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Rudy Takala's Columns

Q&A with Sen. Ron Wyden

Ron Wyden has spent more than 35 years in Congress, the last 20 of which as a senator. Members with that long of a track record often seem to have an unusually high degree of trust in the inherent virtue of government, and they are sometimes more dismissive of checks and balances on government power.

Wyden, who was born to Jewish refugees from Nazi Germany, represents an exception to that rule. The senior Democrat from Oregon, who sits on his chamber's Select Committee on Intelligence, is often the most persistent thorn in the side of his colleagues.

"I break no oaths, I share no secrets and I see my job as to ask tough questions," Wyden told the Washington Examiner. "To me, that's what a member of the Intelligence Committee is obligated to do under statute. The statute directs us to engage in vigorous oversight."

That principle has guided Wyden to two main issues in this session of Congress, both of which are known for arcane intelligence statutes authorizing sweeping surveillance authorities.

The first is "Rule 41," a section of the Rules of Criminal Procedure that the Justice Department is set to change by Dec. 1 if Congress fails to issue an injunction. If Congress does not act, the change will enable the department to hack tens of thousands of Internet users using a single warrant.

"There's a script to this. They don't stand up and say, 'Oh my goodness, everybody in America should be up in arms about the potential impact.' They always cast it as kind of a modest, administrative change, and fudge so much," Wyden said, calling it "a policy matter that should come before the Congress."

The second issue Wyden is focused on involves Section 702 authority under the Foreign Intelligence Surveillance Act. The section, which will expire at the end of 2017 unless it's renewed by Congress, authorizes the intelligence community to surveil online communications involving foreign nationals.

However, critics note that the program also captures as many as 250 million exchanges involving American citizens annually, a problem that Wyden said amounts to a loophole.

"As communication systems become globally integrated and interconnected, increasingly we're going to have more law-abiding Americans swept up into those searches, and they're going to have their records collected without a warrant," Wyden said. "That's why we're going to make a special priority to close the loophole."

Washington Examiner: How difficult would you say it is for a foreign state to hack a member of Congress if they want to do that?

Wyden: I'll not get into anything classified, but I think it's understood that the growth of hacking has been exponential. There's been extraordinary growth.

Examiner: What should be done to enhance cybersecurity in Congress and across the federal government?

Wyden: Here's the central challenge with respect to cyber and a host of these issues. The American people want policies that will promote their security and their liberty, and increasingly, there's an effort to pass policies that are really almost doing less of both.

A pretty good example of that is the encryption debate. What we saw from day one, the FBI came out of the box and said, "We've just got to be able to hack this device and get into it. And if we can, the safety and well-being of Americans will be something that we can secure."

First they said, "We're only looking at one phone." That was untrue. They were looking at hundreds of phones. The district attorney [Cyrus Vance] in New York said that in the papers. Then they were really talking about recreating code, which had implications for lots of phones. And then particularly telling was the fact that lawbreakers could go all over the world and get hundreds of products with strong encryption.

So this argument about how they had to get into this device or Americans wouldn't be safe, they had to have weaker encryption, there had to be backdoors, just didn't stand up. The idea that they were advancing something that would make us more secure was off-base.

Then of course you'd have less liberty. People have their lives in these smartphones. If you weaken encryption, it's practically like you're giving a gift to a pedophile. The location tracker, strong encryption, provides a real measure of security.

Now what we have said is, there are a host of steps that you can take. Obviously, companies are going to have to have some common sense with respect to protecting their networks. Certainly we've been supportive of funding the agencies to ensure that they have the talent, that they have the kind of people from the Silicon Forest or Pacific Northwest or Silicon Valley. And help them get out in front of the threats.

But increasingly what we're told just doesn't add up to the facts. With the big cyberbill that passed, we were told this could have prevented some of the [initial] big hacks. When we got out to the floor, we found out it wasn't the case.
And it was basically a bill about sharing information, with very little protection for liberty. I said, "Well, if you have a cyberbill without many protections for liberty, it's not really a cybersecurity bill. It's a cybersurveillance bill."

So there are practical steps that you can take, and we've been supportive of those. But when the county wants a win-win, policies that promote security and liberty, and increasingly is getting policies that are a lose-lose, then you'll see members of Congress, and now our Ben Franklin Caucus as we like to say, now has members of both parties.

Examiner: Do you think the encryption issue is going to remain dead in Congress for the foreseeable future?

Wyden: You'd have to ask the principal sponsors. I've always felt that the most hospitable forum for a bill that would dramatically weaken encryption is the Senate Intelligence Committee, because you have the chair and the ranking minority member circulating drafts of legislation that I thought were badly flawed.

Obviously in a situation like this, there's been lots of lobbying for that bill from people like Mr. Vance in the newspaper, and from senators. Certainly when there are tragedies, one of the first things that those who want to weaken encryption want to bring up is, well, that wouldn't have happened if we had a backdoor.
Again, that represents a lose-lose situation. 

With strong encryption overseas, you'd weaken products here. You'd probably have less control over people overseas than you do people in this country, so it's bad from a security standpoint, bad from an economic standpoint, and bad from a liberty standpoint. That's a trifecta of misguided policies.

Examiner: Do you support the general suggestion of enabling more civilian authorities to participate in federal cybersecurity?

Wyden: We're looking at the question of restructuring Cyber Command, and I'm open to different approaches on it. The reason the hiring authority is important is that there are people who have the skills to ensure that we can actually get out in front of the hackers.

That's been demonstrated. There is considerable talent in my state, in the Silicon Forest, and in Silicon Valley, and we ought to make sure we get it and get it in there.

Examiner: What is the role of a member on the Intelligence Committee?

Wyden: What we do, we have kind of a basic set of rules. I break no oaths, I share no secrets and I see my job as to ask tough questions. And I particularly focus on when members of the intelligence community go out in public and say stuff that is palpably untrue. For example ... you can see it on YouTube, the former head of the NSA, Gen. Keith Alexander, said we don't hold data on U.S. citizens.

When I heard that, I said, "That's one of the most false statements ever made about American intelligence." So that began the months-long odyssey that led to asking Gen. Keith Alexander in public whether the government collected any kind of data at all on hundreds of millions of people, and he lied.

That's our job, to ask tough questions. To me, that's what a member of the Intelligence Committee is obligated to do under statute. The statute directs us to engage in vigorous oversight.

Examiner: Congress uses classified legislation to pass some surveillance programs. Do you think that power is being overused to pass programs that would lack public support?

Wyden: Of course, in the instance of the national security letters, I opposed it in the committee, because I felt the FBI did not make the case for why we should dispense with judicial oversight. But to actually pass a bill like that, eventually it's going to see broad daylight.

Now that it has, we've seen a number of members of Congress from both political parties say that if you're going to try to legislate something of this breadth and effect, electronic communication transactional records like emails, logins, IP addresses, browsing history, you're going to have to make a case for it.

So once again, it's 14-1 in the Senate Intelligence Committee. But now that it's seen broad daylight, even the Senate Judiciary Committee has had to postpone two sessions because of pushback. In the House there's pushback.

There's no question that we always start out behind. I get that. I understand the history of institutional power. There once again, you had the chair and the ranking minority member in support of an effort. But we've had a pretty good track record once we have a chance to ensure that people ... get to see it.

A few years back there was a proposal to stop leaks. I'm not for leaks, I've actually been the author of legislation to double the punishment for people who are outing intelligence agents and the like. But what was done was so broad, it would've kept information from journalists that was part of the public record.

Once again, the vote in the Intelligence Committee was 14-1, but it had to actually get passed on the Senate floor. When it got held up to scrutiny in broad daylight, even the people who voted for it wouldn't defend it in public, and it was removed from the bill.

Examiner: Do you think there will be a time when Ed Snowden is either pardoned or the Justice Department drops charges?

Wyden: A couple of things. First, I don't believe I'm in the prosecution business. I don't sit in judgment of pending criminal charges. I do think there is a double standard. I get the sense that there is a double standard where defenders of particular programs can disclose classified information and get off scot-free, while critics of the programs go to prison.

So what I'm going to be doing is advancing policies that I think will promote both security and liberty, and I think you can do that without throwing the constitutional rights of Americans in a trash can.

Examiner: Are there particulars to a legislative solution that you could see?

Wyden: Certainly, prosecutors can have discretion. I continue to support efforts to support the rights of whistleblowers and beef up protections for them. There was a public hearing [where] we had the nominee for the National Reconnaissance Office, it's a big program ... They authorize very large contracts in secret.

There's been a history of retaliation against whistleblowers. So we had the recent nominee come before us, and I asked two questions. I asked, "Do you understand why employees would be concerned given this history?" She said, "Absolutely."

And then I [asked], "Will you make it a priority, and focus, if confirmed, on getting together with the employees and describing to them specifically how they would be protected in the advent of a whistleblower situation?" She said she would.

That's an indication that our message is getting through. Sen. Charles Grassley is the chair of the Whistleblower Caucus, I'm his vice-chair and we've worked on these issues a long time.

Examiner: How have legal authorities for surveillance grown since the Snowden revelations?

Wyden: I can't get into classified policies, but you have one policy after another that seeks to expand the government's authority that would, in my view, violate the constitutional rights of law-abiding Americans. We're talking about national security letters, dispensing with judicial oversight, [and] Rule 41, which expands the government's hacking authority, and in effect treats victims the same way it treats attackers.

The idea that one judge, involving multiple jurisdictions, can in effect greenlight hacking millions of computers, I think is pretty far-reaching, sweeping stuff. At a minimum, this is the kind of issue that government should have brought to the Congress. It's been cast as sort of an administrative change, a modest, almost housekeeping kind of policy.

When you're talking one judge, multiple jurisdictions, authority to hack millions of computers, that's not some kind of garden variety housekeeping matter. That's a policy matter that should come before the Congress. You've got, of course, this year to try to make the case that it shouldn't go into effect, and we are.
Examiner: Are you optimistic about the prospect of both chambers voting to prevent the Rule 41 revision?

Wyden: We're going to push hard. I'm a Yogi Berra guy, I don't do predictions about the future. But we work very hard, and can know once again that the government will come in and say it's a modest change.

There's a script to this. They don't stand up and say, "Oh my goodness, everybody in America should be up in arms about the potential impact." They always cast it as kind of a modest, administrative change, and fudge so much.

I asked Director [James] Clapper a very clear question: "Does the government collect any type of data at all on millions or hundreds of millions of Americans?" He's given five different answers as to why he responded falsely. His staff can give them to you, walk through the dates and the times and the places.

His first answer was particularly absurd, where he said something along the lines of, "I answered correctly, we don't voyeuristically search people's personal data." Somebody pointed out that wasn't at all what the question was. And he just kept spinning from one answer to another.

Examiner: On the topic of mass surveillance, Section 702 is set to expire next year unless it's renewed.

Wyden: 702 is about targeting foreigners when there is a legitimate need to target foreigners, without getting into classified details, but we're concerned about the growth of the backdoor search loophole.

And what that's all about is that as communication systems become globally integrated and interconnected, increasingly we're going to have more law-abiding Americans swept up into those searches, and they're going to have their records collected without a warrant. That's why we're going to make a special priority to close the loophole.

Examiner: What's on your recommended reading list?

Wyden: I'm partial, as a first choice, to my dad's book about the Bay of Pigs. There's a picture of my dad on the back with Fidel Castro. The caption is, "Peter Wyden knows more about it than we do."

I think it was my dad who told me how important it was if you're a journalist or public official to ask tough questions.

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