[Congressional Record Volume 165, Number 124 (Tuesday, July 23, 2019)]
[Senate]
[Pages S4986-S4993]


                               Encryption

  Mr. WYDEN. Mr. President, today I rise to rebut the deeply flawed 
proposal the Attorney General made this morning. This morning, he 
raised a tired, debunked plan to blow a hole in one of the most 
important security features protecting the digital lives of the 
American people. Mr. Barr--once again echoing the views of some on the 
far, far right--is trying to undermine strong encryption and require 
government back doors into the personal devices of the American people.
  ``Encryption'' is a technical term that gets thrown around by people 
in government who don't want you to use it. The idea, however, is 
simple: It is using math to encode your information so that the only 
people who can read it are the ones you want to read it.
  As is often known, encryption is used every time a credit card is 
swiped or an online bank account is accessed. It helps protect our kids 
from predators who would spy on them through their cell phone cameras 
or surreptitiously track their movements. It keeps our health records, 
our personal communications, and our other sensitive data secure from 
hackers. Strong encryption helps protect national security secrets from 
hackers working for the Russians, the Chinese, the North Koreans, and 
other hostile governments.
  I have spent a full decade fighting off horrible plans to undermine 
strong encryption. My usual argument goes something like this: You 
can't build a back door only for the good guys, for government 
officials who are trying to protect people. Once you weaken encryption 
with a back door, you make it far easier for criminals and hackers and 
predators to get into your digital life. Then I go through all the 
reasons the government's plan to build a back door is just about the 
worst idea since Crystal Pepsi.
  Today, I want to raise some even more pressing concerns that are new. 
Many times in the past, I have warned that unnecessary government 
surveillance holds the potential to be abused, but I have never done 
what I am doing today. Today, I fear--rather, I expect that if we give 
the Attorney General and the President the unprecedented power to break 
encryption across the board and burrow into the most intimate details 
of Americans' lives, they will abuse those powers. I don't say that 
lightly. Yet, when I look at the record, the public statements, and the 
behavior of William Barr and Donald Trump, it is clear to me that you 
can't make the case for giving them this kind of power. There is too 
much evidence that they will abuse it. Their record shows they do not 
feel constrained by the law. They have not been bound by legal or moral 
precedents. Donald Trump, by his own words, has no ethical 
compunction--these are his words--about using government power against 
his political enemies.
  Never before have I been so certain that an administration in power 
would knowingly abuse the massive power of government surveillance. It 
is for that reason that building government back doors into the 
encrypted communications of the American people is now uniquely 
dangerous and must be opposed at all costs.
  These are serious charges that I have made, and I am going to walk 
through my reasoning. First, I would like to discuss the Attorney 
General's history when it comes to government surveillance and 
government power.
  When this body voted on Mr. Barr's nomination earlier this year, I 
laid out in great detail his history when it comes to Executive power. 
Anyone wishing for a full airing of Mr. Barr's lifelong devotion to 
unbounded Executive power can dial up those remarks of mine on C-SPAN, 
but I just want to highlight one item again this morning.
  Mr. Barr testified in October of 2003, and he laid out his 
ideological position that the President is not restrained when it comes 
to surveilling people here in the United States--not by laws passed by 
Congress, not by the Fourth Amendment, no constraints.
  In that 2003 testimony, Mr. Barr said that the PATRIOT Act didn't go 
far enough in terms of government surveillance. Even worse, Mr. Barr 
said that laws going back to the 1970s have no real effect on 
Presidential power. Mr. Barr said: ``Numerous statutes were passed, 
such as FISA''--Foreign Intelligence Surveillance Act--``that purported 
to supplant Presidential discretion with Congressionally crafted 
schemes whereby judges become the arbiter of national security 
decisions.'' In one sentence, Mr. Barr just swept 40 years of 
congressional action and 200 years of constitutional governance out the 
window. We ought to take him at his word that he has contempt for the 
Fourth Amendment and critical laws that protect our law-abiding people.

[[Page S4989]]

  It is far more than just words, however, that lead me to this 
conclusion. It is now public record that William Barr, when he was 
Attorney General in the 1990s, approved a massive, illegal surveillance 
program.
  The inspector general at the Department of Justice revealed this 
March that William Barr gave the OK to a bulk phone records dragnet at 
the Drug Enforcement Agency that ran for more than 20 years. The 
inspector general found that Mr. Barr never even looked to see whether 
that Drug Enforcement Administration bulk surveillance program was 
legal. The inspector general called it ``troubling'' because of the 
disconnect between what the law says and how it was secretly being 
interpreted and used. The Drug Enforcement Agency program that William 
Barr approved relied on subpoena power that requires that the records 
being collected be ``relevant or material'' to an investigation. But 
Mr. Barr didn't bother to consider whether all of those phone records 
that were collected in bulk were consistent with the law; he just went 
ahead and rubberstamped it.
  The inspector general tends to be polite about outright calling 
government programs illegal, but even the inspector general pointed out 
that there are multiple court cases that ``clearly suggested potential 
challenges to the validity of the DEA's use of this statutory subpoena 
power in this expansive, non-targeted manner.''
  Finally, the inspector general found that the records collected from 
the program were used outside the Drug Enforcement Agency for 
investigations that had nothing to do with drugs--a practice the 
inspector general said ``raised significant legal questions.''
  The inspector general goes on to note that Congress was kept almost 
entirely in the dark. At a time when the American people are hungry for 
transparency and openness and accountability, the inspector general 
says Congress was kept in the dark by Mr. Barr about a decades-long, 
illegal bulk collection program, with the exception of a single secret 
Intelligence Committee hearing in 2007. Even then, it was obvious the 
program was illegal. That is why my colleague Senator Feingold and I 
wrote to the head of National Intelligence pointing out that the 
subpoena authority the DEA was using was never intended for bulk 
collection. This was secret law, and it was wrong and dangerous.
  That is why I wanted to make sure people knew Mr. Barr's history, 
because this secret, illegal bulk collection program was approved by 
the current Attorney General. So you have an Attorney General who not 
only has said he is not constrained by the law, but he has a history of 
breaking the law. You also have a President who almost every day 
expresses contempt for any legal or constitutional restraints on his 
powers. That attitude applies to surveillance too. In 2016, in response 
to Russian hacking of his opponents, Donald Trump said: ``I wish I had 
that power.''
  So Donald Trump--a President who Attorney General Barr thinks can do 
no wrong--is the one who is driving this. This is the President who 
Attorney General Barr thinks is above the law. This is the President 
whom the Attorney General will, in effect, cover for at virtually every 
turn, as he did when he repeatedly lied about the contents of the 
Mueller report.
  Let me close by talking about why this matters to William Barr's 
efforts now to break into Americans' encrypted communications. The 
argument that the government needs to weaken encryption has always been 
based on the promise that the government will never use the back door 
without a court-ordered warrant.
  Yet Mr. Barr, in his own words and actions, has demonstrated 
repeatedly, when it comes to surveillance, that the laws don't matter, 
that the courts don't matter, and that even the Constitution doesn't 
matter. The only thing that matters is what he and the President feel 
like doing.
  So I would ask my colleagues who are here, what Senators in their 
right minds would give these men the authority to break into the phone 
of every single American? Imagine what kind of information they could 
gather on their political opponents. Imagine if a Member of Congress 
were secretly gay and were desperate to hide the fact. Despite 
campaigning on family values, imagine if a Member of Congress had 
cheated on his wife. Would a man like the individual I have described 
here use that information against them? Would Donald Trump use it to 
secure their loyalty in the face of his own wrongdoing?
  I understand that the world is a frightening place, and anybody who 
serves on the Select Committee on Intelligence would share that view. 
Some government agencies will always advocate for greater powers to 
surveil Americans and intrude into their digital lives. It is important 
to remember, as I touched on in the beginning, that the banning of 
encryption in America will not stop the bad guys from using encryption, 
and it will not ban basic math algorithms elsewhere in the world. It 
will only leave Americans less secure against foreign hackers, and--I 
regret having to say this--it will leave Americans less secure against 
intrusions by an administration that has shown it is willing to support 
lawless measures.
  I yield the floor.