[Congressional Record Volume 157, Number 95 (Wednesday, June 29, 2011)]
[Senate]
[Pages S4173-S4174]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
COMBATING MILITARY COUNTERFEITS
Mr. WHITEHOUSE. Madam President, our Nation asks a lot of our troops.
In return, we must give them the best possible equipment to fulfill
their vital missions and come home safely. We have a powerful
obligation to them to ensure the proper performance of weapons systems,
body armor, aircraft parts, and countless other mission-critical
products.
Today, however, America's military faces a significant and growing
threat from counterfeit products entering the military supply chain.
I rise to speak about a bill I have introduced with Senator McCain,
Senator Graham, and Senator Coons: the Combating Military Counterfeits
Act of 2011. This bill will enhance the ability of prosecutors to keep
counterfeit goods out of the military supply chain. In so doing it will
help protect America's Armed Forces from the risk of defective
equipment.
These counterfeit products do not meet military standards. As a
result, they put troops' lives at risk, compromise military readiness,
and cost the country enormous sums in replacement costs.
In the case of microelectronics, counterfeit parts also provide an
avenue for cybersecurity threats to infiltrate military systems,
possibly enabling hackers to track or even disable crucial national
security applications.
With troops from Rhode Island and all over the United States serving
overseas in Iraq and Afghanistan, we cannot accept criminals selling
fake versions of products used by our troops. Unfortunately, however,
this unacceptable threat to troop safety and national security is
growing.
A report by the Government Accountability Office provides examples
that demand stiff criminal punishment. It explains that the Defense
Department found out in testing that what it thought was Kevlar body
armor was in fact nothing of the sort and could not protect our troops
the way proper Kevlar can. Our troops going out on patrol in fake body
armor is simply unacceptable.
In another example, a supplier sold the Defense Department a part
that it falsely claimed was a $7,000 circuit that met the
specifications of a missile guidance system. Military grade chips are
called that for a reason: they are required to withstand extreme
temperature, force, and vibration. Chips that don't meet those
specifications are prone to fail; for example, when a jet is at high
altitude, when a missile is launching, or when a GPS unit is out in the
rugged field. The possible consequences of such equipment failing are
dire.
A January 2010 study by the Commerce Department quoted a Defense
Department official as estimating that counterfeit aircraft parts were
``leading to a 5 to 15 percent annual decrease in weapons system
reliability.''
The Commerce Department study, which surveyed military manufacturers,
contractors, and distributors, reported approximately 2\1/2\ times as
many incidents of counterfeit electronics in 2008 as in 2005. The high
price of military grade products is going to attract more and more
counterfeiters.
On a related matter, one source of the problem has been the often
illegal dumping of U.S. electronic waste in countries such as China.
Business Week reported in 2010 that used computer chips from old
personal computers are fraudulently remarked in China as ``military
grade'' chips and sold to U.S. military suppliers. A bill I introduced
last week, the Responsible Electronics Recycling Act, would help
address that issue by cracking down on the profligate dumping of
electronic waste.
We should also evaluate this combating military counterfeits bill in
the context of the relentless cyber attacks America weathers every day.
The chip might not only be counterfeit, it might be the carrier for
dangerous viruses and malware that may create windows our enemies can
enter to sabotage our military equipment or to steal our military
secrets.
I applaud those of my colleagues who have worked with the Department
of Defense to ensure that it can keep counterfeits out of the supply
chain.
I particularly appreciate the leadership of Chairman Carl Levin and
Ranking Member John McCain of the Armed Services Committee. I am also
pleased that the administration, and particularly its intellectual
property enforcement coordinator, Victoria Espinel, is working hard to
protect our military from counterfeits. I am also pleased that the
National Intellectual Property Rights Coordination Center recently
began Operation Chain Reaction, a new initiative targeting counterfeit
items entering the military supply chain.
I strongly believe that strengthened criminal provisions should be
part of our strategy going forward. As a former U.S. attorney I know
the significant deterrent effect criminal sanctions can provide.
The Department of Justice has a vital role to play in using criminal
investigations and prosecutions to identify and deter trafficking in
counterfeit military goods.
To that end, the administration has endorsed increasing penalties for
trafficking in counterfeit military goods as part of recent
recommendations to Congress for better protecting American intellectual
property. I am glad the administration has recognized the need for
legislation, and I look forward to working with them to see the
necessary changes made.
Our laws currently do not impose any special punishment for
trafficking in counterfeit military goods. 18 U.S.C, section 2320, the
counterfeit trafficking statute, provides heightened penalties for
trafficking and counterfeits that result in bodily injury or death. But
out on the battlefield it is not clear that the part will ever be
recovered, and it is impossible sometimes to tell them the counterfeit
caused the bodily injury or death.
As a result, traffickers in military counterfeits are less likely to
face penalties that reflect the unacceptable
[[Page S4174]]
risk their counterfeits impose on our soldiers, our military readiness,
our cybersecurity, and our national security.
The legislation I am introducing today with Senators McCain, Graham,
and Coons addresses this inadequacy in our laws. I urge my colleagues
to join me in seeing it passed into law soon. Traffickers should pay a
heavy price if they knowingly sell the military a piece of counterfeit
body armor that could fail in combat, a counterfeit missile control
system that could short-circuit at launch, or a counterfeit GPS that
could fail on the battlefield. Our troops deserve Kevlar that is
Kevlar, and military grade chips that are military grade.
By creating an enhanced offense for an individual who traffics in
counterfeits and knows that the counterfeit product either is intended
for military use or is identified as meeting military standards, this
bill will help. It doubles the statutory maximum penalty for such
offenses, and it directs the sentencing commission to update the
sentencing guidelines as appropriate to reflect Congress's intent that
trafficking in counterfeit military items be punished sufficiently to
deter this wrongful endangerment of our servicemembers.
The bill targets only particularly malicious offenders--those who
already are guilty of trafficking in counterfeit goods and know they
are selling military counterfeits.
This approach means the bill will not affect legitimate military
contractors who might be unaware that a counterfeit chip has been
entered into one of their products. It will not apply to makers of
products that unintentionally fall short of military specifications.
This bill is intended to help military suppliers by deterring the
criminals who sell counterfeits to them or to their subcontractors.
Manufacturers, such as the many high-tech innovators in Rhode Island,
will actually benefit from the protection of their intellectual
property.
I am grateful to have the support of the Chamber of Commerce, the
Semiconductor Industry Association, the International Anti-
Counterfeiting Coalition, and others. I look forward to working with
them and other interested stakeholders to make this legislation as
effective as possible at deterring this particularly reprehensible form
of criminal activity.
Let me close by thanking Senator Graham, Senator McCain, and Senator
Coons for joining me in introducing this bill today. As my colleagues
know, Senator McCain and Senator Graham both have long stood out as
champions for our troops. Senator Coons has already become a staunch
defender of our national security and our Nation's intellectual
property.
I very much look forward to working with them and other colleagues on
this important bill.
All of us in the Senate have the privilege of visiting with and
supporting our troops. We all know the sacrifices they make for our
country. We all want to do everything we can to ensure that their
equipment functions properly and that counterfeits do not compromise
our Nation's military readiness or security. Passing the Combating
Military Counterfeits Act of 2011 will be a valuable step toward these
important goals.
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