Russell Feingold

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, I send a modification to the desk. This modification changes a typographical error in the original amendment.

Mr. FEINGOLD. Mr. President, I want to make sure, before we proceed with this amendment, the Senator from Minnesota has an opportunity to address it.

Mr. FEINGOLD. Mr. President, I thank the Senator from Minnesota for his tremendous support of this amendment and his knowledge of the subject. I am also hopeful this amendment will be accepted and make it all the way through the process. It is extremely modest. I appreciate his help. Mr. President, I suggest the absence of a quorum.

Mr. FEINGOLD. Mr. President, I ask unanimous consent the order for the quorum call be dispensed with.

Mr. FEINGOLD. Mr. President, pursuant to the previous order, I send an amendment to the desk.

Mr. FEINGOLD. I ask unanimous consent the reading of the amendment be dispensed with.

Mr. FEINGOLD. Mr. President, there is a great sense of unity across the Nation as we begin the process of recovering from the events of September 11. I have been very heartened by the bipartisanship demonstrated by Congress as it acts to respond to the human and economic devastation. We will need to maintain that unity as we ask for the sacrifices necessary to end this business. Given all that has happened, all that will happen, and the sacrifices that will be asked of all Americans, Congress should not accept a $4,900 pay raise. My amendment would stop it. The automatic pay raise is something that I never regarded as appropriate. It is an unusual thing for someone to have the power to raise their own pay. Few people have that ability. Most of our constituents do not have that power. And that this power is so unusual is good reason for the Congress to exercise that power openly, and to exercise it subject to regular procedures that include debate, amendment, and a vote on the record. That is why this process of pay raises without accountability must end. The 27th amendment to the Constitution states: No law, varying the compensation for the services of the senators and representatives, shall take effect, until an election of representatives shall have intervened. A number of my colleagues have approached me about this pay raise in the past few weeks, and many have indicated they support the pay raise. In fact, one of my colleagues said they would offer an amendment that actually increased the scheduled $4,900 pay raise because they felt it was too low. While I strongly disagree with that position, I certainly respect those who hold it. But whatever one's position on the pay raise, the Senate ought to be on record on the matter if it is to go into effect. The current pay raise system allows a pay raise without any recorded vote. Even those who support a pay raise should be willing to insist that Members go on record on this issue. This process of stealth pay raises must end, and I have introduced legislation to stop this practice. But the amendment I offer today does not go that far. All it does is to stop the $4,900 pay raise that is scheduled to go into effect in January. We are spending the hard-earned tax dollars of millions of Americans to recover from the horrific events of September 11 and to ensure that it does not happen again. We have spent all of the on-budget surplus, and are well into the surplus that represents Social Security trust fund balances. That is something we should do only to meet the most critical national priorities. A $4,900 pay raise for Congress is not a critical national priority. This to me obviously is not the time for Congress to accept a pay raise. Let's stop this backdoor pay raise, and then let's enact legislation to end this practice once and for all.

Mr. FEINGOLD. Mr. President, parliamentary inquiry: Is the Chair aware of any basis in the bill for the defense of germaneness?

Mr. FEINGOLD. I thank the Chair.

Mr. FEINGOLD. Mr. President, in light of the Chair's ruling, I want to let the body know that this issue is not going away. I understand a number of my colleagues want a pay raise. While I disagree with that sentiment, I certainly respect their right to hold it. I believe at the very least there should be a rollcall vote on this matter itself and not on any procedural approach. I will bring this issue back at every reasonable opportunity until I get a roll call on the merits. I thank the Chair. I yield the floor. Amendment No. 1953

Mr. FEINGOLD. Mr. President, I send an amendment to the desk, and I ask for its immediate consideration.

Mr. FEINGOLD. Mr. President, I ask unanimous consent that the reading of the amendment be dispensed with.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, I ask unanimous consent that the Select Committee on Intelligence be authorized to hold a closed hearing on intelligence matters on Wednesday, October 24, 2001, at 2:30 p.m., in room S-407 in the Capitol.

Mr. FEINGOLD

Mr. FEINGOLD. Madam President, is the Senator from Vermont proposing a time agreement?

Mr. FEINGOLD. Mr. President, I call up amendment No. 1901, which is at the desk.

Mr. FEINGOLD. I ask unanimous consent that further reading of the amendment be dispensed with.

Mr. FEINGOLD. Mr. President, I am grateful for the remarks of the Senator from Washington. I am afraid we are going to read them in a few years and wish maybe we listened more closely to what we are doing on this particular provision. I reserve the remainder of my time.

Mr. FEINGOLD. I ask unanimous consent the reading of the amendment be dispensed with.

Mr. FEINGOLD. I ask this time now be charged to the first amendment.

Mr. FEINGOLD. Madam President, this amendment simply clarifies the provision in the bill dealing with computer trespass, section 217, so that it more accurately reflects the intent of the provision, as frequently expressed by the administration. Section 217 is designed, we have been told, to permit law enforcement to assist computer owners who are subject to denial of service attacks or other episodes of hacking. As currently drafted, however, this provision could allow universities, libraries, and employers to permit government surveillance of people who are permitted to use the computer facilities of those entities. Such surveillance would take place without a judicial order or probable cause to believe that a crime is being committed. Under the bill, anyone accessing a computer ``without authorization'' is deemed to have no privacy rights whatsoever, with no time limit, for as long as they are accessing the computer at issue. Basically, the way I read this, this provision completely eliminates fourth amendment protection for a potentially very large set of electronic communications. The danger that this amendment tries to address is that ``accessing a computer without authorization'' could be interpreted to mean a minor transgression of an office or library computer use policy. Let's take an example. A working mom uses an office computer to purchase Christmas presents on the Internet. Company policy prohibits personal use of office computers. This person has potentially accessed a computer without authorization and her company could give permission to law enforcement to review all of the e-mails that she sends or receives at work, monitor all the instant messages she sends, and record every website she visits: No warrant, no probable cause, no fourth amendment rights at all. My amendment makes clear that a computer trespasser is not someone who is permitted to use a computer by the owner or operator of that computer. This amendment also limits the length of this unreviewed surveillance to 96 hours, which is a longer time frame than that placed on other emergency wiretap authorities. Again, if this provision is aimed solely at responding to cyber-attacks, there is no need to continue such surveillance beyond 96 hours--which is the time we put in our amendment--because that time is sufficient to allow the government to obtain a warrant to continue the surveillance. It is not as if they cannot continue it, they simply have to get a warrant after 4 days. Warrants based on probable cause are still the constitutionally preferred method for conducting surveillance in America. The need for immediate and emergency assistance during a denial of service attack or hacking episode, which I certainly think is a legitimate concern, cannot justify continued surveillance without judicial supervision. Finally, this amendment prevents law enforcement from abusing this authority in investigations unrelated to the actual computer trespass. The current provision potentially allows law enforcement to intercept wire and electronic communications in many investigations where they may not want, or be able, to secure a court order. If the government suspects a person of committing a crime but does not have probable cause to justify monitoring of the suspect's work computer, it could pressure the owner or operator of the computer to find some transgression in the suspect's computer use, allowing the government carte blanche access to email and internet activity of the suspect. I suspect that few small business owners will be anxious to stand up to federal law enforcement requests for this information. Now the administration was apparently willing to add language to deal with employees using office computers, but it refused to recognize that in our society many people use computers that they do not own, with permission, but without a contractual relationship. People who don't own their own home computers use computers at libraries. Students use computers at school in computer labs or student centers. Without my amendment, these innocent users could become subject to intrusive government surveillance merely because they disobeyed a rule of the owner of the computer concerning its use. I have been told that this is not the administration's intent, but they would not fix this provision. So I think it is fair to ask why. Why does the administration insist on leaving open the possibility that this provision will be abused to entirely eliminate the privacy of students' and library patrons' computer communications? Is there a hidden agenda here? I sincerely hope not, but I was very disappointed in the administration's unwillingness to address this concern. I remain willing to negotiate on this amendment, but if there is no further movement on it, I hope my colleagues will recognize that this amendment will leave the publicly expressed purpose of the computer trespass provision untouched and fix a potentially disastrous case of overbreadth. I reserve the remainder of my time. I ask for the yeas and nays on the amendment.

Mr. FEINGOLD. Madam President, how much time do I have remaining on my side?

Mr. FEINGOLD. Madam President, I yield 5 minutes to the Senator from Washington.

Mr. FEINGOLD. Madam President, first, I want to say how important it is to have on the committee the Senator with expertise in this area as well as her own background. I appreciate very much her help on this matter. Madam President, how much time do I have remaining on my side?

Mr. FEINGOLD. I am happy to yield 5 minutes to the Senator from Minnesota.

Mr. FEINGOLD. That is right, exactly. This is exactly the problem. All we asked of the committee and of the administration yesterday was to make it clear that they did not want to reach these people. That is what we have been told. The purpose of this is to get at the threat of computer hackers. The Senator from Illinois has just illustrated, with those examples-- and he is, of course, correct--that this could be interpreted and could be understood to include situations that not only have nothing to do with the problem but represent a very serious departure from the individual rights people should have in our country.