendment--I am astounded, very frankly, that there is not a 
unanimous vote on this. It is simple. If the FBI is able to go into 
your financial written records, if they are able to go into your 
telephone records, then, pray tell, what is the difference between 
those and electronic records? It just so happens electronic records are 
much larger.
  So don't take my word for it, I say to my colleagues, but I would 
listen to the Federal Law Enforcement Officers Association--that 
renowned ``corrupt'' organization. The Federal Law Enforcement Officers 
Association--the Nation's largest nonpartisan professional association 
which represents Federal law enforcement officers from every Federal 
law enforcement agency, including the FBI--strongly supports this 
amendment.
  They go on to say--again, contrary to what the Senator from Oregon 
says, the Federal Law Enforcement Officers Association says that this 
amendment ``would correct an oversight in the law that has impeded the 
FBI's ability to obtain these records in national security cases on a 
timely basis.'' They go on to say that ``for over fifteen years--
including the eight years after 9/11--the FBI continued to use''--what 
they are talking about now is they want ``to gather electronic 
communications transactional records. Significantly, this authority was 
never used to acquire these records indiscriminantly.'' They go on to 
say that the amendment ``is necessary to protect America from terrorist 
threats and transnational criminal organizations.''
  This is what those men and women--thousands of them are members of 
this organization. The list is incredibly long. The Federal law 
enforcement agencies believe this amendment is necessary to protect 
them and America from terrorist threats and transnational criminal 
organizations. It is clear.
  Mr. President, I ask unanimous consent that the following letters of 
support be printed in the Record: the Federal Law Enforcement Officers 
Association letter, the National Fraternal Order of Police letter, and 
the Federal Bureau of Investigation Agents Association letter.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                           Federal Law Enforcement


                                         Officers Association,

                                    Washington, DC, June 10, 2016.
     Hon. Charles E. Grassley,
     Chairman, Judiciary Committee,
     U.S. Senate, Washington, DC.
     Hon. Patrick J. Leahy,
     Ranking Member, Judiciary Committee, U.S. Senate, Washington, 
         DC.
       Dear Chairman Grassley and Ranking Member Leahy: The 
     Federal Law Enforcement Officers Association (FLEOA)--the 
     nation's largest non-partisan professional association which 
     represents federal law enforcement officers from every 
     federal law enforcement agency, including the FBI--strongly 
     supports Senator Cornyn's effort to address issues related to 
     Electronic Communication Transactional Records (ECTRs) during 
     the Senate Judiciary Committee's consideration of S. 356, the 
     Electronic Communications Privacy Act Amendments Act of 2015. 
     The amendment, referred to as the ``ECTR Fix,'' would update 
     electronic privacy laws and would help the FBI effectively 
     investigate and thwart terrorist plots.
       The ECTR amendment would correct an oversight in the law 
     that has impeded the FBI's ability to obtain these records in 
     national security cases on a timely basis. In 
     Counterterrorism and counterintelligence

[[Page S4388]]

     investigations, telephone toll records and electronic 
     communications transactional records are key components. It's 
     important to distinguish that these electronic communications 
     are metadata, not content. Section 2709 of Title 18 permits 
     the FBI to collect this data with a national security letter 
     so long as the information is ``relevant to an authorized 
     investigation to protect against international terrorism or 
     clandestine intelligence activities.'' The metadata from 
     these records are critical when the content of terrorist 
     communications are increasingly beyond the reach of lawful 
     process because of the widespread deployment of strong 
     encryption software.
       As originally enacted, Section 2709(a) established a duty 
     for wire and electronic service providers to comply with an 
     FBI request for ``subscriber information and toll billing 
     records information, or electronic communications 
     transactional records,'' and subsection (b) provided the 
     means by which the FBI could make such requests. Section 
     2709(b), however, did not specify the information that the 
     FBI could request. Instead, it referenced ``any such 
     information and records'' as described in subsection (a).
       Congress amended Section 2709(b) in 1993 to specify that 
     the ``subscriber information'' that a certification could 
     request consisted of ``name, address, length of service, and 
     toll billing records.'' No changes were made to the authority 
     to obtain electronic communications transactional records. 
     However, while Section 2709(a) still required production of 
     electronic communications transactional records, removal of 
     the phrase ``any such information and records'' left 
     subsection (b) without any specific reference to the 
     electronic communications transactional records referenced in 
     subsection (a). Nonetheless, Congress clearly intended 
     Section 2709 to continue to serve as a means of obtaining 
     electronic communications transactional records, as 
     subsection (a) continued to refer to a duty to produce such 
     records on request, and the title of the provision continued 
     to reference ``transactional records.''
       For over fifteen years--including the eight years after 9/
     11--the FBI continued to use Section 2709 to gather 
     electronic communications transactional records. 
     Significantly, this authority was never used to acquire these 
     records indiscriminately or in bulk. However, the recently-
     passed USA FREEDOM Act specifically prohibits doing so. In 
     2009, however, some electronic communications service 
     providers began refusing to comply with these requests, 
     citing the scrivener's error referenced above. The number of 
     providers refusing to do so has increased over the years. In 
     certain cases, the FBI has sought the records using other 
     authorities, but those authorities take significantly more 
     time and resources than using Section 2709.
       This section of the bill would amend Section 2709 to 
     reflect the original intent of Congress by clarifying the 
     types of ``telephone toll and transactional records'' that 
     the FBI used it to obtain for many years, while explicitly 
     prohibiting the collection of communications content.
       In December 2015, FBI Director James Comey summed up the 
     critical importance of the ETCR amendment when he testified 
     before the Senate Judiciary Committee. He said, clarifying 
     this authority ``would be enormously helpful. There is 
     essentially a typo in the law that was passed a number of 
     years ago that requires us to get records, ordinary 
     transaction records that we can get in most contexts with a 
     non-court order, because it doesn't involve content of any 
     kind, to go to the FISA court to get a court order to get 
     these records. Nobody intended that. Nobody I've heard thinks 
     that that's necessary. It would save us a tremendous amount 
     of work hours if we could fix that, without any compromise to 
     anyone's civil liberties or civil rights.''
       The ECTR amendment is necessary to protect America from 
     terrorist threats and transnational criminal organizations. I 
     strongly urge you to consider adopting the ETCR Fix as part 
     of S. 356 the Electronic Communications Privacy Act 
     Amendments Act.
           Respectively,
                                                 Nathan R. Catura,
     FLEOA National President.
                                  ____

                                                National Fraternal


                                              Order of Police,

                                    Washington, DC, June 21, 2016.
     Hon. Mitch McConnell,
     Majority Leader,
     U.S. Senate, Washington, DC.
     Hon. Harry M. Reid,
     Minority Leader,
     U.S. Senate, Washington, DC.
       Dear Senators McConnell and Reid, I am writing on behalf of 
     the members of the Fraternal Order of Police to advise you of 
     our support for S. Amdt. 4787 which will be offered to amend 
     H.R. 2578, the ``Commerce, Justice, Science, and Related 
     Agencies Appropriations Act, 2016.''
       The amendment will provide Federal law enforcement with the 
     tools they need to investigate and prevent terrorist attacks 
     by clarifying Section 2709 of Title 18 with respect to 
     Electronic Communication Transactional Records (ECTRs). Under 
     this statute, Federal law enforcement authorities have been 
     able to request and then collect metadata, not content, from 
     service providers as long as they have a national security 
     letter and the data request is ``relevant to an authorized 
     investigation to protect against international terrorism or 
     clandestine intelligence activities.'' However, despite 15 
     years of regular cooperation, recent requests made to some 
     service providers have been rejected and these companies have 
     cited ambiguity in the existing statute.
       The amendment would make clear Congressional intent that 
     such requests do not allow access to any content but that 
     name, email, Internet Protocol (IP) and physical addresses, 
     telephone me/instrument number, account number, login 
     history, length and type of service as well as the means by 
     which the service is paid for be made available to law 
     enforcement. This meta data can be crucial in 
     counterterrorism and counterintelligence investigations. The 
     FOP believes the amendment merely clarifies the existing 
     statute and does not give law enforcement any new authorities 
     or access to data previously unavailable to them. In fact, 
     the recent resistance to such requests was described to the 
     Committee on the Judiciary as ``essentially a typo'' and the 
     amendment better defines Congressional intent with respect to 
     ``telephone toll and transactional records.''
       I urge you and the Members of the United States Senate to 
     support S. Amdt. 4787 to ensure the timeliness and 
     effectiveness of our nation's counterterror and 
     counterintelligence operations. Our nation's security and 
     defense should not be held hostage or investigations 
     jeopardized because of a ``typo.''
       Thank you as always for your consideration of the views of 
     the more than 330,000 members of the Fraternal Order of 
     Police. If I can provide any additional information on this 
     or any other issue, please do not hesitate to contact me or 
     Executive Director Jim Pasco in my Washington, D.C. office.
           Sincerely,
                                                 Chuck Canterbury,
     National President.
                                  ____

                                  Federal Bureau of Investigation,


                                           Agents Association,

                                     Alexandria, VA, June 8, 2016.
     Re: Electronic Communication Transactional Records.

     Hon. Charles E. Grassley,
     Chairman, Senate Committee on the Judiciary, U.S. Senate, 
         Washington, DC.
     Hon. Patrick J. Leahy,
     Ranking Member, Senate Committee on the Judiciary, U.S. 
         Senate, Washington, DC.
       Dear Chairman Grassley and Ranking Member Leahy: On behalf 
     of the FBI Agents Association (``FBIAA''), a voluntary 
     professional association currently representing over 13,000 
     active duty and retired FBI Special Agents, I write to 
     express our support for addressing issues related to 
     Electronic Communication Transactional Records (``ECTRs'') 
     during the Senate Judiciary Committee's consideration of S. 
     356, the Electronic Communications Privacy Act Amendments Act 
     of 2015. The relevant amendment, referred to as the ``ECTR 
     Fix,'' would be wholly consistent with the effort to update 
     electronic privacy laws, and would help the FBI more 
     effectively investigate and thwart terrorist plots.
       Notwithstanding the well-funded efforts by technology 
     companies and activists to misrepresent the ECTR Fix, the 
     truth is that clarifying the language of Sec. 2709 would 
     strike a familiar and effective balance between privacy and 
     security. ECTRs provide information abut the IP addresses, 
     routing, and sessions times for electronic communications, 
     and electronic service providers have complied with FBI 
     requests for ECTRs pursuant to Sec. 2709 for years. This 
     cooperation furthered the protection of the public, as ECTRs 
     are used to identify patterns of communications in the course 
     of national security and terrorism investigations. At the 
     same time, access to ECTRs does not represent a threat to the 
     privacy identify patterns of communications in the course of 
     national security and terrorism investigations. At the same 
     time, access to ECTRs does not represent a threat to the 
     privacy of Americans because the FBI can only request ECTRs 
     for a limited scope of investigations, and because ECTRs do 
     not include detailed information about the specific web pages 
     visited by internet users or the content of web pages or 
     electronic communications.
       Despite these facts, and as a part of their privacy-focused 
     marketing strategies, technology companies recently began 
     refusing to cooperate with the FBI on ECTR requests, and have 
     pointed to statutory ambiguity as a justification for their 
     actions. This choice has undermined national security and 
     counterterrorism investigations, and necessitates 
     Congressional action.
       Given the importance of protecting the public from 
     terrorist threats, we support an amendment to include the 
     ECTR Fix in S. 356, as well as the efforts to address the 
     issue through other legislative vehicles. We hope that 
     Congress will make these reasonable and common-sense changes 
     in a timely manner.
       If you have any questions, please contact me at 
     [email protected] or 703-247-2173, or FBIAA General Counsel 
     Dee Martin, [email protected], and Joshua Zive, 
     [email protected]
           Sincerely,
                                                 Reynaldo Tariche,
                                                        President.

  Mr. McCAIN. I will go on.
  The Federal Bureau of Investigation Agents Association says that it 
is a voluntary professional association currently representing over 
13,000 active-duty and retired FBI special agents.

[[Page S4389]]

Here are 13,000 FBI agents, active and retired, who believe this 
amendment is essential for them to be able to do their job and protect 
America.
  By the way--hello--we just had an attack in Orlando where 49 
Americans were slaughtered, and we are arguing whether we should allow 
the FBI to find out not the information in electronic communications, 
but just find out about electronic communications. That is what this is 
about.
  I will quote from the 13,000 active-duty and retired FBI special 
agents:

       I write to express our support for addressing issues 
     related to Electronic Communication Transactional Records 
     (``ECTRs''). . . . The relevant amendment, referred to as the 
     ``ECTR Fix,'' would be wholly consistent with the effort to 
     update electronic privacy laws, and would help the FBI more 
     effectively investigate and thwart terrorist plots.

  After Orlando, do we want to help the FBI more effectively 
investigate and thwart terrorist plots or do we want to restrict their 
ability to do so? Is that what the Senator from Oregon wants? I don't 
think so.

       Notwithstanding the well-funded efforts by technology 
     companies and activists to misrepresent the ECTR Fix, the 
     truth is that clarifying the language [of subsection 2709] 
     would strike a familiar and effective balance between privacy 
     and security. ECTRs provide information about the IP 
     addresses, routing, and sessions times for electronic 
     communications, and electronic service providers have 
     complied with FBI requests . . . for years. . . . Given the 
     importance of protecting the public from terrorist threats, 
     we support an amendment to include the ECTR Fix . . . as well 
     as the efforts to address the issue through other legislative 
     vehicles. We hope that Congress will make these reasonable 
     and common-sense changes in a timely manner.

  It is signed by Reynaldo Tariche, the president of the Federal Bureau 
of Investigation Agents Association.
  So we have a choice here. We have a choice here. We have those who 
are so worried about privacy and those whose job and whose solemn duty 
is to protect this Nation--Federal law enforcement officers, the FBI, 
13,000 of the FBI agents, and then, of course, we have those who are 
under assault on a daily basis--our police.
  This is a letter from the Fraternal Order of Police ``writing on 
behalf of the members of the Fraternal Order of Police to advise you of 
our support'' for this amendment which will be offered. ``The amendment 
will provide Federal law enforcement with the tools they need to 
investigate and prevent terrorist attacks.'' It isn't any more 
complicated than that.
  My remarks probably will be a little longer.
  The Fraternal Order of Police has it right. This will provide an 
ability to prevent and counter further terrorist attacks.
  How many attacks do we need? I would ask my colleagues who are 
opposed to this simple amendment, how many attacks? Another San 
Bernardino? Another Orlando? Two or three more attacks before we give 
the Director of the FBI the tools he says he needs and wants to protect 
this Nation? That is what this is all about.
  The Fraternal Order of Police goes on to say that ``the amendment 
would make clear Congressional intent that such requests do not allow 
access to any content but that name, email, Internet Protocol (IP) and 
physical addresses, telephone/instrument number, account number, login 
history, length and type of service as well as the means by which the 
service is paid for be made available to law enforcement.''
  The Senator from Oregon, if I got his remarks right, says: Well, 
there has been corruption of it. There has been abuse. There has been 
misapplication.
  One of our jobs is oversight, if that is happening. But I also would 
say that is a damning indictment of these men and women who are putting 
their lives on the line every single day and are begging for this tool 
to defend this Nation.
  The Fraternal Order of Police says:

       I urge you and the Members of the United States Senate to 
     support [the amendment] to ensure the timeliness and 
     effectiveness of our nation's counterterror and 
     counterintelligence operations. Our nation's security and 
     defense should not be held hostage or investigations 
     jeopardized because of a ``typo.''
       Thank you as always for your consideration of the views of 
     the more than 330,000 members of the Fraternal Order of 
     Police.

  These are the views of more than 330,000 members of the Fraternal 
Order of Police. I think maybe we ought to listen to the will of 
330,000 men and women who are out there every day defending this 
Nation. Maybe we ought to listen to them. Maybe they are the ones whose 
lives are in danger. They are the ones who are the first targets of the 
terrorists. Maybe we ought to listen to their views rather than some 
misguided view that somehow this invades our privacy, to find out 
simply whether an address has been used and for how long--not content. 
If content is involved, that requires going to the FISA Court.
  Last week the Director of the CIA appeared before a rare open session 
of the Senate Intelligence Committee to deliver a stern warning to the 
American people: ISIL has built a global apparatus with the intent to 
plot and incite attacks against the West. He explained that despite our 
2-year air campaign in Iraq and Syria and despite our efforts to build 
and fight with local forces and despite the best work of our special 
operators, ISIL and other terrorist groups continue to evolve and plan 
to kill innocent Americans who reject their hateful ideology.
  That is the warning of the Director of the CIA. The CIA's warning 
obviously comes after the attack. It is remarkable. The CIA's notice 
about ISIL's continued strength followed years of warnings by the 
Director of the FBI and others in law enforcement who have explained to 
policymakers time and time again that the use of advanced technologies 
by our enemies is making it increasingly difficult for law enforcement 
to uncover and stop attacks. That is their view.
  We give these people the responsibility to defend this Nation, 
particularly against these attacks, and they are telling us they can't 
adequately defend against these attacks because of a provision we have 
that they can't even look at the fact that a site was used.
  By the way, if the Senator from Oregon and others believe this is an 
invasion of privacy, then why don't they propose an amendment that 
telephone and financial records should also be in that same category? 
Of course, that has the problem of being consistent.
  The law allows the FBI to request telephone billing information, 
financial transaction records, but terrorists don't radicalize by phone 
and they don't listen to ISIL propaganda through financial 
transactions. They radicalize through the Internet. I repeat: They 
radicalize through the Internet. So if they are radicalizing through 
the Internet, shouldn't we gain as much possible information as we can 
by monitoring their use of the Internet?
  Reports indicate that in 2013 the Orlando terrorist was removed from 
a terrorist watch list because there was insufficient information 
showing he was radicalized and therefore a threat. Perhaps--and I 
emphasize ``perhaps''--if the FBI had more effective authorities that 
would allow them to more easily determine Internet activity of those 
suspected of radicalization, he would have remained, perhaps, on the 
watch list. Currently, the FBI can only receive electronic 
transactional records information by going through the FISA Court 
process, which is a time-intensive court process that often takes over 
a month. With the thousands of potentially radicalized individuals 
already in the United States, we need to make it easier, not harder, 
for the FBI to receive the critical evidence they need so they can 
focus their investigations.
  Let me state again clearly for the benefit of my colleagues what this 
provision does not do. It does not allow the FBI to see the content of 
emails or conversations in Internet chat rooms. As I said before, this 
provision is narrowly drawn and carefully limited.
  The administration, Congress, and national security experts from both 
sides of the aisle have spoken repeatedly about taking on ISIL's 
Internet radicalism. This provision, according to the Director of the 
FBI, is a most important tool to give the FBI valuable data points to 
do just that.
  We face a threat from individuals who have been radicalized by the 
words, actions, and ideology of terrorist groups. These individuals may 
act alone, without clear direction from terrorist groups, but they 
fulfill the intent and desire of these groups.
  We must ensure that our law enforcement authorities keep pace with 
the tactics and methods of our adversaries. If our adversaries seek to 
attack us by inciting lone-wolf violence, we have to

[[Page S4390]]

make sure law enforcement has the authorities they need to investigate 
and, we hope, stop those attacks.
  Our intelligence and law enforcement officers are the best in the 
world, but as terrorist networks grow and metastasize around the world, 
we ask them to bear an increasingly difficult--some even say 
impossible--burden. We ask them to uncover threats by individuals who 
are hidden among millions of law-abiding citizens. We ask them to 
determine which of us has been inspired by evil to do harm to our 
fellow citizens, and we ask that they do this difficult task with 
little or no impact on anyone's privacy. We have to recognize this 
threat for what it is.
  As our enemy evolves, so, too, we must evolve and strengthen our 
counterterrorism tools and authorities. Let's stop tying the hands of 
those who wish only to keep us safe and on many occasions are ready to 
make themselves unsafe in order to protect our fellow citizens.
  I guess my colleagues are presented with a choice. As the Senator 
from Oregon, with great skill and oratorical tools, will talk about 
rights of privacy, will talk about constitutional protections, all of 
those things--this is simple. This is a simple amendment. It has 
nothing to do with going into these sites and finding out information. 
That requires going to court.
  All it does is tell the FBI, whose Director has pled for this 
capability--does anyone assume the Director of the FBI wants to act in 
an unconstitutional fashion? Of course not. But you must accept the 
fact that it is his responsibility to protect the Nation and, 
therefore, when he asks for the tools to protect this Nation, then 
maybe we ought to pay attention and give them to him. I know of no one 
who is an objective observer who believes it would be unconstitutional 
to adopt this amendment.
  I don't know about abuses in the past that the Senator from Oregon 
says have taken place. I know abuses have taken place in the past on 
almost any aspect of American life. But I also know that when you have 
all of our police--330,000 of them, representing them--13,000 in the 
Federal Bureau of Investigation, Federal law enforcement agencies from 
all over America--the list is incredibly long--all asking for the 
ability to defend this Nation, by God, I think we should give it to 
them.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Oregon.
  Mr. WYDEN. Mr. President, the senior Senator from Arizona--whom, as I 
mentioned, I have worked with often--has said, in effect, if you oppose 
his amendment, you are interested in privacy.
  The reality is, my interest is in privacy and security. I believe it 
is possible to have both, and I want to explain how that is the case.
  Something I worked on for a long time, the USA FREEDOM Act, we 
included section 102. Section 102 very explicitly said that if the 
government--if the FBI, in a situation like Orlando or San Bernardino, 
for example--if the government believed it needed information 
immediately--immediately--the government could get the information and 
then go back to the court after the fact. In effect, after the 
government had been able to get the information of its own volition, 
settle up immediately so as to protect the American people.
  This debate is about are we going to have policies that advance both 
our security and our liberty. I have felt very strongly--I see my 
seatmate, the distinguished ranking member of the Appropriations 
Committee. We sit next to each other on the Intelligence Committee. We 
talk about these issues very often. As part of the USA FREEDOM Act, I 
pushed very hard to make sure the government had those emergency 
authorities.
  This is a dangerous time. Nobody disputes that. If you have been on 
the Intelligence Committee, as Senator Mikulski and I have been for so 
many years, that is not in question. This is a dangerous time.
  No. 1, the question is, Are we going to have both security and 
liberty? In my view, that is where the amendment from the senior 
Senator from Arizona comes up short.
  No. 2, the Senator from Arizona has said the problem he seeks to 
correct was just a typo, kind of a clerical error--not even close.
  The debate back in 1993--we have the record, the House, the Senate, 
the FBI. It was very carefully crafted in a way to ensure that there 
would not be abuse in the digital area. When you look at that 
specifically, that is very clear. This was not a typo. This was 
carefully crafted--House, Senate, FBI--in 1993.
  When my friend from Arizona says it was a typo--not even close. I 
hope colleagues will avail themselves of our offer to look at the 
record.
  Right now, nobody from the government, the FBI, has said, if it had 
the power the Senator from Arizona seeks to give the government--nobody 
in the intelligence field or in the government said it would have 
prevented Orlando.
  The fact is, the government has the authority, the emergency 
authority, and it was something I pushed very hard for. It was right at 
the core of my belief that we ought to be pushing for both security and 
liberty at a dangerous time and that the two are not mutually 
exclusive. So we added to the USA FREEDOM Act that emergency authority 
for the government.
  It is also true, the administration of George W. Bush specifically 
rejected the idea the Senator from Arizona is calling for. They 
specifically said this has created problems. There have been four 
separate inspector general analyses that support that.
  As we continue this discussion, I hope colleagues will see that we 
ought to keep the focus on both security and liberty. That is why the 
emergency authorities we got in the USA FREEDOM Act are so important. 
They are intact. They can be used for any situation--Orlando, San 
Bernardino, any other--that the government, the FBI, feels the security 
and safety of the American people are at stake.
  With respect to the lone-wolf provision, which I heard my colleague 
mention, we reauthorized that for 4 years in the USA FREEDOM Act. I 
supported that as well.
  I just hope colleagues will think through the implications of the 
amendment from the Senator from Arizona because under what he is 
talking about, a national security letter, what is called an NSL, can 
be issued by any FBI field office to demand records from a company 
without going to a judge. To support this, in effect, you basically are 
saying you don't support oversight, you don't support court oversight, 
because we have given the court and the government the ability to move 
quickly.
  I hope tomorrow we don't conclude that the FBI ought to be able to 
demand email records, text message logs, Web-browsing history, and 
certain types of information without court oversight.
  The Senator from Arizona said: Well, you are not going to get all the 
content of those emails.
  That is true, but the fact is, in a lot of instances, when you know 
who emailed whom, you know a whole lot about that person. If somebody 
emailed the psychiatrist four times in 48 hours, you know a whole lot 
about the person. You don't have to see all of the content of the 
emails.
  Colleagues, we will discuss this some more, but I hope Senators will 
see this is about ensuring there is both security and liberty. The 
government has not said or intimated that if they had the power the 
Senator from Arizona seeks to put back--that the Bush administration 
rejected--the government has not said or intimated this would have 
prevented the horrific tragedy in Orlando.
  I hope my colleagues will oppose the McCain amendment tomorrow.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Maryland.
  Ms. MIKULSKI. Mr. President, we have heard a spirited debate between 
two distinguished Senators, two distinguished Americans, who are very 
passionate about defending America, and I know there will be more 
debate on this.
  The Senator from Arizona and those who cosponsor his amendment want 
to add more authority to the FBI.
  I rise to say that in the next day, when there is an opportunity to 
offer another amendment, I will be offering another amendment to give 
the FBI more money to do the job with the authority it does have. 
Working on a bipartisan basis, the distinguished Senator from Alabama 
and I tried to produce a very good bill to fund the Justice Department, 
one of which is the FBI.

[[Page S4391]]

  We did do a good job, there is no doubt about it, but we operated 
within the budget caps. Within that, we did the best we could, but 
there is no doubt that the FBI could use more resources to be able to 
enhance its counterterrorism efforts and also increase its surveillance 
by tracking the terrorist threats.
  So when the opportunity arises, I will be offering an amendment that 
gives more money to the FBI, that also gives more money--working with 
the Senator from Wisconsin, Ms. Baldwin--to deal with hate crimes, one 
of the other significant issues here. Also, while we are talking about, 
again, the more authority issue, this amendment would include a section 
by Senator Leahy, the vice chair of the Judiciary Committee, that would 
have tough penalties for those who knowingly transfer or receive a 
firearm or know or have reasonable cause to believe it will be used to 
commit a crime of terrorism, violence, or drug trafficking. It will 
reduce the threat.
  We can debate all we want about more authority for the FBI. I think 
it is a good debate, the tension between security and civil liberties. 
The distinguished Presiding Officer is also a member--an active, 
diligent member--of the Intelligence Committee.
  These are not easy issues, but my amendment should be an easy issue. 
My amendment would add $175 million dedicated to the FBI's 
counterterrorism efforts that would raise funding for the FBI above 
what the House suggested. It would strengthen the FBI's 
counterterrorism workforce. The FBI would be able to restore--remember, 
not add--restore more than 350 positions, including 225 special agents 
for critical FBI investigations related to counterterrorism and 
counterintelligence. It would also give the FBI new tools to be able to 
go where these bad guys have access to new technology and new ways of 
avoiding detection.
  The number of terrorism threats disrupted by the FBI grew from 214 in 
fiscal year 2014 to 440 in fiscal year 2015. In one fiscal year, it 
actually doubled. As the threat goes, the FBI needs increased resources 
to hire and sustain the agents and intelligence analysts who interrupt 
these plots.
  Again, while we are talking more authority--and that debate will go 
on--I am saying, if you are going to give them more authority, and 
whether you are giving them more authority, the FBI is stretched thin.
  We did the best we could under the budget caps, but my amendment 
would be emergency funding. We don't look for offsets in order to take 
from one important Department of Justice function to give to the FBI or 
take from other Federal law enforcement to give to the FBI, or take 
from local law enforcement to give to the FBI. And it would be a 
tremendous boost.

  It would also boost the FBI's surveillance capabilities and add 
critical personnel, including special agents. Additional funds would be 
provided for 36 new positions, 18 fully dedicated to tracking terrorist 
threats, and it would certainly help to gather evidence on high, high 
priority targets.
  Again, while we are working at more authority, please, regardless of 
where you are on the lone-wolf debate, the Mikulski amendment offers 
the opportunity to add more funding.
  Mr. WYDEN. Will my colleague yield for a question?
  Ms. MIKULSKI. Certainly, to the Senator from Oregon.
  Mr. WYDEN. I appreciate my colleague yielding, and I am a very, very 
strong supporter of her amendment because I think the idea of adding 
more resources is absolutely essential.
  As I look at these cases--and she and I have talked about this on the 
Select Committee on Intelligence--we know that the workforce is aging 
in the intelligence community. We are going to need more dollars for 
the personnel we are going to need and certainly a lot of resources in 
a variety of areas. Is that my colleague's intention, to make sure we 
get the resources to, in effect, get out in front of these upcoming 
threats?
  Ms. MIKULSKI. The Senator has identified my rationale and its actual 
underpinnings in a most accurate and precise way.
  You see, I am from the school of thought--along with, I know, the 
ranking member of the Committee on Armed Services, also a member of the 
Committee on Appropriations--that the defense of the Nation and the 
protection of its people doesn't rely only on the Department of 
Defense. There are also other muscular ways of protecting it, some of 
which are, first of all, response and surveillance and so on in 
existing, constitutionally allowed authorities and giving more money to 
the FBI to operate under the law as we have currently defined it.
  But you know what, we need to do prevention. Prevention really comes 
from the kind of intervention that would occur with the State 
Department--again, a tool of diplomacy. And what they have is a whole 
effort underway to deal with the recruitment and radicalization of 
Islamic jihadist terrorists on the Internet. Well, we have to support 
that. When they were going for more money for defense, we made that 
argument. But I am not going to relitigate old arguments.
  We have before us Orlando. We have before us those who want to 
curtail the terrorist threat. I want to curtail that terrorist threat. 
And some of the ways I want to do it are, No. 1, add more money for the 
FBI; No. 2, join with our colleague from Wisconsin, Senator Tammy 
Baldwin, in adding more money to deal with hate crimes--hate crimes--
because often those are the aegis and the incubator and so on of future 
violence; and the other is to close the loophole to keep guns out of 
the hands of terrorists, violent criminals, and traffickers that our 
distinguished ranking member of the Judiciary Committee mentioned.
  Mr. WYDEN. If my colleague will continue to yield, just briefly, what 
my colleague has stated--and I strongly agree with--is that she is 
trying to assure that the resources are there for the future.
  I am not going to drag my colleague into the earlier discussion, but 
what I am concerned about, and have been, is that the Senator from 
Arizona is relitigating the past. In effect, when the Bush 
administration took away the power because it was too intrusive, he 
wanted to go back to it.
  But apropos of my colleague, isn't that the heart of her case--that 
she is looking to the future--FBI resources, resources to deal with 
hate crimes, resources to deal with prevention? It seems to me she is 
trying to lay out a plan for the future.
  Ms. MIKULSKI. The Senator from Oregon is absolutely correct. This 
would be funding that would begin October 1. Given no cute tricks 
around shutdown and slam-down politics as we go into the fall--that we 
could actually move our appropriations--this would provide money 
starting October 1 with these additional resources to help the FBI be 
more effective than what it is, and also to help our Justice Department 
be even more effective than what it is in fighting hate crimes.
  I will be discussing my amendment in even more detail, but I know 
there are other colleagues on the floor, and I now yield the floor.
  The PRESIDING OFFICER. The Senator from New Jersey.

[...]

                           Amendment No. 4787

  Mr. CORNYN. Mr. President, tomorrow we will have a chance to begin to 
talk about the real cause of what happened that horrible night in 
Orlando at the Pulse nightclub--that is a homegrown terrorist attack 
inspired by the poisonous ideology of ISIS, the Islamic State. We will 
have a chance to revisit the total lack of any coherent plan coming out 
of the White House to deal with the threat of the Islamic State over in 
the Middle East and the consequences of failing to deal with that here 
at home.
  The poisonous fruit of that failure and previous ones is already 
self-evident: the massacre of American soldiers at Fort Hood, TX, in 
2009 that took the lives of 13 people and an unborn child; a deadly 
attack on 2 military facilities in Chattanooga, TN, in 2015 that took 
the lives of 5 U.S. servicemembers; an attempted attack in Garland, TX, 
about a year ago that--but for a vigilant police officer was thwarted--
could have been disastrous; and then, of course, the shooting in San 
Bernardino where 14 people were killed. Add to that poisonous fruit of 
the failure to have a coherent policy to deal with the Islamic State 
and its poison, the 2013 Boston Marathon bombing, where 3 persons were 
killed and many more wounded--not by a gun but by pressure cooker bombs 
made by the terrorists. Most recently, the worst terrorist attack in 
our country since 9/11 was in Orlando, where a jihadist pledged his 
allegiance to ISIS and then viciously gunned down 49 people in that 
Orlando nightclub.
  It is telling that the Attorney General sought to withhold from the 
American people the 911 calls of the Orlando shooter to excise out--to 
rewrite history--and to diminish the terrorist influences that 
motivated him in the first place. It is further evidence that the Obama 
administration fails to see what is plainly right in front of its face 
when it comes to the threat, and it continues to refuse to deal with it 
in a

[[Page S4394]]

way that would crush ISIS and discourage people from becoming 
radicalized because they feel like ISIS is winning. If ISIS were 
crushed and destroyed, which should be our goal, I don't believe we 
would have radicalized Americans here pledging allegiance to the leader 
of a crushed or destroyed Islamic State.
  So jihadi terrorism on American soil is not just some one-off, freak 
occurrence. It is now an undeniable pattern. How many ISIS-inspired 
attacks do we need in this country before we start talking about and 
taking the threat seriously and begin targeting the evil ideology ISIS 
is selling?
  Typically, in an investigation, law enforcement has to work hours on 
end to answer the question of who did it. But that is not the case with 
these examples of Islamic extremism. We know who the enemy is. But the 
Obama administration has failed to call it for what it is, and the 
President has failed to offer any strategy to root out and exterminate 
it. Promises to ``defeat and degrade'' appear just about as hollow as 
the President's threat of retaliatory action if redlines were crossed 
with the use of chemical weapons in Syria. When that happened, there 
were no consequences.
  So the result is that ISIS isn't contained, and it is surely not 
retreating. Don't take my word for it. The Director of the Central 
Intelligence Agency just last week suggested that ISIS would continue 
to ``intensify its global terror campaign.'' They are not giving up, 
and they are not going away. They are doubling down. Like the terrorist 
in Orlando, ISIS is actively using every tool at its disposal to 
recruit, train, and radicalize individuals here in America and in other 
parts of the world.
  This terrorist army figured out a long time ago that it could 
accomplish its objectives of inflicting death and destruction on 
innocent Americans without even having to send its operatives from the 
Middle East into the United States. All it had to do was to export, not 
its soldiers, but its ideology and poisonous ideas to the United States 
via the Internet with the propaganda that it uses to, again, poison 
susceptible minds, those who are sympathetic to the cause and willing 
to swear allegiance to it and carry out the horrific acts like we saw 
in Orlando.

  Over the weekend, the House Homeland Security Committee chairman 
noted that ISIS and its supporters are posting an estimated 200,000 
tweets a day--200,000 separate messages a day on Twitter. How long will 
it take before the administration recognizes that this propaganda poses 
a growing national security problem? Once they acknowledge it, how much 
longer will it take them before they do something about it?
  In fact, we heard from FBI Director Comey that there are open 
investigations on individuals suspected of being radicalized in all 50 
States. I don't see the administration doing anything at all to 
effectively counter this terrorist propaganda popping up all over the 
Internet, turning some susceptible Americans into cold-blooded jihadist 
killers. We can fight back by equipping our law enforcement personnel 
with the tools they need to keep us safe. The fact is, you can't 
connect the dots unless you can collect the dots, and that means robust 
intelligence consistent with our Constitution, including the Fourth 
Amendment.
  Too often law enforcement officials have to operate with one hand 
over their eye or one hand behind their back, however you want to 
characterize it, because they can't access key information in a timely 
manner, and because of that they are not able to discern the pendency 
of an attack or the motivations of somebody who is planning an attack. 
If they could collect the information, maybe--just maybe--they could 
then go to the FISA Court and get a search warrant. Maybe--just maybe--
they could get a wiretap upon the showing of probable cause in court. 
Those, of course, are consistent with the Fourth Amendment protections 
against unreasonable searches and seizures, and the burden should be on 
law enforcement to produce probable cause evidence in order to justify 
collection of the content of those communications.
  We saw the consequences of our flying blind in Garland, TX, just last 
year. On the morning of the attempted terrorist attack, the two men who 
came from Phoenix dressed in body armor with semiautomatic weapons sent 
more than 100 messages overseas to suspected terrorists, and vice 
versa, but, unfortunately, FBI Director Comey--at least the last time 
he testified before the Senate Judiciary Committee--said the FBI still 
doesn't have access to that information because of encryption. This 
means our law enforcement authorities could be missing critical 
information that could uncover future terrorist attacks or identify the 
network of terrorists here so we can stop them before they kill again.
  The Garland case isn't unique. The FBI is regularly slowed down by 
outdated policies that make their job of protecting the homeland much 
more difficult--more difficult than it needs to be. We saw that in San 
Bernardino too. We have to address this gaping hole in our legal 
authorities and do all we can to give the FBI and our other law 
enforcement officials the tools they need, and a good place to start 
would be tomorrow morning by allowing the FBI to use national security 
letters to obtain key information about what suspected terrorists are 
doing on the Internet and whom they are communicating with online in 
counterterrorism investigations. This is not for content, as the 
Presiding Officer knows. This is information about Internet and email 
addresses, much as national security letters are currently authorized 
to collect telephone numbers and financial information. In fact, the 
FBI Director said the omission of this authority years ago, he 
believes, was an oversight, but it now provides a gaping vulnerability 
and has blinded the FBI to information that could well allow them to 
have detected the intentions earlier of jihadists like the one in 
Orlando.
  I don't know for a fact, but I just wonder if the FBI, back when they 
were vetting the Orlando shooter on two separate occasions because 
things he said and did put him on the watch list, if they would have 
been notified immediately when he purchased his firearms. Well, as we 
now know, the FBI investigations were inconclusive and he was taken off 
the watch list. I wonder if the FBI had access to a national security 
letter that would allow them to gain information about the IP addresses 
he had been visiting from his Internet service provider, along with 
email addresses--again, not content because you can't do that without a 
warrant issued by the FISA Court and a showing of probable cause--and 
what he might have been viewing, such as YouTube videos of Anwar al-
Awlaki, who was responsible for radicalizing MAJ Nidal Hasan at Fort 
Hood and others, and the information was sufficient enough that the 
President of the United States authorized the use of a drone in order 
to kill him on the battlefield so he could not kill other innocent 
Americans--well, you get my point. We need to make sure the FBI has 
access to all the information they can legally get their hands on, and 
a good place to start is voting on the McCain-Burr amendment tomorrow 
so the FBI can obtain information about what they are doing on the 
Internet and who they are communicating with, and if it is justified, 
to be able to then go to court and demonstrate probable cause 
sufficient to actually then look at content in order to prevent 
terrorist attacks.
  I want to be clear about one thing. The FBI already has the power to 
review financial records like Western Union transfers and the FBI 
already has the power to review telephone records. They can access 
telephone numbers, not the content of the conversation, again, unless 
there is further authority issued by a court of law, but because of an 
inadvertent omission in the law, the FBI can't readily access the exact 
kind of information ISIS is using to recruit and radicalize violent 
extremists lurking in our midst.
  We have seen how difficult it is to identify these people before they 
kill. Why in the world wouldn't we want to make sure we provide all the 
information under our constitutional laws that could be available to 
law enforcement to identify these people before they kill?
  I introduced a similar proposal to the McCain-Burr amendment a few 
weeks ago in the Judiciary Committee that would address this and 
provide access

[[Page S4395]]

to this counterterrorism information. I am glad our colleagues, the 
senior Senators from Arizona and North Carolina, have now offered this 
amendment to the underlying legislation.
  As the Presiding Officer knows, this provision, or one very similar 
to it, was contained in the Intelligence reauthorization bill that had 
the bipartisan support of everybody on the Intelligence Committee, save 
one.
  This is long overdue. It is bipartisan, and I think our failure to 
act to grant this authority, particularly in the wake of this terrible 
tragedy in Orlando, would be inexcusable. This is something the FBI 
Director, appointed by President Obama, has said he needs. He said this 
is their No. 1 legislative priority. President Obama's administration--
beyond just the FBI Director--supports it. What is stopping us from 
providing this authority?
  The truth is, these threats are at our doorstep. ISIS is using every 
tool it has to spread fear and chaos, and we owe it to those on the 
frontlines of our counterterrorism efforts to get them what they need 
in order to more effectively counter these terrorists' efforts. It is 
our duty to do something about it. Unlike some of the provisions we 
voted on last night that would do nothing to stop people like the 
Orlando shooter, this could actually stop them.
  I am all ears if there are other ideas when it comes to advancing 
commonsense proposals to fight terrorism at home and make our 
communities safer, but this is a good place to start. I hope going 
forward we can do a better job of providing the FBI and law enforcement 
officials the resources they need to keep us safe. This is within our 
grasp, and all we need to do is to take advantage of this opportunity 
and have a strong bipartisan vote to adopt the McCain-Burr amendment 
tomorrow morning.
  I yield the floor.
  Mr. LEAHY. Mr. President, after voting down sensible gun measures 
earlier this week, Republicans want to change the subject. They want to 
resort to scare tactics to divert the attention of the American people. 
Now, they are offering an overbroad proposal that they argue is needed 
to keep this country safe.
  Let's be clear about what we need to stay safe. We need universal 
background checks for firearms purchases. We need to give the FBI the 
authority to deny guns to individuals suspected of terrorism. Senate 
Republicans rejected those sensible measures last night, but we still 
have the chance to give law enforcement real tools to fight terrorism 
and violent crime. We should strengthen our laws to make it easier to 
prosecute firearms traffickers and straw purchasers who put guns in the 
hands of terrorists and criminals. And we need to fund the FBI and the 
Justice Department so they have the resources they need to combat acts 
of terrorism and hate. Those are the elements of the amendment that 
Senators Mikulski, Baldwin, Nelson, and I have filed--and those are 
among the actions that Congress could take to protect this country.
  Instead Republicans are proposing to reduce independent oversight of 
FBI surveillance of Americans' Internet activities and make permanent a 
law that, as of last year, had never been used. And I should note that 
this is the same law that the Republican leadership in the Senate 
allowed to expire just last year.
  In case there is any confusion, I will state it clearly: The McCain 
amendment would not have prevented the Orlando attack.
  The amendment would eliminate the requirement for a court order when 
the FBI wants to obtain detailed information about Americans' Internet 
activities in national security investigations. This could cover Web 
sites Americans have visited; extensive information on who Americans 
communicate with through email, chat, and text messages; and where and 
when Americans log onto the Internet and into social media accounts. 
Over time, this information would provide highly revealing details 
about Americans' personal lives. The government should not be able to 
obtain this information whenever it wants by simply issuing a subpoena.
  Senator Cornyn and others have argued forcefully that we cannot 
prevent people on the terrorist watch list from obtaining firearms 
without due process and judicial review. They say we need an 
independent decisionmaker; yet at the same time, they are proposing to 
remove judicial approval when the FBI wants to find out what Web sites 
Americans are visiting. The FBI already has authority to obtain this 
information--if it obtains a court order under section 215 of the USA 
PATRIOT Act. In an emergency where there is not time to go to court, 
the USA FREEDOM Act allows the FBI to obtain this information before 
getting judicial approval, so this amendment is unnecessary.
  This amendment is opposed by major technology companies and privacy 
groups across the political spectrum, from FreedomWorks to Google to 
the ACLU. I ask unanimous consent that a letter from nearly 40 
organizations and companies opposing this proposal be printed in the 
Record at the conclusion of my remarks.
  The Judiciary Committee also should study this proposal before it 
proceeds. The Judiciary Committee has not held a hearing to examine 
whether this expansion of the NSL statute is necessary or how it would 
affect Americans' privacy and civil liberties.
  Rather than trying to distract us from their opposition to 
commonsense gun measures, Republicans should support actions that will 
actually help protect us, like those in the amendment filed by Senator 
Mikulski, Senator Baldwin, Senator Nelson, and myself. They should 
support emergency FBI funding. They should support funding for the 
civil rights division to help protect the LGBT community, the Muslim 
American community, and the African-American community from hate crimes 
and discrimination. And they should support my proposal to make it 
harder for terrorists and criminals to evade background checks by 
turning to firearms traffickers and straw purchasers. This is a 
provision that I have developed with Senator Collins and that has been 
strongly supported by law enforcement.
  As we saw in San Bernardino, terrorists can acquire assault rifles by 
simply using a friend to purchase the guns for them; yet prosecuting 
such individuals for firearms trafficking has proven to be an extremely 
difficult task. My proposal will fix these laws. It will provide law 
enforcement the tools it needs to deter and prosecute those who traffic 
in firearms, and it will help to close another glaring loophole in our 
gun laws that allows terrorists and criminals to easily acquire 
powerful firearms.
  I urge Senators to oppose the McCain amendment and to support these 
measures that will actually help keep our country safe.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:
                                                     June 6, 2016.
       Dear Senator: The undersigned civil society organizations, 
     companies, and trade associations strongly oppose an 
     expansion of the National Security Letter (NSL) statute, such 
     as the one that was reportedly included in the Senate's 
     Intelligence Authorization Act for Fiscal Year 2017 and the 
     one filed by Senator Cornyn as an amendment to the ECPA 
     reform bill. We would oppose any version of these bills that 
     included such a propsal expanding the government's ability to 
     access private data without a court order.
       This expansion of the NSL statute has been characterized by 
     some government officials as merely fixing a ``typo'' in the 
     law. In reality, however, it would dramatically expand the 
     ability of the FBI to get sensitive information about users' 
     online activities without court oversight. The provision 
     would expand the categories of records, known as Electronic 
     Communication Transactional Records (ECTRs), that the FBI can 
     obtain using administrative subpoenas called NSLs, which do 
     not require probable cause. Under these proposals, ECTRs 
     would include a host of online information, such as IP 
     addresses, routing and transmission information, session 
     data, and more.
       The new categories of information that could be collected 
     using an NSL--and thus without any oversight from a judge--
     would paint an incredibly intimate picture of an individual's 
     life. For example, ECTRs could include a person's browsing 
     history, email metadata, location information, and the exact 
     date and time a person signs in or out of a particular online 
     account. This information could reveal details about a 
     person's political affiliation, medical conditions, religion, 
     substance abuse history, sexual orientation, and, in spite of 
     the exclusion of cell tower information in the Cornyn 
     amendment, even his or her movements throughout the day.
       The civil liberties and human rights concerns associated 
     with such an expansion are compounded by the government's 
     history of

[[Page S4396]]

     abusing NSL authorities. In the past ten years, the FBI has 
     issued over 300,000 NSLs, a vast majority of which included 
     gag orders that prevented companies from disclosing that they 
     received a request for information. An audit by the Office of 
     the Inspector General (IG) at the Department of Justice in 
     2007 found that the FBI illegally used NSLs to collect 
     information that was not permitted by the NSL statutes. In 
     addition, the IG found that data collected pursuant to NSLs 
     was stored indefinitely, used to gain access to private 
     information in cases that were not relevant to an FBI 
     investigation, and that NSLs were used to conduct bulk 
     collection of tens of thousands of records at a time.
       Given the sensitive nature of the information that could be 
     swept up under the proposed expansion, and the documented 
     past abuses of the underlying NSL statute, we urge the Senate 
     to remove this provision from the Intelligence Authorization 
     bill and oppose efforts to include such language in the ECPA 
     reform bill, which has never included the proposed NSL 
     expansion.
           Sincerely,
       Access Now, Advocacy for Principled Action in Government, 
     American Association of Law Libraries, American Civil 
     Liberties Union, American Library Association, American-Arab 
     Anti-Discrimination Committee, Amnesty International USA, 
     Association of Research Libraries, Brennan Center for 
     Justice, Center for Democracy & Technology, Center for 
     Financial Privacy and Human Rights, CompTIA, Computer & 
     Communications Industry Association, Constitutional Alliance, 
     Demand Progress, Electronic Frontier Foundation, Engine.
       Facebook, Fight for the Future, Foursquare, Free Press 
     Action Fund, FreedomWorks, Google, Government Accountability 
     Project, Human Rights Watch, Institute for Policy Innovation, 
     Internet Infrastructure Coalition/I2Coalition, National 
     Association of Criminal Defense Lawyers, New America's Open 
     Technology Institute, OpenTheGovernment.org, R Street, Reform 
     Government Surveillance, Restore the Fourth, Tech Freedom, 
     The Constitution Project, World Privacy Forum, Yahoo.

  The PRESIDING OFFICER. The Senator from Maryland.


                        Mass Shooting in Orlando

  Mr. CARDIN. Mr. President, I take this time to continue the 
discussion as to the tragedy that occurred on June 12 in Orlando, FL. 
The shooting occurred at a popular LGBT club, Pulse. The club owner, 
Barbara Poma, lost her brother to the AIDS epidemic. The club was named 
to remember a pulse that faded from this world far too early. Pulse was 
not just a place to socialize, it was a refuge and a place of 
acceptance and solidarity where members of the Orlando LGBT community 
could be themselves without judgment.
  The fact that an attacker would target this venue, especially during 
Gay Pride Month, is a horrific tragedy and a senseless loss of human 
life. My deepest sympathies are with those killed and injured in this 
terrorist attack, along with their families and loved ones. My thanks 
go out to the first responders who saved lives in the midst of such 
danger.
  This attack, and others like it in recent years, tears at our hearts 
and leaves us angry, frustrated, and confused. We, as a nation, must 
resolve to stop those who wish to do harm to Americans from committing 
and encouraging acts of terror.
  The Orlando shooter apparently subscribed to an extreme system of 
beliefs that led him to carry out this heinous attack. No religion 
condones or encourages such violence and killing. We must reject any 
ideology that leaves room for discrimination and dehumanization to a 
point where someone can commit these types of acts. No one should ever 
fear for their life simply for being themselves or expressing who they 
are as an individual. America's values of tolerance, compassion, 
freedom, and love for thy neighbor must win out over hate, intolerance, 
homophobia, and xenophobia.
  The time for talk is over. We, as a nation, as a community, and as an 
American family, must take actions to change minds, hearts, and, 
finally, change policies. The attack in Orlando was a terror attack and 
a hate crime. We can stop others and save lives by taking immediate 
action.
  I was disappointed we missed opportunities to do that yesterday with 
sensible gun safety amendments. I cosponsored the Murphy amendment, 
which would have created a system of universal background checks for 
individuals trying to buy a gun. The amendment would have ensured that 
all individuals who should be prohibited from buying a firearm are 
listed in the National Instant Criminal Background Check System and 
would require a background check for every firearm sale. We know there 
are loopholes today. Why do we allow those loopholes to continue? It 
should not matter whether you buy a gun at a local gun store or at a 
gun show or on the Internet, you should have to pass a background check 
so we can make sure guns are kept out of the hands of people who should 
never have one. This amendment would have helped keep guns out of the 
hands of convicted felons, domestic abusers, and the seriously mentally 
ill, who have no business buying a gun.

  Studies have shown that nearly half of all current gun sales are made 
by private sellers who are exempt from conducting background checks.
  It makes no sense that felons, fugitives, and others who are legally 
prohibited from having a gun can easily use a loophole to buy a gun.
  Once again, the use of a universal background check will have no 
impact on the legitimate needs of people who are entitled to have a 
weapon, but universal background checks could and would help us keep 
our communities safe by helping us keep weapons out of the hands of 
criminals and those who have serious mental illness and domestic 
abusers. We need to stop their ability to easily be able to obtain a 
weapon.
  Universal background checks are strongly supported by the American 
people. Most background checks can be completed very quickly and do not 
inconvenience a purchaser at all.
  To my colleagues who have reservations about this legislation, let me 
cite the Heller decision. In June 2008 the Supreme Court decided the 
case of District of Columbia v. Heller. The Court held that the Second 
Amendment protects an individual's right to bear arms rather than a 
collective right to possess a firearm. The Court also held that the 
Second Amendment right is not unlimited, and it is not a right to keep 
and carry any weapon whatsoever in any manner and for any purpose.
  Justice Scalia wrote for the Court in that case:

       Nothing in our opinion should be taken to cast doubt on the 
     longstanding prohibitions on the possession of firearms by 
     felons and the mentally ill, or laws forbidding the carrying 
     of firearms in sensitive places such as schools and 
     government buildings, or laws imposing conditions and 
     qualifications on the commercial sale of firearms.

  That was Justice Scalia for the Court.
  Justice Scalia recognized Congress's right to make sure those who are 
not qualified to own a firearm do not get that firearm. We have an 
obligation to make sure that background checks are effective so as to 
keep out of the hands of criminals and those who have serious mental 
illness the opportunity to easily be able to obtain a firearm.
  The legislation pending before us in the Senate is fully consistent 
with the Heller decision. That amendment would have been fully 
consistent with the Heller decision and Justice Scalia's opinion.
  I know we can protect innocent Americans while still protecting the 
constitutional rights of legitimate hunters and existing gun owners. We 
should take that action on behalf of the American people.
  There was a second amendment I cosponsored that unfortunately was 
rejected yesterday--the Feinstein amendment--that would close the 
terror gap. If you are not safe enough to fly on an airplane, you 
shouldn't be able to buy a gun. The Feinstein amendment would give the 
Attorney General the authority to block the sale of guns to known or 
suspected terrorists if the Attorney General has reason to believe the 
weapons would be used in connection with terrorism. The amendment would 
have ensured that anyone who had been subject to a Federal terrorism 
investigation in the past 5 years would have been automatically flagged 
with the existing background check system for further review by the 
Department of Justice.
  Note that under this amendment, being included on a terrorist watch 
list is not by itself a sufficient justification to deny a person the 
right to buy a firearm. The Attorney General may deny that weapon 
transfer only if she determines that the purchaser represents a threat 
to public safety based on a reasonable suspicion that the purchaser is 
engaged or has engaged in conduct related to terrorism. So there is a 
standard there.

[[Page S4397]]

  A recent GAO report concluded that approximately 90 percent of 
individuals who were known or suspected terrorists were able to pass 
background gun checks. This amendment would have closed this loophole 
and would have reduced the risk of a terrorist being able to legally 
acquire a firearm.
  Under current law, individuals who are known or suspected terrorists 
and do not fall into one of the nine prohibited purchaser categories 
can legally purchase a weapon. While the FBI is notified when 
individuals on the terrorist watch list apply for a background check 
through the National Instant Criminal Background Check System, it does 
not have the authority to block the sale.
  The Feinstein amendment contains remedial procedures so that 
individuals get the reason for denial, the right to correct the record, 
and the right to bring action to challenge the denial. In other words, 
there is due process in the Feinstein amendment.
  So I was disappointed that the two amendment chances we had yesterday 
were not approved by the Senate. I think both would have helped in 
making our communities safer.
  Congress has an obligation to act. As I have indicated before, we 
need to act. Inaction is not an option. The President of the United 
States has already acted to the extent he is permitted using his 
Executive authority. Many of our States have acted as well, including 
my own State of Maryland, but we need a national law that applies to 
all 50 States to stop criminals, terrorists, domestic abusers, and 
others who should not get their hands on a gun from simply driving to a 
nearby State with less restrictive gun laws and being able to legally 
acquire a weapon.
  I encourage my colleagues to continue to work on compromise 
legislation on the issue of universal background checks and terror 
watch lists. Congress should also act to ban assault-type weapons, 
which have no legitimate civilian use, and we should ban the sale of 
high-capacity magazines which only increase the level of carnage in a 
mass shooting.
  The time for action is now. We cannot wait.
  Mr. President, with that, I yield the floor.
  The PRESIDING OFFICER. The Senator from West Virginia.

[...]