[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.