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Mr. President, I know sometimes that when people hear us engage in these debates, they think we don't like each other and we can't work together; that we are so polarized, we are dysfunctional. Actually, these Senators are my friends in addition to being colleagues. Let me just explain how I think their concerns are misplaced.
First of all, we all care about, on the spectrum of privacy to security, how that is dialed in. As the Presiding Officer knows, as the former attorney general of Alaska, we always try to strike the right balance between individual privacy and safety and security and law enforcement, and sometimes we have differences of opinion as to where exactly on that spectrum that ought to be struck, but the fundamental problem with the requests that have been made today is, Federal Rule Of Criminal Procedure 41 has already been the subject of a lengthy 3-year process with a lot of thoughtful input, public hearings, and deliberation.
As the Presiding Officer knows, the courts have the inherent power to write their own rules of procedure, and that is what this is, part of the Federal Rules of Criminal Procedure. What happens is a pretty challenging process when we want to change a Federal rule of criminal procedure. We have to get it approved by the Rules Advisory Committee. It is made up of judges, law professors, and practicing lawyers. Then it has to be approved by the Judicial Conference. Then, as in this case, they have to be endorsed by the U.S. Supreme Court, which is Federal Rule of Criminal Procedure 41, which happened on May 1, 2016.
If there was any basis for the claim that this is somehow a hacking of personal information without due process of law or without adequate consideration, I just--I think the process by which the Supreme Court has set up, through the Rules Advisory Committee and through the Judicial Conference, dispels any concerns that the objections that were raised were not adequately considered.
I am also told, Senator Graham from South Carolina chaired a subcommittee hearing of the Senate Judiciary Committee--I believe it was last spring--on this very issue. So there has been some effort in the Congress to do oversight and to look into this, although perhaps it didn't get the sort of attention that it has gotten now.
The biggest, most important point to me is that for everybody who cares about civil liberties and for everybody who cares about the personal right of privacy we all have in our homes and the expectation of privacy we have against intrusion by the government without due process, this still requires the government to come forward and do what it always has to do when it seeks a search warrant under the Fourth Amendment. You still have to go before a judge--an impartial magistrate--you still have to show probable cause that a crime has been committed, and the defendant can still challenge the lawfulness of the search. The defendant always reserves that right to challenge the lawfulness of the search. I believe all of these constitutional protections, all of these procedural protections, all the concerns about lack of adequate deliberation can be dispelled by the simple facts.
There is a challenge when cyber criminals use the Internet and social media to prey on innocent children, to traffic in human beings, to buy and sell drugs, and there has to be a way for law enforcement--for the Federal Government--to get a search warrant approved by a judge based on the showing of probable cause to be able to get that evidence so the law can be enforced and these cyber criminals can be prosecuted. That is what we are talking about. All this rule 41 does is creates a circumstance where if the criminal is using an anonymizer, or some way to scramble the IP address--the Internet Protocol address of the computer they are operating from--then this rule of procedure allows the U.S. attorney, the Justice Department, to go to any court that will then require probable cause, that will then allow the defendant to challenge that search warrant--but to provide a means by which you can go to court and get a search warrant and investigate the facts and, if a crime has been committed, to make sure that person is prosecuted under the letter of the law.
I appreciate the concerns my colleagues have expressed, that somehow we have gotten the balance between security and privacy wrong, but I believe that as a result of the process by which the Rules Advisory Committee, the Judicial Conference, and the Supreme Court have approved this rule after 3 years of deliberation, including public hearings, scholarly input by academicians, practicing lawyers, law professors and the like, I think that ought to allay their concerns that somehow this is an unthought-through or hasty rule that is going to have unintended consequences. I think the fundamental protection we all have under the Fourth Amendment of the Constitution against unreasonable searches and seizures and the requirement that the government come to court in front of a judge and show probable cause that a crime has been committed, and that even once the search warrant is issued, that the defendant can challenge the lawfulness of the search--all of that ought to allay the concerns of my colleagues that somehow we have gotten that balance between privacy and security right because I think this does strike an appropriate balance.
Those are the reasons I felt compelled to object to the unanimous consent requests, and I appreciate the courtesy of each of my colleagues.
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