Statements on Introduced Bills and Joint Resolutions

Floor Speech

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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. 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.

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