[Congressional Record (Bound Edition), Volume 161 (2015), Part 12]
[Senate]
[Pages 16513-16516]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

                           EXECUTIVE CALENDAR

  The PRESIDING OFFICER. Under the previous order, the Senate will 
proceed to executive session to consider the following nomination, 
which the clerk will report.
  The senior assistant legislative clerk read the nomination of 
Lawrence Joseph Vilardo, of New York, to be United States District 
Judge for the Western District of New York.
  The PRESIDING OFFICER. Under the previous order, there will be up to 
30 minutes of debate.
  The Senator from Oregon.
  Mr. WYDEN. Mr. President, I ask unanimous consent to speak as in 
morning business for up to 20 minutes.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.


                 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--

[[Page 16514]]

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 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

[[Page 16515]]

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 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.

[[Page 16516]]



                          ____________________