[Congressional Record Volume 161, Number 157 (Monday, October 26, 2015)]
[Senate]
[Pages S7486-S7488]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
Cybersecurity Information Sharing Bill
Mr. WYDEN. Mr. President, tomorrow we will be turning to the cyber
security bill, which the Presiding Officer is familiar with as a member
of the committee, and I wish to speak about my amendment No. 2621 to
that legislation. I also intend to address the amendments of our
colleagues Senator Franken, Senator Heller, and Senator Coons because I
believe all four of these amendments seek to achieve the same goal, and
that goal--the goal of all four of these amendments--is to reduce the
unnecessary sharing of Americans' private and personal information.
The Senate has had a robust debate on the cyber security bill over
the past week, and I think it is fair to say that Senators agree on a
fair number of points. For example, the sponsors of the legislation
have now acknowledged that the cyber security bill we will shortly vote
on would not have prevented sophisticated cyber attacks, such as the
Target and Home Depot hacks, and it would not have prevented the theft
of millions of personnel records at the Office of Personnel Management.
As for my part, I agree that sharing information about cyber security
threats is generally a constructive idea. If private companies identify
samples of malicious code or information that identifies foreign
hackers, I would absolutely encourage them to share that information.
However, I think companies should also take reasonable steps--and I
underline ``reasonable steps''--to remove unrelated personal
information about their customers before sharing that data with the
government. It is important to understand that this legislation simply
does not require companies to do that, and Senators can see that for
themselves. As Senators can see for themselves, on page 17 of the bill,
companies are allowed to conduct only a cursory review of the
information they provide and would only be required to remove data that
they know is personal information unrelated to cyber security.
When it comes to customers' personal information, the message behind
this bill is, when in doubt, hand it over. Once that data is shared--
and this is not widely known--the Department of Homeland Security would
be required to send it on to a broad range of government agencies, from
the NSA to the FBI.
The amendment I have offered to the legislation we will vote on
tomorrow would give companies a real responsibility for safeguarding
their customers' information. It would say that in order for a company
to receive liability protection before a company shares data with the
government, it has to make efforts to the extent feasible to remove any
personal information that is not necessary to identify or describe a
cyber security threat. In my view, that would give this legislation a
straightforward standard that could give consumers real confidence that
their privacy is actually being protected.
Let me give an example of how this might work in practice. Imagine
that a health insurance company finds out that millions of its
customers' records have been stolen. If that company has any evidence
about who the hackers were or how they stole this information, of
course it makes sense to share that information with the government.
But the company shouldn't simply say ``Well, here you go'' and hand
millions of its customers' financial and medical records over for
distribution to a broad array of government agencies, such as the FBI
and the NSA.
The records of the victims of a hack should not be treated the same
way information about the hacker is treated. Companies should be
required to make reasonable efforts to remove personal information that
is not needed for cyber security before they hand that information over
to the government. That, in short, is what my amendment seeks to
achieve.
The sponsors of the legislation have argued that my amendment would
somehow hold companies to an almost impossible standard. I say
respectfully that the language of this amendment is quite measured.
Companies are required to remove unrelated personal information and the
legislation specifically states ``to the extent feasible.'' The
language certainly doesn't require perfection; it creates a reasonable
and flexible approach for companies to make a real effort to remove
unrelated personal information about their customers instead of simply
performing the sort of cursory review that would be permitted under the
current language of the bill.
A quick reading through the list of the pending amendments to the
bill will make it clear that I am not the only Member of this body who
is concerned about the unnecessary sharing of personal information.
Our colleague from Nevada, Senator Heller, has a similar amendment
that would seek to create a stronger requirement for companies to
remove personal information.
Our colleague from Delaware, Senator Coons, has crafted a very
constructive amendment that would strengthen the requirement for review
by the Department of Homeland Security. His amendment would create a
stronger obligation for the Homeland Security Department to filter out
unnecessary personal information before passing cyber security data on
to other parts of our government.
Senator Franken has drafted a strong amendment that would clarify the
bill's definition of ``cyber security threat information'' to ensure
that it focuses on information about real threats.
It is important to remember that reducing unnecessary sharing of
personal information will make any information sharing program more
effective and easier to focus on the genuine threats involved.
Finally, our colleague from Arizona, Senator Flake, has drafted an
amendment that would require the Congress to come back and review this
information sharing approach after 6 years to evaluate how it has
worked in practice and whether privacy protections ought to be
strengthened.
I have cited amendments by Democrats and Republicans. The Presiding
Officer knows that I feel strongly about working in a bipartisan way
whenever I possibly can, and that is why I thought it was important to
mention, as we go through these amendments, that all of these
amendments I have described have sought to ensure this body would make
it clear that cyber security is a very real problem. Cyber security, in
terms of tackling it, which involves information sharing, can be very
constructive, and we ought to try to find ways to do it. Each of these
amendments is designed to make sure that when Americans hear about
cyber security legislation--my colleague and I have discussed it--we
don't have millions of Americans walking away and saying: They are
sharing all of this unnecessary personal and unrelated information; I
[[Page S7487]]
guess it is another one of those surveillance kind of bills.
We don't want that here. We want bills that are bipartisan, that deal
with very real threats--and certainly cyber security is one of them--
but we also want to make sure the rights of innocent people are
protected. With these amendments, we do that by ensuring that we have
more than a cursory approach to filtering out unrelated and personal
information.
So it is my judgment that each of these amendments would be
significant improvements to the bill, and I hope my colleagues will
support all of them, as well as an amendment by our colleague from
Vermont Senator Leahy that would remove an unnecessary modification of
the Freedom of Information Act.
Let me close by saying it is not just Senators--and I have listed
both Democrats and Republicans tonight--it is not just Democrats and
Republicans in this body who have raised concerns about this bill's
inadequate privacy protection; privacy advocacy groups from the
American Library Association to the Oregon Technology Institute have
come out against the bill. America's leading technology companies--
companies that have to have expertise in both cyber security and
protecting the data of their customers--have opposed it as well.
Companies such as Apple, Dropbox, Twitter, Salesforce, Reddit, and Yelp
have all said that they oppose the legislation because it does not
include adequate privacy protections. The trade association that
represents Google and Amazon, Facebook, Microsoft, Yahoo!, Netflix,
eBay, and PayPal said: ``CISA's prescribed mechanism for sharing of
cyber threat information does not sufficiently protect users'
privacy.''
Now, reflect if we might for a minute on what that means. These are
America's leading technology companies. They advantage America because
they are the envy of the world for their innovation and their way of
serving customers and businesses not just in this country but around
the world. These companies have millions and millions of customers and
have spoken out publicly against the bill, in its current form, before
these amendments are considered. They sure know a lot about the
importance of protecting both cyber security and individual privacy.
The reason I say that is they have to manage that challenge each and
every day.
Customer confidence is the lifeblood of these companies, and the only
way to ensure customer confidence is to convince customers that if they
use a product, their information is going to be protected from both
malicious hackers and from unnecessary collection by our government.
Last Thursday, a coalition of America's leading consumer groups
basically joined those major technology companies in announcing their
opposition to the bill. They endorsed the pending consumer privacy
amendments, including the amendment I will offer, No. 2621.
In conclusion, I hope colleagues will listen to what these technology
groups and companies have said, and I hope our colleagues will support
the amendments that I and others, both Democrats and Republicans, will
be offering tomorrow. Let's work together to produce a bill that does a
better job of dealing with both real cyber threats and the liberties of
the American people.
Mr. President, I yield the floor.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. McCAIN. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. LEAHY. Mr. President, today, we will vote on the nomination of
Lawrence Vilardo to be a Federal district judge in the Western District
of New York in Buffalo. He was first nominated in February, and his
nomination was voted out of the Judiciary Committee by unanimous voice
vote over 5 months ago on May 6. There is no reason why this highly
qualified nominee should have waited so long for a vote. Despite having
one of the busiest caseloads in the country, with more criminal cases
than Washington, DC, Boston, or Cleveland, there is not a single active
Federal judge in that district. The court has been staying afloat only
through the voluntary efforts of two judges on senior status who are
hearing cases in their retirement. It is about time that we confirmed
Mr. Vilardo to this vacancy.
Next week marks the 11th month that Republicans have been in the
majority in the Senate. During that time, only nine judicial nominees
have been confirmed. When Senate Democrats were in the majority during
the last 2 years of the Bush Presidency, we had already confirmed 34
judges by this same time. The glacial pace at which Republicans are
currently confirming judicial nominees is an inexcusable failure to
carry out the Senate's constitutional duty of providing advice and
consent. It also has real and dire consequences for hard-working
Americans who seek justice but instead encounter lengthy delays in the
Federal court system due to empty courthouses and overburdened courts.
We can and should take action right now to alleviate this problem by
holding confirmation votes on the rest of the 13 judicial nominees
pending on the floor. A number of these pending nominees have the
support of their Republican home State Senators; yet they continue to
languish on the calendar without a vote.
If Republican obstruction continues and if home State Senators cannot
persuade the majority leader to schedule a vote for their nominees
soon, then it is unlikely that even highly qualified nominees with
Republican support will be confirmed by the end of the year. These are
nominees that members of the majority leader's own party want
confirmed, including those from Tennessee and Pennsylvania. And last
week, we had a hearing for two Iowa nominees, who I expect to be
reported out of the Judiciary Committee soon as well. None of these
nominees are likely to be confirmed by the end of the year if Senate
Republicans continue at this historically slow pace.
No Senator has raised any objections to the judicial nominees pending
on the floor. Every single one was reported out of the Judiciary
Committee by unanimous voice vote. Each has the backing of their home
State Senators, including Republican Senators. These nominees are
outstanding, accomplished legal professionals who are ready to serve in
our justice system. They have devoted time away from work and their
families to go through the rigorous nominations process. More than half
of the pending Federal district and circuit court nominees would fill
vacancies deemed to be ``judicial emergencies'' by the nonpartisan
Administrative Office of the U.S. Courts. Instead of working to ensure
that all Americans have access to our Federal courts, Senate
Republicans continue to obstruct President Obama's judicial nominees in
a misguided effort to score political points against the President.
The number of empty judgeships has increased by more than 50 percent
since Republicans took over the majority. Their obstruction is
reversing the hard-earned progress Senate Democrats made last Congress
to drastically reduce the number of judicial vacancies. Making matters
worse, the number of ``judicial emergency'' vacancies since Senate
Republicans took the majority has risen by 158 percent. These vacancies
impact communities across America, and it is doing the most harm to
States with at least one Republican Senator. Of the 66 current
vacancies that exist, 49 of them--or more than 70 percent--are in
States with at least one Republican Senator.
One of those vacancies is an emergency vacancy on the U.S. Court of
Appeals for the Third Circuit in Pennsylvania. Judge Luis Felipe
Restrepo is nominated to fill the vacancy, and he has strong bipartisan
support from his home State Senators, Senator Toomey and Senator Casey.
At Judge Restrepo's hearing, Senator Toomey stated that ``there is no
question [Judge Restrepo] is a very well qualified candidate to serve
on the Third Circuit'' and underscored the fact that he recommended
that the President nominate Judge Restrepo. Once confirmed, Judge
Restrepo will be the first Hispanic judge from Pennsylvania to ever
serve on this court and only the second Hispanic judge to serve on the
Third Circuit.
There is absolutely no reason to delay a vote on Judge Restrepo's
confirmation; yet his nomination has been
[[Page S7488]]
pending on the floor for over 3 months. Since he was first nominated,
Judge Restrepo's nomination has been pending for a staggering 348 days.
The national president for the Hispanic National Bar Association, which
strongly supports Judge Restrepo's nomination, wrote last week in the
Huffington Post about the inexcusable delay in his confirmation. I ask
unanimous consent that a copy of this article be printed in the Record
at the conclusion of my remarks.
Contrast Senate Republican's treatment of Judge Restrepo with
President Bush's nominee to the third circuit, Judge Thomas Hardiman,
who was nominated in the last 2 years of the Bush Presidency. Judge
Hardiman was confirmed in nearly half the time Judge Restrepo has been
waiting, taking only 183 days from nomination to his confirmation.
Furthermore, it took only 7 days for Judge Hardiman to receive a
confirmation vote once he was reported out of the Senate Judiciary
Committee. Judge Restrepo has been pending on the floor for 109 days--
15 times longer than Judge Hardiman. I hope the Republican Senator from
Pennsylvania will implore his leadership to bring this highly qualified
nominee up for a vote without further delay. Let us then turn to votes
on the rest of the 12 pending judicial nominees without further delay.
Shortly we will begin voting on Lawrence Vilardo to fill a judicial
vacancy in the Federal District Court for the Western District of New
York. Since 1986, he has practiced as a named partner at the law firm
of Connors & Vilardo, L.L.P., in Buffalo, NY. He previously practiced
at Damon & Morey, in Buffalo, NY, from 1981 to 1986. The ABA standing
committee on the Federal Judiciary unanimously rated Mr. Vilardo ``well
qualified'' to serve on the U.S. District Court for the Western
District of New York, its highest rating. He has the support of his two
home State Senators, Senator Schumer and Senator Gillibrand. He was
voted out of the Judiciary Committee by unanimous voice vote on May 6,
2015. I will vote to support his nomination.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From the Huffington Post, Oct. 21, 2015]
The Current Senate Gridlock Is Hurting the Diversity of Our Justice
System
(By Robert T. Maldonado)
Born in Medellin, Colombia and raised in the United States,
Judge L. Felipe Restrepo's life reads like a textbook case of
the American Dream. With a bachelor's from the University of
Pennsylvania and a law degree from Tulane, he set off on a
successful career in criminal defense and civil rights
litigation, eventually serving as a magistrate judge for 7
years.
But Judge Restrepo's story of immigrant success seems to be
on hold for the moment. That's because he's been waiting
since November 2014, when President Barack Obama appointed
him to serve on the Third Circuit Court of Appeals, to be
confirmed as an appeals court judge.
After a thorough due diligence process, the Hispanic
National Bar Association (HNBA) endorsed Judge Restrepo in
March 2015, but we didn't stop there. When we saw the lack of
progress on his nomination, the HNBA successfully pushed for
the Senate Judiciary Committee to hold his nomination
hearing, and continues to push for a confirmation vote on the
floor of the Senate.
Unfortunately, Judge Restrepo's predicament isn't unique.
Two other HNBA-endorsed judicial candidates are stuck in the
political gridlock, and a total of 30 judicial nominees (two-
thirds of them women or minorities) await Senate confirmation
with little idea of when that will happen. According to the
judicial watchdog group Alliance for Justice, the Senate has
confirmed only 8 judges in 2015, the slowest pace in over 60
years. Almost half of the vacancies on the federal bench have
been declared ``judicial emergencies,'' where the remaining
judges are overworked trying to make a dent into the backlog
of cases, sometimes in excess of 600 filings per judge.
The backlogs are having a real effect on the people and
businesses seeking recourse through the court system. As one
California district court judge put it:
``Over the years I've received several letters from people
indicating, `Even if I win this case now, my business has
failed because of the delay. How is this justice?' And the
simple answer, which I cannot give them, is this: It is not
justice. We know it.''
Our state of justice is suffering and so is our economy.
The states where the backlogs and vacancies are the worst
(including Texas, New York, and Florida) happen to be where
large Latino communities reside. Given that President Obama
has nominated more female and minority candidates to the
federal bench than any other President, the delay in judicial
confirmations is also a delay in increased diversity, and
thus the quality of justice, in our nation's court system.
This manufactured crisis is the doing of Senate leaders who
prefer to score political points rather than fulfill their
constitutional obligations. Those same political leaders need
to know that by dragging their feet on these nominations they
are not only hurting the nominees but also the integrity and
diversity of our federal court system. Nominees like Judge
Restrepo have entire communities backing them in their
professional journeys, and come election time, they won't
hesitate to register their disapproval.
For their sake and the sake of our justice system, let's
end this judicial vacancy crisis.
Mr. McCAIN. Mr. President, I ask unanimous consent that all time be
yielded back.
The PRESIDING OFFICER. Without objection, it is so ordered.
The question is, Will the Senate advise and consent to the Vilardo
nomination?
Mr. McCAIN. I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There appears to be a sufficient second.
The clerk will call the roll.
The legislative clerk called the roll.
Mr. CORNYN. The following Senators are necessarily absent: the
Senator from Missouri (Mr. Blunt), the Senator from Tennessee (Mr.
Corker), the Senator from Arkansas (Mr. Cotton), the Senator from Idaho
(Mr. Crapo), the Senator from Texas (Mr. Cruz), the Senator from South
Carolina (Mr. Graham), the Senator from Kentucky (Mr. Paul), the
Senator from Florida (Mr. Rubio), the Senator from Pennsylvania (Mr.
Toomey), and the Senator from Louisiana (Mr. Vitter).
Mr. DURBIN. I announce that the Senator from Massachusetts (Mr.
Markey) and the Senator from Vermont (Mr. Sanders) are necessarily
absent.
The PRESIDING OFFICER (Mrs. Ernst). Are there any other Senators in
the Chamber desiring to vote?
The result was announced--yeas 88, nays 0, as follows:
[Rollcall Vote No. 284 Ex.]
YEAS--88
Alexander
Ayotte
Baldwin
Barrasso
Bennet
Blumenthal
Booker
Boozman
Boxer
Brown
Burr
Cantwell
Capito
Cardin
Carper
Casey
Cassidy
Coats
Cochran
Collins
Coons
Cornyn
Daines
Donnelly
Durbin
Enzi
Ernst
Feinstein
Fischer
Flake
Franken
Gardner
Gillibrand
Grassley
Hatch
Heinrich
Heitkamp
Heller
Hirono
Hoeven
Inhofe
Isakson
Johnson
Kaine
King
Kirk
Klobuchar
Lankford
Leahy
Lee
Manchin
McCain
McCaskill
McConnell
Menendez
Merkley
Mikulski
Moran
Murkowski
Murphy
Murray
Nelson
Perdue
Peters
Portman
Reed
Reid
Risch
Roberts
Rounds
Sasse
Schatz
Schumer
Scott
Sessions
Shaheen
Shelby
Stabenow
Sullivan
Tester
Thune
Tillis
Udall
Warner
Warren
Whitehouse
Wicker
Wyden
NOT VOTING--12
Blunt
Corker
Cotton
Crapo
Cruz
Graham
Markey
Paul
Rubio
Sanders
Toomey
Vitter
The nomination was confirmed.
The PRESIDING OFFICER. Under the previous order, the motion to
reconsider is considered made and laid upon the table and the President
will be immediately notified of the Senate's action.
____________________