Wyden Calls on Senate to Reform Mass Surveillance, Protect Americans’ Rights and Reject Rudd to lead NSA
Watch a video of Wyden deliver his remarks here
As prepared for delivery
Yesterday I rose to explain my opposition to the nomination of Joshua Rudd to be director of the National Security Agency and to lead U.S. Cyber Command. During his confirmation hearing, General Rudd failed to demonstrate a bare minimum understanding of the constitutional constraints on NSA activities. His responses to questions about privacy rights and transparency were deeply troubling. He would not commit to the NSA’s past policy of not purchasing and using extremely sensitive location data on Americans. And he wouldn’t rule out secretly violating public policies and guardrails on NSA activities.
While I admire his many years of military service, he does not have a background in national signals intelligence activities or cyber operations that would qualify him for the job. General Rudd is certainly not the first unqualified nominee put forward by this Administration. In fact, there are currently no qualified, Senate-confirmed officials in charge of federal cybersecurity. This country faces serious cybersecurity threats. This is a five alarm fire, yet the President keeps nominating officials to key cybersecurity roles who have less knowledge of the topic than an undergraduate computer science major.
General Rudd is the wrong person for this position and I will oppose this nomination. But if the Senate confirms General Rudd, despite his lack of familiarity with basic constitutional principles, it is all the more important that we pass legislation to protect against surveillance abuses.
So today, I want to take this opportunity to talk about why the government’s surveillance authorities are dangerously broad and how Congress can protect the privacy of Americans and provide for the security of the country.
I’m going to briefly discuss three issues that will be coming before senators in the next three weeks: 1) section 702 of the Foreign Intelligence Surveillance Act, 2) surveillance of Americans by ICE, and 3) the dangerous ways that artificial intelligence can be used to surveil American citizens.
As most of my colleagues know, there is a section of the Foreign Intelligence Surveillance Act –Section 702 – that expires in a little more than a month. Congress will soon be debating its reauthorization. Now I’ve been doing this a long time, so I know how this always goes. Opponents of reforming Section 702 don’t want a real debate where Members can decide for themselves which reform amendments to support. So what always happens is that a lousy reauthorization bill magically shows up a few days before the authorization expires and Members are told that there’s no time to do anything other than pass that bill and that if they vote for any amendments, the program will die and terrible things will happen and it will be all their fault.
Don’t buy into that. It’s a disservice to your constituents and to the constitutional responsibilities of this body. The Senate can have a debate. The Senate can consider amendments on their merit. And one more point that I will return to later – Senators should not accept secret interpretations of the legislation they are voting on. The country needs to have an open debate about the surveillance authorities that directly affect the privacy and constitutional rights of Americans, a debate that doesn’t exclude the American people.
Section 702
First, let’s lay some groundwork and briefly explain this important law, section 702 of the Foreign Intelligence Surveillance Act. Section 702 authorizes a warrantless surveillance program. The FISA Court approves the overall program, but it does not review the individual targets. Picking targets is entirely up to the government. Targets do not have to be suspected terrorists or spies – anyone the government believes possesses “foreign intelligence information” – is fair game. The targets are supposed to be foreigners, but there are a lot of them. The most recent public data was for 2024, when there were more than 291,000 targets, which is more than triple what it was 10 years before. Some of these targets are going to be talking to Americans and those Americans’ communications are going to be collected by the government. In many cases these will be law-abiding Americans having perfectly legitimate conversations. Journalists, foreign aid workers, people with family overseas, all could have their communications swept up in this surveillance merely because they talked to someone outside of this country.
We don’t know exactly how many Americans’ communications are swept up by what the government calls “incidental collection” because the government has refused to tell us, but it is surely large and it is definitely increasing. So the question Congress needs to consider is how to target foreign threats while protecting the rights of Americans.
Ben Franklin said that those who would sacrifice liberty for security will lose both and deserve neither. But smart policies can get you both.
With that principle in mind, the best way to protect the rights of Americans is to ensure that the government can’t conduct searches for Americans’ private conversations in all that Section 702 data without a warrant. And smart policies should include certain exceptions to the warrant requirement and that the law should allow for warrantless searches in cases of emergencies. But, as a general matter, the government shouldn’t be allowed to comb through all that collection for Americans’ communications without court oversight.
For years, there has been jaw-dropping abuse of these searches, especially by the FBI. Some internal administrative changes were made as a result, and, two years ago, when Congress last reauthorized Section 702, opponents of reform made a big deal about those changes. But let me give you one example of how those internal changes, and the 2024 reauthorization bill, fell far short.
There’s a category of searches that are considered especially sensitive. They include searches for American elected officials, presidential appointees, governors, political candidates, American political organizations and the people who lead them, as well as media organizations and journalists. So what did the last reauthorization bill do to ensure that the government wasn’t abusing its authority by combing through all those communications to look for American journalists, governors, and U.S. Senators? The so-called big reform was to require the approval of the Deputy FBI Director for these sensitive searches.
Until two months ago, the Deputy FBI Director was Dan Bongino. As most of my colleagues know, Mr. Bongino is a longtime conspiracy theorist who has frequently called for specious investigations of his political opponents. This is the man whom the President and the U.S. Senate put in charge of these incredibly sensitive searches. And Bongino’s replacement as Deputy Director, Andrew Bailey, is a highly partisan election denier who recently directed a raid on a Georgia election office in an effort to justify Donald Trump’s conspiracy theories. I don’t know about my colleagues, but this so-called reform makes me feel worse, not better.
But it’s even worse than it looks. The FBI has refused to even keep track of all of the sensitive searches the Deputy Director has considered. The Inspector General urged the FBI to just put this information into a simple spreadsheet and they refused to do it. That is how much the FBI does not want oversight.
There are a lot of other reforms desperately needed to Section 702. Later this week, I will be introducing bipartisan, bicameral legislation to enact critical reforms to government surveillance, including to Section 702. I won’t go through all the reforms today. But I do want to point to a new provision of Section 702 that urgently needs to be repealed.
Two years ago, during the last reauthorization debacle, something really bad happened. Over in the House, existing surveillance law was changed so that the government could force anyone with “access” to communications to secretly collect those communications for the government. As I pointed out at the time, that could mean anyone installing or repairing a cable box, or anyone responsible for a wifi router. It was a jaw-dropping expansion of authorities that could end up forcing countless ordinary Americans to secretly help the government spy on their fellow citizens.
When the provision was introduced, the Biden Administration knew they had a problem. This was such a dramatic and disturbing expansion of Section 702 authorities that the Biden Justice Department had to promise that it would only use these authorities in certain narrow circumstances. My colleague from Virginia, who I deeply respect, acknowledged that the law, as written, is flawed, and he vowed to fix this overbroad provision at the earliest opportunity.
Unfortunately, it has not been fixed yet.
The Biden administration refused to tell the public when it would use this dangerous, incredibly broad provision. And the Trump Administration certainly isn’t providing any details either. So Congress isn’t having a real, informed debate about this staggering provision and whether this vast and dangerous expansion of surveillance authorities is justified. I can tell you my view – this expansion of the government’s authority is not justified, even if it were narrowed to the circumstances the Biden administration described in secret. I believe the provision should be repealed in its entirety.
But here’s the other thing – whatever secret promise the Biden Administration made about using these vast, unchecked authorities with restraint, the current administration clearly isn’t going to feel bound by that promise. So whatever the previous administration intended to accomplish with that provision, there is absolutely nothing preventing the current administration from conscripting those cable repair and tech support men and women to secretly spy on Americans.
The past fifteen years have shown that, unless the Congress can have an open debate about surveillance authorities, the laws that are passed cannot be assumed to have the support of the American people. And that is fundamentally undemocratic. And, right now, the government is relying on secret law with regard to Section 702 of FISA. I’ve already mentioned the provision that was stuck into the last reauthorization bill, that could allow the government to force all sorts of people to spy on their fellow citizens. I have explained the details of how the Biden Administration chose to interpret it, and how the Trump Administration will interpret it, are a big secret. Americans have the right to be confused and angry that this is how the government and Congress choose to do business. There’s another example of secret law related to Section 702, one that directly affects the privacy rights of Americans. For years, I have asked various administrations to declassify this matter. Thus far they have all refused, although I am still waiting for a response from DNI Gabbard. I strongly believe that this matter can and should be declassified and that Congress needs to debate it openly before Section 702 is reauthorized. In fact, when it is eventually declassified, the American people will be stunned that it took so long and that Congress has been debating this authority with insufficient information.
I want to explain why our coalition is attaching all these other reforms to a Section 702 reauthorization bill. The reason is that, no matter how concerned the public is about abusive surveillance activities, trying to address this problem with a piecemeal approach, pushing one specific reform bill after another through Congress is nearly impossible. So a comprehensive approach that attaches these reforms to legislation reauthorizing Section 702 is the most effective way to deal with these problems. So let me stress – if you are concerned about ICE and CBP and how they are collecting information on Americans, even as they terrorize our towns and cities, supporting our surveillance reform legislation is the way to do something about it.
For example, our bipartisan reform bill takes on an issue that I have been working on for years but which has received a lot of attention lately – the government’s purchase of private information on Americans from sleazy data brokers. Both ICE and CBP have purchased and used Americans’ location data, highly sensitive information that can reveal what medical clinics you go to, what protests you attend, and which friends and family you are seeing. The agencies have made various arguments to justify collecting these records, including the false assertion that all these Americans were consenting to their location data being collected.
I want to emphasize that the government in these cases bought records of millions of Americans’ movements without any warrant or court oversight whatsoever. If the FBI wants to wiretap just one person’s phone, or to obtain a week’s worth of location information about where that person went from a phone company, the agency would need to go to a judge and justify that surveillance. That’s what the Constitution requires. But if the government wants to buy that very same location information about millions of people, the government maintains that it doesn’t need anything but a credit card.
In 2023, it was forced to shut down a program to purchase Americans’ location data due to scrutiny from the Inspector General and Congress. But, last year, there were public reports that it has resumed this dangerous practice, and ICE is currently stonewalling Congressional oversight about it.
Location data is not the only sensitive information on Americans that the government is purchasing without a warrant. Web browsing information – what websites Americans visit – is obviously extremely private. Just imagine the government looking over your shoulder every second you are using your phone. It’s almost equivalent to spying on someone’s thoughts. That’s what happens when the government gets together with sleazy data brokers. And it is not just ICE. The Pentagon, the IRS, Customs and Border Protection, the FBI, and the Secret Service have all purchased Americans’ location information or web browsing information.
The government’s purchases of all this private information would be concerning enough. But now we need to contend with how artificial intelligence will be used on all those records. Artificial intelligence tools are designed to comb through enormous data sets, finding patterns and identifying behaviors of interest to the government. A few years ago, Americans may have believed that their personal information would be overlooked in an ocean of data, but now AI will be looking at everyone. I’ve been warning for nearly a decade that data available for purchase from companies is just as sensitive as information the government collects directly. Creating AI profiles of Americans based on that data represents a chilling expansion of mass surveillance that should not be allowed.
As my colleagues are aware, the Trump administration decided to single the company Anthropic out for punishment because the company did not want its artificial intelligence tool used for mass surveillance of Americans. In explaining its policy, Anthropic’s CEO said that, if the government’s purchase of Americans’ location, web browsing and other sensitive data is currently legal, it is “only because the law has not yet caught up with the rapidly growing capabilities of AI.”
That, in a nutshell, is the problem our bipartisan legislation will fix: update the law to current realities, and stop the government from buying data on Americans from sleazy data brokers. It needs to be addressed in a Section 702 reauthorization bill which Congress will actually consider. Because, if legislators don’t seize this opportunity, technology will just get further and further ahead of the law and Americans will rightly have little faith that Congress is interested in protecting their privacy.
And now we are considering confirming a nominee to be the Director of the NSA who refused to answer whether the government needs a warrant to spy on people in the United States. That same nominee would not commit to maintaining the NSA’s policy of not purchasing Americans’ location data without a warrant. He wouldn’t commit to telling the American people if the NSA violates the policies and guardrails successive administrations have made public. He wouldn’t even promise to tell the Senate Intelligence Committee.
I’m urging my colleagues to oppose this nomination. But regardless, I am urging that the issues related to privacy and the rule of law raised by this nomination be addressed in comprehensive surveillance reform legislation. Our bipartisan, bicameral bill, the Government Surveillance Reform Act, will be introduced shortly, and I ask my colleagues to support it.
A web version of this release is here.