Comprehensive Addiction and Recovery Act of 2015--Motion to Proceed--

Floor Speech

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Mr. KING. Mr. President, when I first entered this body in the winter of 2013, I was appointed to the Intelligence Committee. Every Tuesday and Thursday, we would meet for several hours talking about very difficult, very complex, and sometimes very scary issues.

After sitting through those meetings for several months, it suddenly came to me what our mission in that committee is. It really comes down to balancing two provisions of the Constitution. The Preamble to the Constitution, which establishes the basic premise for why we have a government and why the Constitution was established, uses two important phrases in conjunction with each other. The first is ``to ensure domestic Tranquility'' and the second is ``to provide for the common defence.'' There are other elements listed, but that is part of the essence of any government: to ensure domestic tranquility and provide for the common defense; in other words, to keep us safe. That is what government is all about.

But on the other hand, the Bill of Rights, and particularly the Fourth Amendment, makes it clear that there are limitations on government's power in whatever area. The Fourth Amendment says that ``the right of the people to be secure in their persons, houses, papers, and effects shall not be violated'' and also: no unreasonable searches and seizures. Those two provisions are intentional, and they have been since the founding of the Republic. The role of the Intelligence Committee and this body, it seems to me, is to constantly recalibrate the balance between those two provisions based upon the threats our country faces and the developments of technology. That is really what this discussion is about. It has been brought into sharp focus in the last two weeks by the case involving Apple and San Bernardino, as well as other cases around the country.

The Apple case points out the complexity and the difficulty of these issues. It is not simple. It is easy to say it was a terrorist's phone; open it up and get the information. But then we learn that, No. 1, Apple is not being asked to simply throw a switch or plug in a wire. It is being asked to write new software that would compromise its own software protections built into its iPhones all over the world. So it is being asked to create something, not simply open the doors. No. 2, although there has been some discussion about it as ``just this phone,'' it is not just this phone. Apple is being asked to create a new piece of software that compromises its operating system in such a way that the phone can be hacked. Once that piece of software is created, there is no telling where it will go. It is referred to in the tech literature as the ``golden key'' or the ``God key.'' Sure, Apple could keep it, but it might--who knows, a disgruntled employee could let it out. Apple itself could be hacked. It could fall into the hands of our intelligence community. It could then be made public. Once it is out there, we can't undo it.

What I mean by raising these issues is not that I know what the answers are, but that it is very complicated. And what if Apple creates the key for the San Bernardino phone but it ends up in the hands of China or Russia or Iran or a criminal enterprise, then we have compromised the security of millions of our citizens, and perhaps of our country itself.

The real point here is this is an issue of immense significance and public policy importance that should not be decided by a single court in California or Iowa or New Jersey or anywhere else based upon a 220- year-old law. This is an issue of policy that should be decided here. Indeed, in the district court opinion that was written yesterday in New York, that was released yesterday--I stayed up late last night reading it--the heart of that opinion was: This is a job for Congress. This is a policy question. The judge said the people who wrote the All Writs Act in 1789, the Judiciary Act of 1789, many of them were the same people who wrote the Constitution and the Bill of Rights. He said he could not believe they meant to import to the judiciary the power to make this kind of policy. That was the fundamental promise of the opinion. I commend that opinion to my colleagues. I have been reading judicial opinions for about 50 years. It is one of the best I have ever read in terms of the research and the footnoting. It is a very, very strong argument, and it makes the case I think very straightforwardly that this decision should not stay in the hands of the court. The real issue here is who shall decide this complex and portentous issue.

Now, generally, I don't like commission bills. Typically, they are often the politicians' way of putting the problem off to someone else in the future and we will deal with it later and we will appoint a blue-ribbon commission. But I have seen them work. The Senator from Maine mentioned the September 11 Commission that I think did excellent work and provided the basis for a great deal of good policy. In Maine we had a commission years ago on workers' comp, which was a very difficult issue in our State, but the commission helped us to get a political solution that ultimately helped to solve that problem. I have seen commissions work, and I think this is exactly the right answer in this particular situation, because the issue is so complicated and because it involves technology, it involves law, it involves the First Amendment, the Fourth Amendment, the Fifth Amendment, and it involves national security. These are important considerations, and we have to understand the ramifications of these issues before taking action.

Now, we may want to and need to address the specific issues raised in the current Apple case on an interim basis. We may decide not to do that, but that is an option whereby we don't necessarily have to wait until the commission acts because the commission is talking about larger issues. Yes, it is talking about the encryption issue, or would talk about the encryption issue, but it is also dealing with broader issues of digital security. So we may want to make an interim decision while we wait for the work of the commission.

I think the important point is that the question before the Senate is, Where should this decision be made? I would join my colleague from Maine by saying that this problem--this so-called going dark--the encryption problem and its constraints upon law enforcement are not new this week. We have been hearing about it in the Intelligence Committee and in the Armed Services Committee and generally in the press for 1 year or 2 years, and I believe the law enforcement community or the administration should have come forward with a legislative proposal for us to act upon. Of course, I am not absolving myself. We could have brought forth our own proposal. But it was their continuing to raise this issue, and I think it was incumbent upon them to say: Here is how I think it should be solved.

Now, I know if Mr. Comey were here he would say: Well, we hoped we wouldn't have to bother you about this because we were trying to work this out with the technology companies. I understand that. But I wish, frankly, that we had put forth this bill 1 year ago or 2 years ago, and then we would be in the position of answering this question today instead of starting down the path of handing this question to a commission that we hope will provide some answers and guidance to us that will help us to make policy.

I am delighted to be a cosponsor of this bill. I commend the Senator from Virginia for spearheading this effort. I think it is one that deserves quick attention here, and it is something that we can move so we can get to work on trying to understand all the ramifications of this decision. We don't want to compromise national security, but we also don't want to compromise personal security. And we don't want to create something that could redound against national security if it fell into the hands of some of our adversaries.

So I am delighted to be able to help with this effort. I look forward to working with the sponsor and the other cosponsors. Hopefully, this is something we can move on with alacrity so that we can bring this issue back to this Congress sooner rather than later. We will never answer the questions finally because by the time we get some answers, there will be new developments in technology and new questions. But we at least need to bring this debate into the 21st century and try to find a solution that will make sense, both in terms of national security and personal security for the citizens of this country.

Thank you, Mr. President.

I thank the Senator from Virginia as well.

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