[Congressional Record Volume 165, Number 124 (Tuesday, July 23, 2019)] [Senate] [Pages S4986-S4993] Encryption Mr. WYDEN. Mr. President, today I rise to rebut the deeply flawed proposal the Attorney General made this morning. This morning, he raised a tired, debunked plan to blow a hole in one of the most important security features protecting the digital lives of the American people. Mr. Barr--once again echoing the views of some on the far, far right--is trying to undermine strong encryption and require government back doors into the personal devices of the American people. ``Encryption'' is a technical term that gets thrown around by people in government who don't want you to use it. The idea, however, is simple: It is using math to encode your information so that the only people who can read it are the ones you want to read it. As is often known, encryption is used every time a credit card is swiped or an online bank account is accessed. It helps protect our kids from predators who would spy on them through their cell phone cameras or surreptitiously track their movements. It keeps our health records, our personal communications, and our other sensitive data secure from hackers. Strong encryption helps protect national security secrets from hackers working for the Russians, the Chinese, the North Koreans, and other hostile governments. I have spent a full decade fighting off horrible plans to undermine strong encryption. My usual argument goes something like this: You can't build a back door only for the good guys, for government officials who are trying to protect people. Once you weaken encryption with a back door, you make it far easier for criminals and hackers and predators to get into your digital life. Then I go through all the reasons the government's plan to build a back door is just about the worst idea since Crystal Pepsi. Today, I want to raise some even more pressing concerns that are new. Many times in the past, I have warned that unnecessary government surveillance holds the potential to be abused, but I have never done what I am doing today. Today, I fear--rather, I expect that if we give the Attorney General and the President the unprecedented power to break encryption across the board and burrow into the most intimate details of Americans' lives, they will abuse those powers. I don't say that lightly. Yet, when I look at the record, the public statements, and the behavior of William Barr and Donald Trump, it is clear to me that you can't make the case for giving them this kind of power. There is too much evidence that they will abuse it. Their record shows they do not feel constrained by the law. They have not been bound by legal or moral precedents. Donald Trump, by his own words, has no ethical compunction--these are his words--about using government power against his political enemies. Never before have I been so certain that an administration in power would knowingly abuse the massive power of government surveillance. It is for that reason that building government back doors into the encrypted communications of the American people is now uniquely dangerous and must be opposed at all costs. These are serious charges that I have made, and I am going to walk through my reasoning. First, I would like to discuss the Attorney General's history when it comes to government surveillance and government power. When this body voted on Mr. Barr's nomination earlier this year, I laid out in great detail his history when it comes to Executive power. Anyone wishing for a full airing of Mr. Barr's lifelong devotion to unbounded Executive power can dial up those remarks of mine on C-SPAN, but I just want to highlight one item again this morning. Mr. Barr testified in October of 2003, and he laid out his ideological position that the President is not restrained when it comes to surveilling people here in the United States--not by laws passed by Congress, not by the Fourth Amendment, no constraints. In that 2003 testimony, Mr. Barr said that the PATRIOT Act didn't go far enough in terms of government surveillance. Even worse, Mr. Barr said that laws going back to the 1970s have no real effect on Presidential power. Mr. Barr said: ``Numerous statutes were passed, such as FISA''--Foreign Intelligence Surveillance Act--``that purported to supplant Presidential discretion with Congressionally crafted schemes whereby judges become the arbiter of national security decisions.'' In one sentence, Mr. Barr just swept 40 years of congressional action and 200 years of constitutional governance out the window. We ought to take him at his word that he has contempt for the Fourth Amendment and critical laws that protect our law-abiding people. [[Page S4989]] It is far more than just words, however, that lead me to this conclusion. It is now public record that William Barr, when he was Attorney General in the 1990s, approved a massive, illegal surveillance program. The inspector general at the Department of Justice revealed this March that William Barr gave the OK to a bulk phone records dragnet at the Drug Enforcement Agency that ran for more than 20 years. The inspector general found that Mr. Barr never even looked to see whether that Drug Enforcement Administration bulk surveillance program was legal. The inspector general called it ``troubling'' because of the disconnect between what the law says and how it was secretly being interpreted and used. The Drug Enforcement Agency program that William Barr approved relied on subpoena power that requires that the records being collected be ``relevant or material'' to an investigation. But Mr. Barr didn't bother to consider whether all of those phone records that were collected in bulk were consistent with the law; he just went ahead and rubberstamped it. The inspector general tends to be polite about outright calling government programs illegal, but even the inspector general pointed out that there are multiple court cases that ``clearly suggested potential challenges to the validity of the DEA's use of this statutory subpoena power in this expansive, non-targeted manner.'' Finally, the inspector general found that the records collected from the program were used outside the Drug Enforcement Agency for investigations that had nothing to do with drugs--a practice the inspector general said ``raised significant legal questions.'' The inspector general goes on to note that Congress was kept almost entirely in the dark. At a time when the American people are hungry for transparency and openness and accountability, the inspector general says Congress was kept in the dark by Mr. Barr about a decades-long, illegal bulk collection program, with the exception of a single secret Intelligence Committee hearing in 2007. Even then, it was obvious the program was illegal. That is why my colleague Senator Feingold and I wrote to the head of National Intelligence pointing out that the subpoena authority the DEA was using was never intended for bulk collection. This was secret law, and it was wrong and dangerous. That is why I wanted to make sure people knew Mr. Barr's history, because this secret, illegal bulk collection program was approved by the current Attorney General. So you have an Attorney General who not only has said he is not constrained by the law, but he has a history of breaking the law. You also have a President who almost every day expresses contempt for any legal or constitutional restraints on his powers. That attitude applies to surveillance too. In 2016, in response to Russian hacking of his opponents, Donald Trump said: ``I wish I had that power.'' So Donald Trump--a President who Attorney General Barr thinks can do no wrong--is the one who is driving this. This is the President who Attorney General Barr thinks is above the law. This is the President whom the Attorney General will, in effect, cover for at virtually every turn, as he did when he repeatedly lied about the contents of the Mueller report. Let me close by talking about why this matters to William Barr's efforts now to break into Americans' encrypted communications. The argument that the government needs to weaken encryption has always been based on the promise that the government will never use the back door without a court-ordered warrant. Yet Mr. Barr, in his own words and actions, has demonstrated repeatedly, when it comes to surveillance, that the laws don't matter, that the courts don't matter, and that even the Constitution doesn't matter. The only thing that matters is what he and the President feel like doing. So I would ask my colleagues who are here, what Senators in their right minds would give these men the authority to break into the phone of every single American? Imagine what kind of information they could gather on their political opponents. Imagine if a Member of Congress were secretly gay and were desperate to hide the fact. Despite campaigning on family values, imagine if a Member of Congress had cheated on his wife. Would a man like the individual I have described here use that information against them? Would Donald Trump use it to secure their loyalty in the face of his own wrongdoing? I understand that the world is a frightening place, and anybody who serves on the Select Committee on Intelligence would share that view. Some government agencies will always advocate for greater powers to surveil Americans and intrude into their digital lives. It is important to remember, as I touched on in the beginning, that the banning of encryption in America will not stop the bad guys from using encryption, and it will not ban basic math algorithms elsewhere in the world. It will only leave Americans less secure against foreign hackers, and--I regret having to say this--it will leave Americans less secure against intrusions by an administration that has shown it is willing to support lawless measures. I yield the floor.