July 23, 2019

Wyden: AG Barr and Trump Want to Open Government Backdoors into Americans’ Personal Devices Video Available Here

As Prepared for Delivery

Today I rise to rebut the deeply flawed proposal that the attorney general made this morning.

Mr. President, Attorney General Barr today raised a tired, debunked plan to blow a hole in one of the most important security features protecting digital lives of the American people. Mr. Barr, echoing far right Republicans, is once again trying to undermine strong encryption and require government backdoors into Americans’ personal devices. 

Encryption is a technical term that gets thrown around a lot by folks in the government who don’t want you to use it. But the idea is simple. It’s using math to encode your information so that the only people who can read it are the ones you want to.

As you know, encryption is used every time a credit card is swiped or an online bank account is accessed. It helps protect our children from predators who would spy on them through their cell phone cameras or surreptitiously track their movements. It keeps our health records, personal communications and other sensitive data secure from hackers. It helps protect national security secrets from hackers working for the Russian, Chinese, North Korean and other hostile governments.

I’ve spent a decade fighting off horrible plans to undermine strong encryption. My usual argument goes something like this - you can’t only build a backdoor for the government. Once you weaken encryption with a backdoor, you make it far easier for criminals, hackers and predators to get into your digital life. And then I go through all the reasons the government’s plan to build a backdoor is about the worst idea since Crystal Pepsi.

However, Mr. President, today I want to raise a new and even more pressing concern. 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 this attorney general and this president the unprecedented power to break encryption across the board and burrow into the most intimate details of every American’s life - they will abuse those powers.

I don’t say that lightly. And 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 they cannot be trusted with this kind of power.

Their record shows they do not feel constrained by the law. They have not been bound by legal or moral precedents. Trump, by his own words, has no ethical compunctions about using government power against his political enemies.

Never before have I been so certain that the administration in power would knowingly abuse the massive power of government surveillance. It is for that reason that building government backdoors into the encrypted communications of Americans now is uniquely dangerous and must be opposed at all costs.

These are serious charges, and I want to walk through my reasoning.

First, let’s discuss Attorney General Barr’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 that up on C-SPAN.

But I’d just like to highlight one item again - William Barr’s testimony in October 2003, where he laid out his ideological position that the president is not restrained when it comes to surveilling people right here in the United States. Not by laws passed by Congress. Not even by the Fourth Amendment to the Constitution.

In that 2003 testimony Mr. Barr said the PATRIOT Act didn’t go far enough in terms of government surveillance. Even worse, however, Mr. Barr said that laws going back to the 1970s have no real effect on presidential power.

He said the following: “Numerous statutes were passed, such as FISA, that purported to supplant Presidential discretion with Congressionally crafted schemes whereby judges become the arbiter of national security decisions.”

In one sentence, Mr. Barr condescendingly dismissed 40 years of congressional action and 200 years of constitutional governance. We should take William Barr at his word that he has contempt for our laws and the Fourth Amendment. 

It is far more than just words, however, that leads 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 of the Department of Justice revealed this March that William Barr gave the OK to a bulk phone records dragnet at the DEA, that ran for more than 20 years.

The Inspector General found that Barr never even looked to see whether the DEA bulk surveillance program was legal. The IG found this, quote, “troubling” because of the disconnect between what the law says and how it was secretly being interpreted and used. The DEA program that William Barr approved relied on subpoena authority that requires that the records being collected are “relevant or material” to an investigation. But Barr didn’t bother to consider whether all those phone records collected in bulk were consistent with the law. He just went ahead and approved it. 

Now the Inspector General tends to be polite about outright calling government programs illegal. But even the IG 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 IG found that the records collected from this program were used outside the DEA for investigations that had nothing to do with drugs, a practice that the IG said, “raised significant legal questions.”

As the IG report noted, Congress was kept almost entirely in the dark about this decades-long, illegal bulk collection program with the exception of a single secret Senate Intelligence Committee hearing in 2007. But even then, it was obvious that the program was illegal. That’s why my colleague, Senator Feingold, and I wrote to the DNI 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.

This was the secret – illegal bulk collection program that 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 who has a history of breaking it.

You also have a president who, almost every day, expresses contempt for any legal or constitutional restraints on his power. That attitude applies to surveillance, too. In response to Russian hacking his opponents in 2016, he said, “I wish I had that power.”

This is the president whom Attorney General Barr thinks can do no wrong. This is the president whom the attorney general thinks is above the law. This is the president whom the attorney general will cover for at every turn, as he did when he repeatedly lied about the contents of the Mueller report.

Here’s why this all 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 this backdoor without a court-ordered warrant. But Barr, in his own words and actions, has demonstrated repeatedly that, when it comes to surveillance, the laws don’t matter, the courts don’t matter and even the Constitution doesn’t matter. The only thing that matters is whatever he and the president feel like doing.

What senator in their right mind would hand these men the authority to break into every single American’s phone?

Imagine what kind of information they could gather on their political opponents. Imagine if a member of Congress was secretly gay and desperate to hide that fact. Or imagine that a member of Congress had cheated on his wife, despite campaigning on family values. Would a man like Donald Trump use that information against them? Would he use it to secure their loyalty in the face of his own wrongdoing?

Mr. President these are dark times. I understand the world is a frightening place, and some government agencies will always advocate for greater powers to surveil Americans and intrude into our digital lives.

But remember, banning encryption in America will not stop bad guys from using encryption. It will not ban basic math and 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 this lawless administration.