[Congressional Record Volume 162, Number 165 (Thursday, November 17, 2016)]
[Senate]
[Pages S6486-S6488]
STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
By Mr. COONS (for himself, Mr. Daines, Mr. Wyden, Mr. Lee, Mr.
Franken, Ms. Baldwin, and Mr. Paul):
S. 3475. A bill to delay the amendments to rule 41 of the Federal
Rules of Criminal Procedure; to the Committee on the Judiciary.
Mr. COONS. Mr. President, I rise to address a pending change to
privacy protection contained in the Federal Rules of Civil Procedure.
But before I proceed to the details, the sometimes wonky details of
what we actually do here legislatively, let me just start by speaking
to concerns I have heard. As early as this morning, on my train ride
down from Wilmington, DE, in the halls here in Congress, by email,
text, and by phone from friends from my State of Delaware and all over
the country, folks are concerned about what this election means and
about whether we can work together in ways that defend the fundamental
liberties on which this country rests.
I wish to start by remarking that Senator Wyden and I are on the
floor today talking about a bill that we have crafted and we are
introducing in partnership with other Senators--with Senators Mike Lee,
Steve Daines, and Al Franken who represent, literally, the farthest
edges of this Chamber in terms of ideology. If you look at the top five
issues on which we agree, we agree on relatively little. But as a group
of Republicans and Democrats, we have agreed to work together to
restrain an attempt--frankly, initiated by the current Department of
Justice--to modify the Federal Rules of Criminal Procedure in a way
that we are concerned implicates or invades our Fourth Amendment
constitutional protections. I hope those who watch what happens on this
floor find encouragement in the fact that Republicans and Democrats
before this election's outcome had come together to craft this bill,
this approach, and to move forward in a way that shows the bipartisan
commitment to protecting our constitutional liberties remains alive and
well in this Chamber.
Let me briefly address what it is I am talking about because I think
it has serious and far-reaching implications for the privacy of
ordinary Americans. These rules, the Federal Rules of Criminal
Procedure, govern the procedures for investigation and prosecution of
individuals within our American criminal justice system, and it is
essential that these rules strike a careful balance, giving law
enforcement the tools they need to investigate crimes and keep us safe
while also protecting Americans' constitutional rights to freedom from
unreasonable searches and seizures, our rights to privacy.
Earlier this year on April 30, the Supreme Court approved changes to
the Federal rules that would shift this balance, potentially greatly
expanding the scope of search warrants. Neither the Senate nor the
House held a hearing or a markup in the relevant committees to make
these changes. The body of government closest to the people has failed
to weigh in at all on an issue that immediately and directly impacts
[[Page S6487]]
our constituents' rights. If we in the Congress do nothing, the
proposed rule changes will go into effect December 1 of this year.
While the proposed changes are not necessarily good or bad, they are
serious, and they present significant policy concerns that I think
warrant careful consideration and debate. I wish to quickly outline two
of them today.
One change would allow any magistrate judge in any district in
America to issue a warrant for information outside that magistrate's
district if the location of the information that law enforcement is
seeking has been concealed. This change ensures investigators have a
jurisdiction to go to where they can seek a warrant, particularly for
cyber information that is concealed and where it is impossible to know
the district in which the attack originated.
Another change would allow a judge to issue a warrant for information
on devices located in five or more judicial districts. While the
Department of Justice argues this change will improve the efficiency of
investigations by eliminating the need to seek multiple warrants to
reach all the devices that are suspected of being the same cyber
criminal network, this represents a sweeping change to how search
warrants are traditionally reviewed, issued, and executed.
I think all Americans should want criminal investigations to proceed
quickly and thoroughly, but I am concerned these changes could remove
important judicial safeguards by allowing one judge--one judge--to
decide on a search that would give the government the ability to search
and possibly alter hundreds or even thousands of computers owned by
innocent Americans across the country.
These changes would also incentivize investigators to forum shop--to
seek a multijurisdictional warrant from the official most likely to
approve a sweeping search. So, in October, a bipartisan group of 23
Members of Congress wrote Attorney General Lynch to request more
information about these changes to Rule XLI, and we are still waiting
for a response. With so many complex questions unanswered, it is
important the Department of Justice and this body have time to
carefully answer these questions. So today we are introducing
legislation that gives Congress that time, and Senators Daines, Lee,
and Franken have joined Senators Wyden and me to delay these changes
until July 1 of next year.
We all want to ensure the American people are kept safe from cyber
hackers and online criminal activity. We all want law enforcement to
have the tools they need to keep us safe, but our desire for safety and
our desire for an efficient criminal justice system should not require
us to forfeit our fundamental constitutional rights to privacy and
protection from searches and seizures.
Let me now yield the floor to my friend and colleague Senator Wyden,
who has been such a tireless, effective, and engaged advocate on
exactly these issues.
Mr. President, I yield the floor.
The PRESIDING OFFICER. The Senator from Oregon.
Mr. WYDEN. Mr. President, I thank Senator Coons for his work, his
very thoughtful statement, and I particularly appreciate his
emphasizing the fact that this effort began long before November 8.
This has been a bipartisan effort for some time, with Democrats and
Republicans across the political spectrum saying: Look, the country
wants policies that make us safer and protect our liberties, and if we
are not careful, we are going to get policies that don't do much of
either and in fact set us back.
I very much appreciate what my colleague is doing. It is a simple
proposition that Senator Coons advances today; that is, when you are
talking about a monumental change--one judge with one warrant making it
possible to hack thousands of computers--this is not just a modest
alteration in the way business is done in Washington, DC, this is an
enormous public policy shift. The idea the Congress--without even one
hearing, without even one debate, without even one opportunity for
Members to weigh in formally, in my view just defies common sense and
our responsibilities. I very much appreciate what my colleague is
doing.
Suffice it to say, this was important before the election, but right
now, when we have scores of Americans wondering about the very future
of the core constitutional protections they rely on, the bill Senator
Coons is offering makes it clear those basic values and the sanctity of
the courts and due process and the rule of law are not going to be
values that are going to be set aside because of what happened on
November 8, and there are going to be Democrats and Republicans working
together in the Senate.
I remember when Senator Paul, who has made very valuable
contributions on this and other issues, began to discuss some of these
matters with me on the Select Committee on Intelligence. We, in effect,
said: It is almost like we have a Ben Franklin caucus around here. Ben
Franklin famously said: Anyone who gives up their liberty to have
security doesn't deserve either. It seems to me my colleague is picking
up on those principles.
Mr. President and colleagues, I will be brief. The Coons bill
addresses the cold fact that without urgent action this month, the
government is going to have unprecedented authority to hack into the
personal phones, computers, tablets, or whatever devices Americans use.
This would be a massive expansion of government hacking and
surveillance powers, a vast expansion of Executive power. To do it
without even a congressional debate would be just a monumental mistake.
What ought to be done, as Senator Coons has suggested, is allowing the
Congress and the American people to have a chance to weigh in on the
very substantial constitutional questions surrounding government
hacking.
I sit on the Senate Select Committee on Intelligence. I think having
joined before 9/11, I am now, I believe, the longest serving member in
history, along with Senator Feinstein, and we can tell you there is no
question it is a dangerous world. Go into the Select Committee on
Intelligence, and it becomes pretty clear there are a lot of people out
there who do not wish the people of our great country well. It is
obvious, as my colleague from Delaware has noted, that law enforcement
faces very substantial challenges because technology is constantly
evolving. So we want to make it clear, those of us who are supporting
the Coons bill, that we don't take a backseat to anyone in giving our
agents the tools they need to demonstrate that security and liberty are
not mutually exclusive. We can have both.
That is why I wrote section 102 of the Freedom Act, which actually
expanded the government's ability to move when there was an emergency.
We have had a lot of discussions about our ability to protect our
country in the event of an emergency situation. That was a provision
that I added and I felt particularly strongly about because I wanted to
amplify on what my colleague has said; that we are interested in both
liberty and security and in coming up with policies that are
compatible.
What we have seen, and why the Coons review is so important, is that
too often government agencies have cast too wide a net and swept up
information from millions of Americans instead of focusing on the real
threats--the criminals, the terrorists, the hackers. Our point with
respect to this review bill is that our job consists of more than just
having a ``trust us'' policy from the Justice Department. Our job is to
ask the tough questions.
My late father was a journalist. That is what he said. Nobody wants
to ask the tough questions. It takes more time and it makes people
uncomfortable, but that is what we are supposed to do, and particularly
right now, when so many Americans are concerned about the threats to
their liberty and the security of our personal information. What
Senator Coons is talking about this morning is a more important check
on the executive branch than we have had to debate in the past. That is
why my colleague's work is so timely this morning.
This change would also effectively--if it were to go through in its
current form, Rule 41--turn innocent victims of computer attacks into
the victims of additional government hacking. Again, this was alarming
before November 8, but now we need to consider the prospect of an
administration led by someone who openly said he wants the power to
hack his political opponents exhibited by the Russians.
[[Page S6488]]
It is troubling how little the Congress knows about how the
government currently uses its hacking authority and what it plans to do
with expanded powers under Rule 41. Is it going to clean all the
botnets in the world, like the one that recently attacked the Internet
backbone company? If that is the case, what is the software going to
look like? This kind of good-guy hacking is risky, incredibly risky,
even when you have individuals with the best of motivations in your
corner.
As Senator Coons indicated, we put together a letter late in October,
before the election. This is a theme Members are going to hear. Before
the election, many of these concerns were raised, and we said to
Attorney General Lynch that we have some basic questions, such as: How
does the government intend to prevent forum shopping by prosecutors
seeking court approval to hack into Americans' devices? How is the
government going to prevent collateral damage to innocent Americans'
devices of electronic data when it remotely searches devices such as
smartphones or medical devices?
What the latest numbers indicate is that a major source of cyber
attacks are our wonderful medical facilities. The questions we asked in
that October 27 letter speak to that. We want to know whether the
government intends to use its new authority to search and ``clean''
American computers? How is the government going to maintain a chain of
custody when searching or removing evidence from a device? How is the
government going to notify Americans who are the subject of remote
government searches?
I am very troubled by the language in the current proposal, which
suggests the notice process will be very different than what Americans
have traditionally thought about in kind of the physical world with
respect to notice.
The Coons bill is important business because we have not yet, our
bipartisan group of 23, gotten answers to these questions. We are going
to keep trying to learn more about why it might or might not be
necessary for the government to have the authority.
I will wrap up this discussion with Senator Coons--which I thank him
for leading--by way of saying that I have issued warnings before on the
floor and have seen what happens when those warnings aren't heeded. I
just want to say this morning that I believe if the Senate fails to
stand up for our constituents now and do what Senator Coons is talking
about, which is our job--vigorous oversight, asking the hard questions,
getting the facts about new technological questions that are evolving--
I believe there are going to be problems with Rule 41.
I believe there are going to be problems at hospitals, at power
grids, at major American institutions and that if we do nothing, except
what Congress does best--which is nothing--and let this go through, I
think our constituents are going to come back when there are problems,
and they are going to say to each of us: What were you thinking? Why
did you vote to allow policies that would permit hacking in this
fashion?
Colleagues are going to say: Gee, we didn't vote at all.
They are going to say: You didn't vote at all? You must have had some
meetings.
Well, we didn't have any meetings. We didn't have any debates. We
didn't have any discussion.
Then they are going to say: You allowed mass hacking by just kind of
dropping the ball and saying you have other stuff to do?
I think the American people are going to react very badly if that is,
in fact, what happens.
So I commend Senator Coons. He consistently comes to the floor and
appeals across the aisle. I so appreciate it. I hope we will see action
on the Senator's very thoughtful bill. I am proud to be a cosponsor.
I yield the floor.
The PRESIDING OFFICER. The Senator from Montana.
Mr. DAINES. Mr. President, as someone who spent over a decade in the
private tech sector, I know firsthand the challenges our country faces
when it comes to cyber criminals. Technology has made it easier than
ever for bad actors to steal identities, distribute malware, and commit
a whole host of other crimes, all from behind the computer screen. Law
enforcement is facing tremendous challenges in tracking and stopping
these criminals.
The fact is, our law enforcement policies need to be updated to
reflect the reality of the 21st century, but these policy changes need
to be made through a process that is transparent, effective, and one
that protects our civil liberties.
The changes to rule XLI of the Federal Rules of Criminal Procedure
would allow the government to hack an unlimited number of Americans'
computers--including innocent victims' computers--with a single
warrant. This rule change was approved behind closed doors at the
Department of Justice. Fundamental changes to the way we allow law
enforcement to execute searches need to be made through a process that
is fully transparent to the American people. We cannot give the Federal
Government a blank check to infringe upon our civil liberties.
If Congress does not act, this rule change will automatically go into
effect December 1. This bill simply delays the rule change. It is a
delay which will allow Congress to consider new law enforcement tools
through a process they deserve. I urge my colleagues to join my
colleagues in delaying this rule.
Mr. President, I yield the floor.
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