JUDICARY: Ranking Member Jerrold Nadler’s Floor Statement in Opposition to the FISA Amendments and Reauthorization Act of 2017

I rise in strong opposition to S. 139, the “FISA Amendments and Reauthorization Act of 2017,” which reauthorizes Section 702 of FISA for six years without enacting adequate protections for our privacy.

Supporters of this measure want to convince us a new, incredibly narrow warrant provision actually constitutes reform.  It does not.

Our right to privacy does not begin when the Department of Justice has a fully formed criminal case against us. 

Nor does it begin when prosecutors enter our emails and text messages into evidence against us in court.

The Constitution guarantees far more than this.  Our right to privacy protects us when the government first makes its decision to search our private communications for information it might find useful. 

S. 139 falls well short of this basic guarantee.  We therefore cannot—we must not—support this bill.

Make no mistake: S. 139 is not a “compromise.”  The Judiciary Committee, the technology companies, civil society, and other critical stakeholders were shut out of this conversation long ago.

S. 139 does not include a meaningful warrant requirement.  The rule in this bill does not apply to most searches of the Section 702 database.  It does not apply to a query for any information that “could mitigate a threat,” an exception that threatens to swallow the entire rule. 

And as a result, S. 139 allows the FBI unfettered access to this information, for purely domestic cases, without a warrant. 

And what does that mean, in the era of Jeff Sessions and Donald Trump? 

It means that absolutely nothing stops the Department of Justice from trolling the database for evidence that you use marijuana, or failed to pay your taxes, or may be in the country unlawfully, or possess a firearm that you should not have. 

None of these cases have anything to do with the core purposes of Section 702—and all of them should require a warrant based on individualized suspicion and probable cause.

I agree with Chairman Goodlatte that Section 702 should be reauthorized.  I understand its importance to the intelligence agencies.

But neither of us should support this bill—which pretends at reform while codifying some of the worst practices of the intelligence community.

When we came to Congress, each of us took an oath to defend and protect the Constitution of the United States.  I ask that each of my colleagues honor that oath today—and that we work together to defeat this bill, and to bring the right set of reforms to the floor without delay.

I thank the Speaker and I reserve the balance of my time.

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