Commerce, Justice, Science, and Related Agencies Appropriations Act,

Floor Speech

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Mr. LEE. Mr. President, whenever government acts, it does so inevitably, unavoidably necessarily at the expense of individual freedom, at the expense of individual liberty and autonomy. This doesn't mean every act by government is bad--quite the contrary.

We need government. We need it to protect us from those who would undermine our liberty, those who would interfere with it, those who would harm us personally, whether physically or in some other way. But just as it doesn't mean that every act by government is bad, we should also not be too quick to leap to any conclusion that any and every act of government is good.

We have to balance liberty, privacy, autonomy with our corresponding needs for security and physical protection. These things need not be deemed irreconcilable with one another. They can exist in the same universe. In fact, when they are properly balanced, our privacy and our liberty become far from incompatible with our physical security, far from at odds with our need for protection. They can become part of the same whole. In other words, in this respect, our privacy is not at odds with our security. Our privacy is in fact part of our security.

To be truly secure means there are limits as to what the government can do to you. It means there are limits as to what information the government can obtain. There are limits as to how the government may go about getting information about you. There are limits as to what the government can do to you in depriving you of any of your fundamental rights.

We are here this week, as we had been last week, in the wake of a tragedy, a horrible tragedy in Orlando, one in which 49 people were killed. Forty-nine people lost their lives at the hands of Omar Mateen, an individual who had pledged allegiance to ISIS. This is the worst terrorist attack we have seen on U.S. soil since that tragic day on September 11, 2001.

I do want to make clear that pretending this attack was simply a crime of gun violence would be an exercise in willful denial and in political theater. Ignoring it altogether is also not something we can or should do, but it is important to make clear, even when--and I would argue especially when--a tragedy like this prompts Congress or any legislative body to act.

It is in those moments we have to be very careful of how we act. We have to remember there is this tension. We have to remember, especially in those moments when we are feeling the anxiety of an attack, feeling the anxiety of some tragedy, that we have to be very careful to make sure the rights of our fellow Americans are not undermined as we try, in our zeal, perhaps with the best intentions, to make sure we do what we can to protect ourselves.

We have been addressing a couple of provisions this week. One we voted on earlier today is a proposal brought forward from the senior Senator from Arizona, an individual for whom I have great respect. Nonetheless, his proposal is one that troubles me. His proposal is one that would have given law enforcement officers, law enforcement agencies the power to access Americans' Internet browsing history and email metadata. These are things that can be analyzed to reveal the most intimate details of a person's life, the most intimate details of how a person thinks, a person's thought processes, and to do so, moreover, without a warrant, without probable cause, without any kind of judicial review by a Federal court or any other court, for that matter, is a problem.

This interferes with some of our most fundamental rights, and I believe it is incompatible at least with the spirit, if not also the letter, of the Fourth Amendment to the U.S. Constitution, which provides that in order for the government to gain access to your papers, your person, your residence, it has to do so in a particular way. For example, if it wants to get a warrant to search through your papers, it has to go to court, and it has to establish what is called probable cause. It has to show evidence demonstrating probable cause that a crime has been committed and a reason to look at a particular thing in a particular place. It can't simply say: Trust us. We have a good reason. A government agency or a group of government agents can't simply say: Trust us. We are doing the right thing here. We have your security interests at heart. No, they have to go to a judge--somebody who is in a different branch of government. They have to show evidence they need it; that they need it based on evidence demonstrating probable cause of a crime, showing some kind of a connection between what they want to search and the crime.

This was understood by the founding generation. The founding generation may not have been familiar with the Internet. In fact, it didn't exist. It wouldn't be invented for a couple of centuries after that, but they were very familiar with these same concepts. They were very familiar with the need for privacy, the need to restrain government, and the need to make sure people don't live in constant fear that the government is going to start rifling through their personal effects without some reason, without probable cause. Nor were they unaware of the fact that tragedies would happen.

The Founding Fathers fully understood that tragedies arise. They understood that violence erupts from time to time and that people engage in lawless behavior from time to time that threatens not only the lives of individual citizens but also threatens to undermine the very foundations of our society. Yet, notwithstanding this well- developed grasp they had of the existence of tragedy and the risk that people could do harm, notwithstanding the fact that they themselves had been revolutionaries just a few years earlier, and notwithstanding that many of these people who had a hand in the drafting of our Constitution and drafting and ratification of the Bill of Rights had themselves been revolutionaries and had themselves witnessed and in some cases even been a part of the violence that propelled the American Revolution, they understood it was imperative that we constrain the power of government relative to the liberty interest protected within the Bill of Rights, relative for our purposes here to the zone of interest of the Fourth Amendment. They understood that, and they understood it well.

They also understood that if someone had papers in their home, those papers would be protected by the Fourth Amendment regardless of whether the papers had been written by the person residing in that home. They likewise understood the possibility that in some instances the papers might not even be kept at home; they might be kept somewhere else. But they understood that there were zones in which people had a legitimate and reasonable expectation of privacy, and it is in those areas where things need to be protected, regardless of who wrote the papers in question or where they might be located. If they were in an area where there was a reasonable expectation of privacy, the government has to follow certain procedures.

Here is why I worry about the measure offered by the Senator from Arizona. It is because this would get at the very privacy interest that is supposed to be protected by the Fourth Amendment. If passed, this would give law enforcement agencies the authority to access your Internet browsing history and email metadata, meaning data about whom you emailed, who emailed you, and when the transmissions occurred, without probable cause, without a warrant, without any review by a Federal court and without any review by any court.

This is a problem, and it is a problem because, as I think most Americans can appreciate--certainly most Americans outside Washington, DC, can appreciate--the papers referenced in the Fourth Amendment would absolutely have to include electronic papers, such as records regarding your browsing history. Your browsing history is just like papers you might collect in your home for your own reading, and regardless of whether you had authored the papers in question, they wouldn't lose their protection simply because someone else had authored them. The fact that you had them in your home and the fact that you had obviously been reviewing them by virtue of their location in your home says a lot, perhaps, about what your interests are. We understand that your interests are not necessarily the government's business simply because someone in the government arbitrarily decides that is going to be the case.

There is another measure that we will be reviewing and that we expect to vote on later this week, and it is an amendment that has been proposed by another one of my esteemed colleagues, the senior Senator from Maine. This amendment would prevent anyone appearing on a particular list, such as the no-fly list or selectee list--these lists are maintained for the purpose of trying to track those who should perhaps not be allowed to board an airplane or, in the case of the selectee list, individuals who have been determined to be candidates for additional screening at airports before boarding a plane--from purchasing firearms, denying Americans their Second Amendment rights based on a mere suspicion that the FBI might have information which shows that the person in question is engaged in terrorist activity.

There are a couple of things that worry me about this, notwithstanding the good intentions underlying it. This one implicates not only the Second Amendment, which protects Americans and their right to bear arms, but it also implicates the Fifth Amendment, which guarantees that we won't be deprived of life, liberty, or property without due process of law. If this provision, as it is now written and as I have read it in its current formation, were to become law, it would, as I understand it, allow the government to take away your Second Amendment rights--anyone's Second Amendment rights--based on a mere suspicion and not based on probable cause, although I don't believe that in and of itself would be enough either.

It would allow that right to be taken away, and it would do so without any opportunity for the citizen affected by this action to challenge this decision prior to the deprivation. It would, to be sure, set up a procedure whereby someone could go into court and challenge the action taken by the government, but, as I read the proposal, the government would end up winning. It would end up winning based on this same reasonable suspicion standard.

Let me explain what that means. Reasonable suspicion refers to the relatively low threshold of legal justification required before a police officer may initiate a stop--what we call a noncustodial stop or what lawyers sometimes refer to as a Terry stop--to engage in a conversation with a citizen. Before a police officer pulls you over-- for example, if you are driving in your car, the police officer has to have a reasonable, articulable suspicion that a law has been violated, and that reasonable, articulable suspicion can't be just based on an unparticularized suspicion or a hunch but must be based on some type of objective observation indicative of a possible violation of the law. But it is a relatively low threshold, and for that reason--when reasonable suspicion exists and therefore justifies a brief noncustodial stop--that stop may continue only for as long as it takes for the officer to either confirm or refute the initial basis for the suspicion, and usually that means not very long unless, of course, during the stop they learn more information which may lead to probable cause.

That leads us to probable cause. What does that do? Well, probable cause is there. Probable cause is the standard used. It is a higher standard and requires more evidence, more of a showing, and more of a likelihood that some kind of a violation of the law has occurred.

I mentioned probable cause a moment ago as being the standard used to determine whether the government can get a warrant. It is also a standard used in deciding whether the police have authority to undertake an arrest, but it is not a permanent thing. Those persons who are convicted and in custody have the right to a trial. At the end of that trial, they have a right to have a jury make a determination about guilt. The jury is supposed to make that determination on the basis of a standard that says that based on the evidence, they can conclude beyond a reasonable doubt that a crime has been committed.

It seems odd that we would allow a court to take away a fundamental constitutional right without any review prior to that constitutional deprivation and thereafter purport to allow a challenge to that action by the government but say that the government will prevail if the government can show reasonable suspicion on the part of the person whose due process rights have been deprived.

Again, we have to get back to the fact that we have very good intentions that are animating the legislative proposals we have been reviewing. We have an understandable reaction to these tragic deaths that have occurred in Orlando, FL. Yet even in those circumstances--and I would add especially in those circumstances--we have to be especially vigilant and not less vigilant about protecting the rights of each individual American citizen. Those rights are fundamental. They are not to be tinkered with.

The dignity of the human soul is at the core of our constitutional Republic. It is the very reason it is so important that we have to balance the government's action and the interest that we pursue in the name of security with liberty and privacy. The two don't have to be at odds with each other; they can be in conflict. And in the end I believe that our security is not at odds with our privacy. Properly understood, our privacy is part of our security. In fact, we cannot be truly secure unless we are secure from unlawful, unwarranted, and unjust actions by the government, and this is why we can't be too quick to jump. This is why we can't be too eager to expand government authority without analyzing the basic constitutional and fundamental liberties that are at stake.

I have been inspired by the example of an Englishman named John Wilkes, who was a member of Parliament. John Wilkes found himself living through a very real deprivation of liberty and a very real intrusion into his privacy. He found himself at the receiving end of a general warrant issued by the administration of King George III. His offense was criticizing the administration of King George III in a publication called the North Briton. The North Briton 45 criticized the King and the King's ministers, and for that, John Wilkes had his house aggressively searched. It was effectively ransacked by officers who were searching for something, and they were doing so pursuant to a general warrant, a warrant that basically said: Those involved in the publication of North Briton 45 have engaged in illegal activity. Go find the people responsible for this and search any and all places and things that might contain relevant information regarding this offense. There was no particular area that was required under that warrant.

Well, this was incompatible with the rights of Englishmen at the time, and so John Wilkes fought the King's officials in court. He eventually won not only his freedom, but he also secured a civil judgment against the King and was awarded substantial money damages.

As a result of this fight, John Wilkes became a hero throughout England and in America at the time. The number 45 associated with North Briton 45, the offending publication, became synonymous with the name of John Wilkes, and both the name of John Wilkes and the number 45 became synonymous with the cause of liberty on both sides of the Atlantic because of the fact that truth resonates with people, particularly with those people who believe in freedom. People on both sides of the Atlantic understood that John Wilkes's cause was a just cause and that he should be congratulated for this. It was the example of John Wilkes that was still well known at the time of the American Revolution. It was still fresh in the minds of the American people at the time the Constitution was drafted in 1787 and took effect a couple of years later and by the time the Fourth Amendment was ratified and amended after that.

These early Americans and these patriots on the other side of the Atlantic understood this very same principle: that our liberty and our privacy on the one hand are not inevitably incompatible or irreconcilably at odds with our security and our protection. The two can be balanced, and that balance has been struck. That balance was struck more than two centuries ago. It was struck and put in place in our Constitution.

Our Constitution does contain these protections, at least three of which are relevant to our discussions here with the Second Amendment and the Fourth Amendment and the Fifth Amendment. We cannot sidestep them just because something bad is happening. In fact, it is especially when something bad has happened that we realize we are not the first generation of Americans to experience bad things, to experience violence. We are not the first generation of Americans who have understood that when we give government too much power in those circumstances, other bad things will happen.

We can protect ourselves and at the same time protect our liberty. We can do both. The Constitution requires both.

So I say to those who think this is a fool's errand, we can, in fact, do these things. We can, we must, and together I hope and I pray that we will.

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