Statements on Introduced Bills and Joint Resolutions

Floor Speech

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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 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.

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