[Congressional Record Volume 162, Number 165 (Thursday, November 17, 2016)]
[Senate]
[Pages S6486-S6488]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. COONS (for himself, Mr. Daines, Mr. Wyden, Mr. Lee, Mr. 
        Franken, Ms. Baldwin, and Mr. Paul):
  S. 3475. A bill to delay the amendments to rule 41 of the Federal 
Rules of Criminal Procedure; to the Committee on the Judiciary.
  Mr. COONS. Mr. President, I rise to address a pending change to 
privacy protection contained in the Federal Rules of Civil Procedure. 
But before I proceed to the details, the sometimes wonky details of 
what we actually do here legislatively, let me just start by speaking 
to concerns I have heard. As early as this morning, on my train ride 
down from Wilmington, DE, in the halls here in Congress, by email, 
text, and by phone from friends from my State of Delaware and all over 
the country, folks are concerned about what this election means and 
about whether we can work together in ways that defend the fundamental 
liberties on which this country rests.
  I wish to start by remarking that Senator Wyden and I are on the 
floor today talking about a bill that we have crafted and we are 
introducing in partnership with other Senators--with Senators Mike Lee, 
Steve Daines, and Al Franken who represent, literally, the farthest 
edges of this Chamber in terms of ideology. If you look at the top five 
issues on which we agree, we agree on relatively little. But as a group 
of Republicans and Democrats, we have agreed to work together to 
restrain an attempt--frankly, initiated by the current Department of 
Justice--to modify the Federal Rules of Criminal Procedure in a way 
that we are concerned implicates or invades our Fourth Amendment 
constitutional protections. I hope those who watch what happens on this 
floor find encouragement in the fact that Republicans and Democrats 
before this election's outcome had come together to craft this bill, 
this approach, and to move forward in a way that shows the bipartisan 
commitment to protecting our constitutional liberties remains alive and 
well in this Chamber.
  Let me briefly address what it is I am talking about because I think 
it has serious and far-reaching implications for the privacy of 
ordinary Americans. These rules, the Federal Rules of Criminal 
Procedure, govern the procedures for investigation and prosecution of 
individuals within our American criminal justice system, and it is 
essential that these rules strike a careful balance, giving law 
enforcement the tools they need to investigate crimes and keep us safe 
while also protecting Americans' constitutional rights to freedom from 
unreasonable searches and seizures, our rights to privacy.
  Earlier this year on April 30, the Supreme Court approved changes to 
the Federal rules that would shift this balance, potentially greatly 
expanding the scope of search warrants. Neither the Senate nor the 
House held a hearing or a markup in the relevant committees to make 
these changes. The body of government closest to the people has failed 
to weigh in at all on an issue that immediately and directly impacts

[[Page S6487]]

our constituents' rights. If we in the Congress do nothing, the 
proposed rule changes will go into effect December 1 of this year.
  While the proposed changes are not necessarily good or bad, they are 
serious, and they present significant policy concerns that I think 
warrant careful consideration and debate. I wish to quickly outline two 
of them today.
  One change would allow any magistrate judge in any district in 
America to issue a warrant for information outside that magistrate's 
district if the location of the information that law enforcement is 
seeking has been concealed. This change ensures investigators have a 
jurisdiction to go to where they can seek a warrant, particularly for 
cyber information that is concealed and where it is impossible to know 
the district in which the attack originated.
  Another change would allow a judge to issue a warrant for information 
on devices located in five or more judicial districts. While the 
Department of Justice argues this change will improve the efficiency of 
investigations by eliminating the need to seek multiple warrants to 
reach all the devices that are suspected of being the same cyber 
criminal network, this represents a sweeping change to how search 
warrants are traditionally reviewed, issued, and executed.
  I think all Americans should want criminal investigations to proceed 
quickly and thoroughly, but I am concerned these changes could remove 
important judicial safeguards by allowing one judge--one judge--to 
decide on a search that would give the government the ability to search 
and possibly alter hundreds or even thousands of computers owned by 
innocent Americans across the country.
  These changes would also incentivize investigators to forum shop--to 
seek a multijurisdictional warrant from the official most likely to 
approve a sweeping search. So, in October, a bipartisan group of 23 
Members of Congress wrote Attorney General Lynch to request more 
information about these changes to Rule XLI, and we are still waiting 
for a response. With so many complex questions unanswered, it is 
important the Department of Justice and this body have time to 
carefully answer these questions. So today we are introducing 
legislation that gives Congress that time, and Senators Daines, Lee, 
and Franken have joined Senators Wyden and me to delay these changes 
until July 1 of next year.
  We all want to ensure the American people are kept safe from cyber 
hackers and online criminal activity. We all want law enforcement to 
have the tools they need to keep us safe, but our desire for safety and 
our desire for an efficient criminal justice system should not require 
us to forfeit our fundamental constitutional rights to privacy and 
protection from searches and seizures.
  Let me now yield the floor to my friend and colleague Senator Wyden, 
who has been such a tireless, effective, and engaged advocate on 
exactly these issues.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Oregon.
  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.

[[Page S6488]]

  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.
  The PRESIDING OFFICER. The Senator from Montana.
  Mr. DAINES. Mr. President, as someone who spent over a decade in the 
private tech sector, I know firsthand the challenges our country faces 
when it comes to cyber criminals. Technology has made it easier than 
ever for bad actors to steal identities, distribute malware, and commit 
a whole host of other crimes, all from behind the computer screen. Law 
enforcement is facing tremendous challenges in tracking and stopping 
these criminals.
  The fact is, our law enforcement policies need to be updated to 
reflect the reality of the 21st century, but these policy changes need 
to be made through a process that is transparent, effective, and one 
that protects our civil liberties.
  The changes to rule XLI of the Federal Rules of Criminal Procedure 
would allow the government to hack an unlimited number of Americans' 
computers--including innocent victims' computers--with a single 
warrant. This rule change was approved behind closed doors at the 
Department of Justice. Fundamental changes to the way we allow law 
enforcement to execute searches need to be made through a process that 
is fully transparent to the American people. We cannot give the Federal 
Government a blank check to infringe upon our civil liberties.
  If Congress does not act, this rule change will automatically go into 
effect December 1. This bill simply delays the rule change. It is a 
delay which will allow Congress to consider new law enforcement tools 
through a process they deserve. I urge my colleagues to join my 
colleagues in delaying this rule.
  Mr. President, I yield the floor.

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