(Senate - August 02, 2012)

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[Pages S5904-S5919]
From the Congressional Record Online through the Government Publishing Office []


  The ACTING PRESIDENT pro tempore. Under the previous order, the 
Senate will proceed to the consideration of S. 3326, which the clerk 
will report.
  The assistant legislative clerk read as follows:

       A bill, (S. 3326), to amend the African Growth and 
     Opportunity Act to extend the third-country fabric program 
     and to add South Sudan to the list of countries eligible for 
     designation under that Act, to make technical corrections to 
     the Harmonized Tariff Schedule of the United States relating 
     to the textile and apparel rules of origin for the Dominican 
     Republic-Central America-United States Free Trade Agreement, 
     to approve the renewal of import restrictions contained in 
     the Burmese Freedom and Democracy Act of 2003, and for other 

  The ACTING PRESIDENT pro tempore. The Senator from Oklahoma.
  Mr. COBURN. Mr. President, first of all, I wish to say I appreciate 
the leadership for working to ensure a vote on this package. This 
package was slowed down not because anybody is truly opposed to what we 
are trying to do, but the package was slowed down because of the way we 
are paying for it. We are going to see that coming over from the House 
as well. It is not a Republican or a Democratic problem; it is a 
problem of all of us because there is going to be an emergency farm 
bill, a disaster bill, coming over that is going to spend almost $400 
million, and it is paid for over 5 years. That has to stop. It has to 
  Right now, in this country, every man, woman, and child is on the 
hook for $53,000 of debt. So the typical American family is on the hook 
for 212,000 bucks right now because of what we have done. So my 
objection was not with the AGOA package, it is not with Myanmar, it is 
not with any of that. Those are great policy things. My objection is we 
are addicted to not fulfilling our responsibilities and delaying.
  So this is a very simple, straightforward message and amendment that 
does two things: One, it recognizes the recommendation of the Obama 
administration in terms of duplication and the need for consolidation. 
That is how we are eventually going to get out of the hole. We have 
$130 trillion in unfunded liabilities, and we have $16 trillion in 
debt. It was a good recommendation. We totally ignored it. We have 
ignored it. Nothing has happened on what they have recommended. There 
have been no hearings on what the Obama administration recommended in 
terms of combining some of the departments at OMB.
  So this is just a step toward trying to meet in the middle with what 
the Obama administration has recommended and us actually paying the 
$200 million in costs over 2 years, with $200 million worth of savings 
in 2 years.
  The bill, as it presently stands, takes 10 years to pay for $200 
million. We have a $3.7 trillion budget--or CR--and we can't find--it 
is less than one-hundredth of 1 percent, and we can't find it. So what 
this does is delay the cost--the payment--for this bill over a period 
of years, all the way out to 2023. No family who is broke gets to 
operate that way--and we are. Nobody who has maxed out their credit 
cards gets to do that, and we have maxed them out. So what we are 
saying is there is a ton of money that is available that we can use.
  We have had three amendments on this floor that everybody who is 
going to be in opposition to this have voted for to eliminate 
duplication. The vast majority of my colleagues on the other side have 
voted for it, and the vast majority of my colleagues on my side have 
voted for it. So we are going to use that same skill where we know 
there is waste and we know there is inefficiency. We have tons of GAO 
reports, tons of IG, and tons of oversight of the Homeland Security 
Committee in the Senate that shows where the duplication is. All we are 
asking is, let's pay for it. Let's pay for it.
  This place is so manipulated, I couldn't get a score until yesterday 
because somebody was telling them don't give him a score. Then when we 
changed the amendment, all of a sudden, because we want to know what 
the amendment says, CBO says: Well, wait a minute. That might not work. 
The fact is CBO didn't read our amendment right, and they know they 
didn't. So OMB was consulted. They said this amendment is 
implementable, and it fits with what the President was recommending in 
terms of consolidation of programs.
  So what it says is let's make this a start today. Let's actually 
start paying for things in the years in which we are going to spend the 
money, and let's not kick the can down the road. Let's not charge it to 
our kids because the history is we take 10 years to pay for something, 
we come back next year and we will change it. We will change it. So 
what was paid for this year all of a sudden is not paid for anymore, 
and it is smoke and mirrors for the American people.
  So this is very straightforward. It is a clean pay-for. It uses two 
mechanisms to get there which have been scored that will accomplish it.
  I fully support the AGOA. I am sorry we got delayed. I am actually 
sorry it took--because there has already been

[[Page S5905]]

some damage done, than had we passed it when it came here. That was 
never my intent, but we can right that today. What I agreed to is if I 
lose the amendment, fine. But to not try to pay for things, to not 
create a discipline to get back where we should be--we are going to do 
this. We may not do this today, but I promise my colleagues the 
international financial community, in a very short period of time, is 
going to make us do this. So let's start doing it on our own under our 
own terms rather than what some foreign bondholder or the Chinese want 
to do.
  The other objection that might be there is, well, if we do this, it 
will have to go back to the House. That is right. This passed on 
suspension. There was very little opposition to it. It will go back 
modified; they will pass it. I have talked to the Speaker. They haven't 
passed the other one first because they are waiting on us to act. We 
will hold ours at the desk because it has a revenue problem; they will 
modify theirs; they will do exactly what we did. I would just 
appreciate us standing up to the real problems in front of us.
  It is a great goal to want to help these areas. It is a great goal to 
put the sanctions back on Myanmar so that they can be adjusted and used 
to create freedom. Those are great goals. But there is a greater goal 
because none of those things are going to matter if our financial 
system, our way of life, crashes around us because we are not 
responsible here.
  I reserve the remainder of my time.
  The ACTING PRESIDENT pro tempore. Does the Senator wish to call up 
his amendment?
  Mr. COBURN. I do. I thank the Chair.

                           Amendment No. 2771

  The ACTING PRESIDENT pro tempore. The clerk will report.
  The assistant legislative clerk read as follows:

       The Senator from Oklahoma [Mr. Coburn] proposes an 
     amendment numbered 2771.

  Mr. COBURN. I ask unanimous consent that the reading of the amendment 
be dispensed with.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
  The amendment is as follows:

                (Purpose: In the nature of a substitute)

       Strike all after the enacting clause and insert the 


       (a) Extension of Third-Country Fabric Program.--Section 
     112(c)(1) of the African Growth and Opportunity Act (19 
     U.S.C. 3721(c)(1)) is amended--
       (1) in the paragraph heading, by striking ``2012'' and 
     inserting ``2015'';
       (2) in subparagraph (A), by striking ``2012'' and inserting 
     ``2015''; and
       (3) in subparagraph (B)(ii), by striking ``2012'' and 
     inserting ``2015''.
       (b) Addition of South Sudan.--Section 107 of that Act (19 
     U.S.C. 3706) is amended by inserting after ``Republic of 
     South Africa (South Africa).'' the following:
       ``Republic of South Sudan (South Sudan).''.
       (c) Conforming Amendment.--Section 102(2) of that Act (19 
     U.S.C. 3701(2)) is amended by striking ``48''.
       (d) Effective Date.--The amendments made by this section 
     shall take effect on the date of the enactment of this Act.


       Notwithstanding any other provision of law, the Director of 
     the Office of Management and Budget shall coordinate with the 
     heads of the relevant Federal agencies--
       (1) to, not later than 60 days after the date of the 
     enactment of this Act, eliminate, consolidate, or streamline 
     Federal programs and Federal agencies with duplicative or 
     overlapping missions relating to trade;
       (2) to, not later than September 30, 2012, rescind the 
     unobligated balances of all amounts made available for fiscal 
     year 2012 for programs relating to trade for the Department 
     of Commerce, the Small Business Administration, the Export-
     Import Bank of the United States, the Overseas Private 
     Investment Corporation, and the Trade and Development Agency, 
     with the amounts rescinded to be deposited in the general 
     fund of the Treasury for purposes of deficit reduction;
       (3) to reduce spending on programs described in paragraph 
     (2) by not less than $192,000,000 in fiscal years 2012 and 
     2013 (including the amounts rescinded pursuant to paragraph 
     (2)); and
       (4) to report to Congress not later than 180 days after the 
     date of the enactment of this Act with recommendations for 
     any legislative changes required to further eliminate, 
     consolidate, or streamline Federal programs and Federal 
     agencies with duplicative or overlapping trade missions.

  The ACTING PRESIDENT pro tempore. Who yields time?
  The Senator from Delaware.
  Mr. COONS. Mr. President, I rise today to speak both in favor of the 
passage of the bill, S. 3326, and to speak against the Coburn 
  I, first, wish to thank Leaders Reid and McConnell, as well as 
Senators Baucus and Hatch, for working together diligently to find a 
path forward for passing this bill. I wish to recognize Senator Coburn 
and Senator Menendez for being willing to work with us to get to today.
  I say with some regret that I stand to speak against the Coburn 
amendment because I respect and recognize Senator Coburn's 
determination to hold this body accountable and to find pathways 
forward to deal with our record deficit and debt. In that broader 
objective, I look forward to working with him on finding responsible 
pay-fors in future bills and in finding ways that we can steadily 
partner to reduce the deficit and to find and root out waste and abuse 
in Federal spending. But I have to say in this particular case, on this 
amendment, on this day, if we change the pay-for, we kill the bill.
  We have heard clearly from the Republican chairman of the House Ways 
and Means Committee, Mr. Camp, and from his ranking minority member, 
Congressman Levin, that they will not take up this bill if amended in 
this form, if broken and reassembled, or if sent over in any other way. 
The pressure of today and the pressure of the value, the importance of 
this bill is what I choose to speak to. I may at some point reserve 
time to speak to other issues embedded in the amendment, but I first 
wanted to speak to the underlying bill.
  I am the chairman of the African Affairs Subcommittee of the Senate 
Foreign Relations Committee, and it is, in some ways, my special honor 
and challenge to help this body grasp why the African Growth and 
Opportunity Act is important for us to reauthorize today. Specifically 
what I am speaking to is the third-country fabric provision which 
expires in September. This Chamber is about to go out of session later 
today, and every day we delay in the reauthorization of this critical 
provision costs jobs, costs opportunity, and costs the future. Let me 
speak to that for a few minutes, if I might.
  Creating American jobs and fueling our economic recovery is my top 
priority, and I know it is for many Members of this body. That is why I 
am here to talk about what we can do to strengthen our economic 
security. It may surprise my colleagues, but the truth is one of the 
best ways to look for that future opportunity is one that was 
considered among the least likely just a few years ago in Sub-Saharan 
  Access to emerging markets is critical to America's health and 
growth, and increased political stability and rising wages in an 
emerging middle class across Africa makes it the most promising 
continent for countries willing to invest in long-term partnerships 
with the United States. In AGOA--the African Growth and Opportunity 
Act--and its third-country fabric provision, the United States has 
seized this opportunity to pursue broad and mutually beneficial 
economic relationships that give American consumers and businesses 
economic security by allowing eligible countries to export apparel from 
Africa that is more affordable to the American consumer and, in so 
doing, create jobs in Africa that otherwise would be elsewhere in the 
  This key provision, as I have said, expires in September. Our delay 
in moving forward with reauthorization that has earned strong 
bipartisan support is already disrupting production for American 
apparel companies along with the supply chain on which their customers 
depend. In my view, we cannot wait to take action. America can't afford 
to turn its back on African markets, and Congress can't afford to turn 
its back on extending this provision.
  Every 3 years since 2000, Congress has unanimously passed the 
reauthorization of this provision without controversy, and it is, in my 
view, time to do so again.
  I respect Senator Coburn's concern that we must change business as 
usual in this Chamber, but the timing of this amendment and the timing 
of this concern is, to me, not wise.
  Today Secretary Clinton is in the middle of a continent-wide tour of 
African countries. She is engaging with

[[Page S5906]]

countries for strong emerging middle classes, and that offers us great 
opportunity: future economic partnership and very real political 
partnerships. From Ghana to Ethiopia to Tanzania to a half dozen other 
countries, some of the fastest growing economies in the world are in 
Sub-Saharan Africa. The seven countries that are the fastest growing 
economies in Sub-Saharan Africa are home to 350 million potential 
consumers of our products. In my view, that is why I am urging my 
colleagues to vote against the Coburn amendment and to allow us to pass 
this critically important bill today. Failing to do so, in my view, is 
bad for Africa and for America.

  Reauthorizing this provision supports the poorest African workers, 
the vast majority of them women. Senator Isakson, who is my capable and 
talented ranking minority member on the African Affairs Subcommittee, 
joined with Congressman Smith and Congresswoman Bass, who are our 
counterparts in the House, in hosting a meeting 3 months and 6 months 
ago with roughly 35 Ambassadors from all over the continent who pleaded 
with us to reauthorize this critical provision.
  The economic benefits of a strong middle class in Africa are 
obvious--a pool of new consumers hungry for American products; 
potential partners for us. And countries with flourishing middle 
classes are more likely to have strong democratic institutions, good 
governance, and low corruption. They are more likely to be stable and 
bulwarks against instability in Africa, a region that I think is vital 
to our future.
  In short, then, reauthorizing this provision and continuing our 
strong bipartisan support of tradition for AGOA is where the United 
States can continue to differentiate itself from competitors such as 
China, which recently surpassed the United States as Africa's No. 1 
trading partner. The United States has exports to Sub-Saharan Africa 
that exceeded $21 billion last year, growing at a pace that exceeds our 
exports to the rest of the world.
  Africans want to partner with us. They want to work with us, and they 
seek opportunity. This sort of bipartisanship that in the past has 
allowed this AGOA third country fabric provision to be reauthorized 
without controversy is one that I think we should embrace again today. 
So let's end the delays and reauthorize this provision.
  Mr. President, I yield 3 minutes of my time, if I might, to the 
Senator from Georgia, who would like to speak to the issue of the value 
of the African Growth and Opportunity Act.
  Mr. ISAKSON. Mr. President, may I inquire of the Chair how much of 
the proponents' time would that 3 minutes leave?
  The ACTING PRESIDENT pro tempore. Five minutes.
  Mr. ISAKSON. Thank you, Mr. President.
  The ACTING PRESIDENT pro tempore. The Senator from Georgia is 
  Mr. ISAKSON. Mr. President, I rise for just a moment to do two 
things. First of all, I spent 33 years selling houses. I have dealt 
with honest brokers, and I have dealt with brokers who were hard to 
deal with and whom I would never categorize as honest. Senator Coburn 
from Oklahoma is the most honest broker I have ever dealt with in 
politics or in selling houses. I wish to acknowledge for just a second 
exactly what he said about the process, his support for the AGOA 
provisions but his concern about the pay-for, but the fact that he 
never tried to scuttle this piece of legislation, he only tried to get 
his day in court. I respect that, and I want him to know that. If we 
all acted a little bit more like that, we would have a lot more debate 
on the floor and a lot fewer problems in terms of running our country.
  As far as AGOA, I want to say this. As the chairman and ranking 
member, as Senator Coons and I are, of the African Affairs 
Subcommittee, we travel to that continent quite a bit. One of my trips 
was to the Sudan, to Darfur, and to the South Sudan, when the 
comprehensive peace agreement was being negotiated. As this body knows, 
the South Sudan had their revolution peacefully. South Sudan became the 
newest country on the face of this Earth, and South Sudan will become, 
if AGOA passes today, one of the parties to this agreement, which is 
critical to the developing economy of the South Sudan as an independent 
nation. Further, the other nations that are included are nations that 
depend on this legislation to raise a middle class in Africa that will 
become the customers of the United States of America and our 
  I say often in my speeches about Africa that if it is true that 
Europe was the continent of the 20th century in the first 50 years and 
if it is true that Asia was the most important continent in the last 50 
years of the 20th century, Africa is the continent of the 21st century. 
This is an agreement that is important to our relationship with Africa, 
it is important to our economy, it is important to American textiles, 
and it is important to jobs in Africa.
  I commend Senator Coons for his hard work, and I intend to support 
the AGOA bill and ask all of my fellow colleagues to do the same.
  I yield back.
  The ACTING PRESIDENT pro tempore. The Senator from Oklahoma is 
  Mr. COBURN. Mr. President, it is intriguing to me. We heard the 
Senator from Delaware absolutely assure us that if we defy this, the 
House is not going to do the right thing. My conversation with Chairman 
Camp was different from that. I do not know what the timing was between 
our conversations. But it is never the right time in Washington to fix 
our problems.
  We do a lot of great things. You want to talk about job creation? Job 
creation has decreased by 1 million jobs a year in this country simply 
because we continue to add to our debt. And this bill adds to our debt. 
It is not paid for. It has another trick in there that actually charges 
more in corporate taxes just to get around pay-go.
  So the point is--and I will not have any more to say on this bill so 
we can go on and get to the other--the point is, if we stood and did 
the right thing and led this country by actually paying for something 
at the time, the House would change it--just for the very reasons the 
Senator from Delaware said. It is important. If we had a strong vote 
that said: Yes, it is important, but, by dingy, we are not going to 
keep doing the same thing that has been bankrupting this country--but 
now we use an excuse to say: Well, here is our reason why we cannot do 
what is right.
  America should spit us out of their mouth. We never find the right 
time to actually have the fiscal discipline that will solve our 
county's problems and create a viable future for our children, let 
alone African children.
  So that is a real choice today. I do not expect to win this because 
this place is not going to change until the people who are here decide 
that the future of our country is more important than anything else and 
we start acting like it. And we can do good things internationally, but 
we can do them the right way that will not put our children at risk. 
Our debt level is such that our GDP is decreased by 1 percent right 
now--it is proven--just because of the amount of debt we have.

  So we are going to pass a bill with great intentions, with which I 
agree. It will have a great result; I agree with that. We can do both. 
We can actually do better. But it is because there is not the spine in 
the Senate to stand up and make the hard choice. This country is full 
of people outside of Washington who are used to making hard choices, 
and they are doing it in this tough economic time all the time. They 
are making hard choices. We lack the intestinal fortitude to do that. 
We should have them here and us home because they know how to get it 
  So what we are going to do is we are going to do the same thing we 
have always done. We are not going to make the hard choice. We are not 
going to do the best we can do. We are going to settle for second best 
because we have an excuse not to make the hard choice. The excuse right 
now is that the House will not move. Well, I will guarantee you, if it 
as important as Senator Coons and Senator Isakson say it is, and 
Representative Smith, and we sit here and say our position is that it 
is paid for within 2 years, I will bet you by tomorrow it will be paid 
for within 2 years. But we will not ever do that because we lack the 
courage to do the hard thing, the right thing. What has that gotten us? 
It has gotten us deeper in debt, a depressed economy, an anxious 
American citizenry that has no

[[Page S5907]]

confidence about the future, which is so self-fulfilling in terms of 
driving the economy down even further.
  It is time for us to lead. This is a small issue, but if we cannot 
even pay for $200 million over 2 years, we do not deserve to be here, 
we do not deserve it, because what we are really doing--we are helping 
people in Africa, we are helping the freedom in Burma, but what we are 
really doing is taking just a little bit of freedom away from our kids. 
That is the real vote here. It is really not about money; it is about 
destroying the future prospects of this country because we refuse to 
make a hard choice.
  There can be a lot of flowery speeches about it. We can say we are 
going to do something good. I will tell you that well-intentioned 
desires by the Members of this body are what has us $16 trillion in 
  I will not spend any more time. I have the greatest respect for the 
Senator from Delaware. I know he believes in this cause. He is bigger 
than this. He can make this tough vote. He knows how big the problems 
are. If we are not going to do it now, when are we going to do it? If 
we are not going to do it on something small, when are we going to do 
  We are not going to do it, and that is what the American people get. 
That is why there is an uprising in this country to get back to the 
basics of the Constitution. That is why there are people who are 
interested--because we have mismanaged it because we will not do the 
hard part.
  Mr. President, I yield back my time.
  I will ask for the yeas and nays at the appropriate time.
  The ACTING PRESIDENT pro tempore. The Senator from Delaware is 
  Mr. COONS. Mr. President, I wish to thank my colleague from Oklahoma 
for his remarks.
  If I might just conclude my comments on this amendment by speaking in 
a little detail on the amendment and its substance.
  The Senator from Oklahoma essentially directs the administration to 
find $192 million in reductions in spending in the following agencies: 
the Department of Commerce, the Small Business Administration, the 
Export-Import Bank, the Overseas Private Investment Corporation, and 
the Trade and Development Agency.
  In my role as the chair of the African Affairs Subcommittee, we 
recently held a hearing on expanding U.S. trade opportunities in Africa 
for exactly the reasons I elucidated previously: that there is enormous 
growth, there are great opportunities across the continent. Our 
competitors from all over the world--not just China but Brazil, Russia, 
and other European countries--are expanding their investment and their 
seizure of these opportunities in a way that we are not.
  The structure of this amendment would simply declare that there is 
$200 million of waste and duplication at several important trade 
agencies and direct the administration to slash their budgets for that 
amount and then hope for the best.
  That is what Senator Coburn's proposed offset would do. These are 
agencies that promote and finance U.S. exports and help small and large 
U.S. businesses export and compete in a global market. In my view, 
exports, particularly to this market, mean jobs. So I am not convinced 
that now is the time to blindly slash our ability to export. I think we 
should instead be encouraging exports.
  In the context of the Federal budget, $192 million is a very, very 
small amount of money. I look forward to working with Senator Coburn to 
find other places where we can find reductions of this size. But this 
amendment, at this time, on this day, would kill the broader and more 
important objective of reauthorizing the African Growth and Opportunity 
Act third-party fabric provision, of moving forward with relevant Burma 
sanctions, and of moving forward with an important technical fix to 
  This is a carefully crafted compromise bill that the House will pass 
once we pass it. I urge my colleagues to vote against the Coburn 
amendment and to move forward with passage of this vital bill.
  Mr. President, I yield back the remainder of my time and yield the 

                       Cybersecurity Act of 2012

  The ACTING PRESIDENT pro tempore. Under the previous order, the time 
until 11 a.m. will be equally divided and controlled between the two 
leaders or their designees.
  The Senator from Maine is recognized.
  Ms. COLLINS. Mr. President, later this morning we will vote on 
whether to invoke cloture on a major cyber security bill. In the past 3 
days we have received letters from GEN Keith Alexander, who is the head 
of Cyber Command as well as the chief of the National Security Agency, 
from the Secretary of Homeland Security, and from the Chairman of the 
Joint Chiefs of Staff, urging us to act immediately on this important 
legislation. Let me read briefly from all three of these letters.
  General Alexander said the following:

       I am writing to express my strong support for passage of a 
     comprehensive bipartisan cyber security bill by the Senate 
     this week. The cyber threat facing the Nation is real and 
     demands immediate action. The time to act is now; we simply 
     cannot afford further delay.

  That is what General Alexander has told us.
  Secretary Napolitano wrote to us:

       I am writing to express my strong support for S. 3414, the 
     Cybersecurity Act of 2012. I can think of no more pressing 
     legislative need in our current threat environment.

  The Chairman of the Joint Chiefs of Staff, General Dempsey, wrote the 

       I am writing to add my voice to General Alexander's and 
     urge immediate passage of comprehensive cyber security 
     legislation. We must act now.

  How many more implorings do we need from our Nation's top homeland 
and military officials to act on what many believe to be the greatest 
threat that is facing our Nation? A cyber attack with catastrophic 
consequences is a threat to our national security, our economic 
prosperity and, indeed, to our very way of life. Our adversaries have 
the means to launch a cyber attack that would be devastating to our 
country. All the experts tell us, it is not a matter of if a cyber 
attack is going to be launched, it is when it is going to occur.
  So I find it incredible and indeed irresponsible that this body is 
unable to reach an agreement to allow us to move forward on this 
important legislation. It is astonishing to me that irrelevant, 
nongermane amendments have been filed to this important bill on both 
sides of the aisle. It is unacceptable that we have worked hard and 
have come up with a list of relevant and germane amendments, and yet we 
cannot seem to reach an agreement to proceed.
  American officials--our government officials--have already documented 
that our businesses are losing billions of dollars annually and 
millions of jobs due to cyber attacks, attacks that are happening on 
our government and business computers and individual computers each and 
every day.
  Yet our defenses are not there. General Alexander, who knows more 
about the cyber threat than any individual in this country, was asked 
to rank our preparedness for a large-scale cyber attack on a scale of 1 
to 10. Do you know what he said? He deemed us to be at a 3. Is a 3 
adequate to protect this country from what we know is coming, that is 
only a matter of time?
  There have been all sorts of suggestions for improving this bill. We 
have adopted many of those suggestions. Indeed, we have made major 
changes to make this bill more acceptable to those on my side of the 
aisle. And what has been our reward? To be criticized for making 
changes in the bill, for having Members on our side of the aisle, my 
side of the aisle, say, well, now it is a different bill.
  Well, it is a different bill because we took their suggestions, and 
we took the suggestions of a bipartisan group acting in good faith 
headed by Senator Kyl and Senator Whitehouse. There is much more I want 
to say on this issue. I see the chairman has arrived on the floor. I 
know opponents to the bill such as Senator Hutchison wish to speak and 
should certainly be given the right to do so. But let me say that 
rarely have I been so disappointed in the Senate's failure to come to 
grips with a threat to our country that all of these officials have 
warned us over and over again is urgent and must be addressed now. Not 
maybe in September; not probably by the end of the year; not in the 
next Congress, but now.

[[Page S5908]]

  The ACTING PRESIDENT pro tempore. The Senator from Texas is 
  Mrs. HUTCHISON. Mr. President, I wanted to get the time for our side 
and the time for the bill sponsor's side and clarify that the people on 
our side would have 15 minutes. Is that correct?
  The ACTING PRESIDENT pro tempore. The time is divided between the two 
leaders or their designees. The Republican side has approximately 9 
minutes, and the majority side has 16 minutes.
  Mrs. HUTCHISON. I wanted to clarify that there would be time for the 
opposition side. I did not know if Senator Collins is speaking for the 
majority side then or the minority side. I am trying to clarify to 
assure that the opposition is getting some equal amount of time or 
close to equal.
  Mr. LIEBERMAN. Mr. President, I understand the time is divided 
between the two leaders. But I think there is 15 minutes for the 
proponents and for those opposed. I would ask unanimous consent that 
that be the case.
  The ACTING PRESIDENT pro tempore. Is there objection?
  Ms. COLLINS. Reserving the right to object, it is my understanding 
that I am managing the time on the Republican side. I, of course, want 
to make sure that the Senator from Texas is treated fairly and is given 
an opportunity to present her views. But it was my understanding that 
the 15 minutes is allocated to me to dole out or to allocate on our 
  Mrs. HUTCHISON. Then how much time would the proponents have with 
Senator Collins and Senator Lieberman on the proponents' side?
  The ACTING PRESIDENT pro tempore. The time is divided between the two 
sides, not between the proponents and opponents.
  Mrs. HUTCHISON. How much, then, would be left on the Republican side?
  The ACTING PRESIDENT pro tempore. There is 7 minutes left on the 
Republican side. The majority side has 15.
  Mrs. HUTCHISON. Mr. President, I would ask unanimous consent that the 
opponents have at least 10 minutes.
  Ms. COLLINS. I have no objection.
  Mr. LIEBERMAN. Nor do I.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
  The Senator from Texas.
  Mrs. HUTCHISON. Mr. President, I wish to be notified when I have 5 
minutes left, because Senator McCain is expected on the floor, and if 
Senator Chambliss or others come, I would like to have the time.
  The PRESIDING OFFICER. The Chair will do so.
  Mrs. HUTCHISON. Mr. President, I rise to express my disappointment 
that we are taking a vote that is very premature. Not that we have not 
been discussing this bill for over a year. I have certainly been one of 
the first to say that we should vote on a cyber security bill. This is 
a complicated bill. It is a bill that did not get marked up in 
  In our discussions, we are talking about amendments. I want to say 
that the proponents of the bill before us have certainly been willing 
to talk and adjust and try to make changes in the bill. It is not there 
yet even though we have been meeting pretty much constantly. There are 
three different groups that have a very strong interest. All of us are 
interested in getting a cyber security bill, but none of us likes what 
is before us--well, obviously the proponents of the bill like what is 
before us.
  But two other groups are very concerned about further needs in the 
bill. Let me say that we have an alternative called SECURE IT. It is 
cosponsored by eight of the ranking members of committees and 
subcommittees that have jurisdiction over cyber security. Senators 
McCain, myself, Chambliss, Grassley, Murkowski, Coats, Burr, and 
Johnson are cosponsoring a bill that could pass the House and go to the 
  My concern with S. 3414, on which we are voting on cloture, is on the 
process, because we have not had a chance to amend this bill. The 
majority leader is attempting to invoke cloture and fill the tree so 
that we are not able to put any amendments on this bill at all. It is a 
bill that will not get 41 votes for sure. And there are many others who 
are very concerned about the substance of the bill.

  You cannot have a bill with no amendments that is this important and 
this technical. Let me state some of my concerns on the bill before us. 
First, it will actually undermine the current information sharing 
between the government and the private sector. The biggest priority we 
have is to get the private sector to the table and to make sure they 
have the ability to not only give information to the government but get 
information from the government. Furthermore, they must be able to 
share among the other industries, if they see a cyber threat, on an 
expedited basis.
  No. 2, the Department of Homeland Security would be granted authority 
over standard setting for private sector systems. That is unacceptable 
in the private sector and most certainly is not going to produce what 
is a consensus for getting the information we need. It assumes that 
government must take the adversarial role against private network 
owners in order to get cooperation when, in fact, both the government 
and the private sector share the same goals of increased cyber 
  Let me read from a couple of letters we have received with concerns 
about this bill. The American Bankers Association, the Financial 
Services Roundtable, the Consumer Bankers Association, and 6 other 
organizations say: This legislation threatens to undermine important 
cyber security protections already in place for our customers and 
institutions. It misses an opportunity to substantially improve cyber 
threat information sharing between the Federal Government and the 
private sector.
  The National Association of Manufacturers says: The creation of a new 
government-administered program in an agency yet to be named forces 
unnecessary regulatory uncertainty on the private sector.
  The defense industry groups are very concerned about not having 
direct access to the National Security Agency with whom they deal now, 
and this bill would take that away from their capabilities.
  The ACTING PRESIDENT pro tempore. The Senator has 5 minutes 
  Mrs. HUTCHISON. Let me ask my colleagues, I have reserved the 5 
minutes that I have for opponents. Is that going to change, Senator 
Lieberman? If not, I will give 2\1/2\ minutes each to Senator McCain 
and Senator Chambliss of my 5 minutes.
  Mr. LIEBERMAN. Mr. President, I think that is the situation we are 
in, because the vote is set to go off in a little more than 15 minutes. 
I have not spoken yet.
  Mrs. HUTCHISON. I will ask my colleagues, Senator McCain--I can give 
you 2\1/2\ minutes to you and Senator Chambliss. While they are going 
to their microphones, I want to say that they have been instrumental in 
trying to get a consensus bill. And they, like myself, are very 
disappointed that we are prematurely voting on a cloture motion when we 
have had no ability to amend the bill.
  I yield 2\1/2\ minutes to Senator McCain.
  The ACTING PRESIDENT pro tempore. The Senator from Arizona is 
  Mr. McCAIN. Well, Mr. President, I want to again thank Senator 
Lieberman and Senator Collins for their willingness to negotiate 
seriously. I want to thank also Senator Chambliss as well as Senator 
Hutchison and many others, Senator Kyl and others.
  We have had large meetings, small meetings, medium-sized meetings. We 
have had discussions among various groups. I believe we sort of had the 
outlines of a framework that we could have had a certain number of 
amendments that we all agreed to that would be voted on. At the same 
time, we could prevail upon some of our colleagues not to have 
nongermane amendments.
  Unfortunately, the first amendment proposed by the majority leader 
has to do with tax cuts. Look, I say to my colleagues that I think we 
have developed a framework where we can move forward with a certain 
number of germane amendments. All of us appreciate how important this 
issue is.
  I don't see the need for this vote. Cloture will not be invoked. All 
it will do is embed people in their previously held positions. What we 
should be

[[Page S5909]]

doing is continuing productive negotiations and discussions that we had 
all during yesterday, put off this cloture vote, and try to come to 
some agreement in recognition that cyber security is a vital national 
security issue. We all recognize that. We started out very much poles 
apart. I think there have been some agreements made which I view as 
significant progress.
  I regret, I say to Senator Lieberman, Senator Collins, and all my 
colleagues, that we are taking this vote when we should be spending our 
time--at least the rest of the day--setting up a framework that we can 
address cyber security during the first week we are back in September. 
But it is what it is.
  I thank Senators Lieberman and Collins for their willingness to sit 
down and negotiate. We still have significant differences, but I think 
those could have been resolved. I hope this vote doesn't have a 
chilling effect on what I think was progress that was being made.
  The ACTING PRESIDENT pro tempore. The Senator's time has expired.
  Mr. McCAIN. On issues of transparency and information sharing and 
others, there are still differences, but they have been narrowed. 
Again, I thank my colleagues for their hard work.
  The ACTING PRESIDENT pro tempore. The Senator from Georgia.
  Mr. CHAMBLISS. Mr. President, let me add to what Senator McCain has 
said. We have been working very hard with the sponsors of the bill, 
Senators Lieberman and Collins, who have been receptive and open to our 
dialog over the last several days and weeks. It is an indication, No. 
1, that everybody in this body recognizes the seriousness of this 
issue, but it is also a recognition of the complexity of this issue. 
There are about four or five committees of jurisdiction that have a 
piece of the issue of cyber security and, unfortunately, we didn't go 
through the regular order of giving all those committees the 
opportunity to go through the regular markup process. That may or may 
not have solved some of the issues we are now dealing with. But we are 
down to the final minutes before a cloture vote.
  Unfortunately, I will vote against cloture and I recommend that my 
colleagues do likewise and that we continue over this break to 
negotiate on the remaining issues we have. They have been narrowed in 
number and scope. Both sides are negotiating in good faith because we 
all understand this is an issue of such critical importance.
  The basic philosophical difference we have is that we all seek to 
protect the private sector from cyber attacks that may have a huge 
impact on life or on our economy. The issue is, primarily, does the 
government know better how to do that or does the private sector know 
better how to protect itself, as we think it does. While we understand 
the government has a role to play, we have capabilities and capacities 
within the Federal Government that the private sector doesn't have, and 
we recognize that. That is why we have been negotiating in good faith 
to try to find that common ground between the government and the 
private sector to ensure the protection of the basic critical 
infrastructure in this country.
  I thank the Chair and yield the floor.
  Mrs. HUTCHISON. Mr. President, I ask unanimous consent to have 
printed in the Record the two letters from which I read in my statement 
and an article from the Wall Street Journal this morning on this issue.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                                   August 1, 2012.
     Hon. Harry Reid,
     Majority Leader, U.S. Senate,
     U.S. Capitol, Washington, DC.
     Hon. Mitch McConnell,
     Republican Leader, U.S. Senate,
     U.S. Capitol, Washington, DC.
       Dear Majority Leader Reid and Republican Leader McConnell: 
     The financial services industry, represented by the 
     undersigned organizations, opposes the Cybersecurity Act of 
     2012 (S. 3414) in its current form. While we strongly support 
     efforts to protect the nation's critical infrastructure from 
     cyber-attacks, this legislation threatens to undermine 
     important cybersecurity protections already in place for our 
     customers and institutions, and misses an opportunity to 
     substantially improve cyber threat information-sharing 
     between the federal government and the private sector.
       Our sector recognizes the very real and ongoing threat of 
     cyber-attacks and works very hard to prevent those attacks by 
     constantly updating, and investing heavily in our security 
     systems. We work tirelessly, day and night, to block cyber-
     attacks, including working with the federal government and 
     other private sectors to share information and design 
     effective ways to mitigate cyber threats. Given this, we 
     believe any legislation passed by the Senate, and eventually 
     enacted into law, must take a balanced approach that builds 
     upon, but does not duplicate or undermine what is already in 
     place and working well in the financial sector. At the same 
     time, it should enhance Cybersecurity protections in areas 
     where they are most needed.
       There are several issues and questions raised by the 
     technical language included in the revised bill. For 
     instance, while the sponsors of the legislation have 
     attempted to design a voluntary framework for the designation 
     of ``critical infrastructure,'' the text of the bill would 
     likely create a mandatory regulatory regime that could 
     displace robust efforts already being made in the financial 
     sector to combat the risk of cyber-attacks. Additionally, the 
     government agency ``Council'' created in Title I of the bill 
     to conduct risk assessments, and set best practices for 
     protecting critical infrastructure does not provide a 
     meaningful role for sector-specific agencies that oversee 
     financial institutions. The bill does not recognize the 
     existing security standards and regulations to which 
     financial institutions are subject, including the Gramm-
     Leach-Bliley Act, nor the regular oversight and examinations 
     conducted by financial regulatory agencies. This opens the 
     door for inconsistent and potentially duplicative regulations 
     that are more than likely to become mandatory for our 
       Further, the process for designating financial systems as 
     covered critical infrastructure does not provide for 
     meaningful input of financial agencies or the private sector, 
     and this is crucially important for determining what is, in 
     fact, critical and what is not. Finally, we are concerned 
     that the changes made to the Title VII information sharing 
     provisions could actually restrict some forms of important 
     information sharing between the government and private 
     sectors, as well as decrease the current level of information 
     sharing between private entities.
       As the Senate considers S. 3414, a legislative proposal we 
     support could be considered as an amendment on the Senate 
     floor; specifically, Amendment #2581 offered by Senators 
     Hutchison and McCain, which encompasses the SECURE IT Act of 
     2012 (S. 3342). This amendment would provide necessary 
     updates and clarifications to current law that will 
     facilitate and increase cyber intelligence information 
     sharing within the private and public sectors, as well as 
     update the federal information security policy, encourage 
     research and development, and increase criminal penalties. We 
     encourage you to support this amendment, which builds upon 
     our existing regulatory structure, better protecting 
     financial institutions and our customers.
       We recognize that more needs to be done to encourage high 
     levels of cybersecurity protection across all sectors deemed 
     critical infrastructure. We would like to continue to work 
     with you and your colleagues in the Senate to pass 
     legislation that accomplishes this goal, while utilizing 
     existing regulatory requirements and ensuring a central role 
     for sector-specific agencies; this would bolster the ongoing 
     efforts of the financial services industry as we continue to 
     improve the effectiveness of our cybersecurity.
       We look forward to working with you and your colleagues on 
     this important issue.
       American Bankers Association, American Council of Life 
     Insurers, The Clearing House Association, Consumer Bankers 
     Association, Electronic Funds Transfer Association.
       Financial Services Information Sharing and Analysis Center 
     (FS-ISAC), The Financial Services Roundtable, NACHA-The 
     Electronic Payments Association, Securities Industry and 
     Financial Markets Association (SIFMA).

                                              National Association

                                             of Manufacturers,

                                                    July 25, 2012.
     Hon. Harry Reid,
     U.S. Senate, Hart Senate Office Building,
     Washington, DC.
     Hon. Mitch McConnell,
     U.S. Senate, Russell Senate Office Building,
     Washington, DC.
       Dear Majority Leader Reid and Minority Leader McConnell: On 
     behalf of the 12,000 members of the National Association of 
     Manufacturers (NAM), the largest manufacturing association in 
     the United States representing manufacturers in every 
     industrial sector and in all 50 states, I am writing to 
     express the NAM's concern with S. 3414, the Cybersecurity Act 
     of 2012 scheduled to be considered by the Senate this week 
     and reiterate our support for S. 3342, the SECURE IT Act, 
     cybersecurity legislation that includes consensus-based 
     provisions supported by manufacturers.
       As currently written, S. 3414 raises significant concerns 
     for our members. While we support increasing information 
     sharing and reducing companies' liability, the legislation 
     unfortunately does not allow manufacturers to share 
     information among themselves and also receive liability 
     protection. It requires companies to share that same 
     information jointly with a new government entity created in 
     the legislation to receive the benefit of liability 
     protection. The creation of a new government-administered 
     program in an agency yet-to-be-named forces unnecessary 
     regulatory uncertainty on the private sector, creates a 
     system that allows for new, overly prescriptive regulations, 
     and is a disincentive to share information.
       NAM members are also concerned that owners and operators of 
     critical infrastructure would be subject to cybersecurity 
     assessments by third-party auditors who are granted 
     unfettered access to company information. This provision 
     creates economic uncertainty as manufacturers are concerned 
     that the release of proprietary information

[[Page S5910]]

     to third parties could actually create new security risks. 
     Manufacturers are already subject to agency and sector-
     specific regulations and requirements. They have well-
     developed compliance processes to improve their systems. More 
     government mandates are unnecessary and would quickly become 
       Manufacturers through their comprehensive and connected 
     relationships with customers, vendors, suppliers, and 
     governments are entrusted with vast amounts of data. They 
     hold the responsibility of securing this data, the networks 
     on which it runs, and the facilities and machinery they 
     control at the highest priority level. Manufacturers know the 
     economic security of the United States is directly related to 
     our cybersecurity. The NAM and all manufacturers remain 
     intensely committed to securing our nation's 
     cyberinfrastructure and we look forward to working with you 
     toward this goal.

                                              Dorothy Coleman,

                                                   Vice President,
     Tax and Domestic Economic Policy.

              [From the Wall Street Journal, Aug. 1, 2012]

                           Cyber Hill Battle

Searching for a common sense defense against a ``digital Pearl Harbor''

       Every Washington politician and his favorite lobbyist claim 
     to want to shore up America's cyber-defenses. So naturally 
     Congress is mucking up efforts to protect financial systems 
     and power grids from hackers, terrorists or rogue states.
       The Senate is due to take up cyber-security legislation 
     this week before its summer recess. The goal ought to be to 
     find common ground with a modest, bipartisan bill passed by 
     the House of Representatives in May. In this instance a delay 
     to work out a compromise in the autumn is preferable to a 
     hasty vote.
       The Senate debate so far hasn't been encouraging. The White 
     House supports legislation from Joe Lieberman, the 
     Connecticut Independent, and Maine Republican Susan Collins. 
     Their Cybersecurity Act of 2012 expands government oversight 
     of private networks. Without further substantial changes, the 
     bill has little shot of getting through a House-Senate 
       John McCain, the Arizona Republican, has offered better 
     alternatives. He wants to give companies a legal avenue to 
     draw on the government's cyber expertise or share information 
     about cyber threats with the FBI or National Security Agency. 
     As in the House's Cyber Intelligence Sharing and Protection 
     Act, this cooperation would be voluntary.
       The Lieberman bill brings government compulsion. The 
     Department of Homeland Security--that nimble bureaucracy--
     would draw up and enforce new ``minimum'' cyber-security 
     standards for private business. This mandate adds costs for 
     government and the private economy. The same folks who give 
     you invasive airport screening will now poke around IT 
     departments. No wonder the Chamber of Commerce wants Homeland 
     Security to keep its hands off ``our junk,'' so to speak.
       Mr. Lieberman has softened some provisions. He dropped a 
     mandate for private facilities to upgrade their cyber-
     security as prescribed by government. He took out a ``kill 
     switch'' that lets the President shut down the Internet in an 
     emergency. Yet he isn't going to win bipartisan support in 
     both houses as long as any new standards for privately owned 
     technology aren't voluntary.
       Heeding the ACLU, the White House and Mr. Lieberman want 
     strict limits on how government agencies can use intelligence 
     garnered through the information-sharing program. Such 
     artificial walls were in place before 9/11, which was why the 
     CIA couldn't tell the FBI about suspected terrorists enrolled 
     in American flight-training schools. The House and McCain 
     versions allow the feds to act on information about, say, 
     Iran's cyber-terror plans.
       The White House cited privacy grounds in threatening to 
     veto the House bill. Call us naive, but we don't see how the 
     voluntary sharing of selective data related to legally 
     defined cyber threats constitutes an Orwellian surveillance 
       The House and McCain cyber-security proposals offer limited 
     solutions to guard against a ``digital Pearl Harbor.'' In a 
     world of fast-changing technology, less is better policy, and 
     in this case it stands a far better chance of becoming the 
     law of the land.

  Mr. KYL. Mr. President, all of us recognize the need to strengthen 
our cyber security defense to protect our defense industrial base, 
financial sector, and government networks from nation states and 
independent hackers. GEN Keith Alexander, commander of the U.S. Cyber 
Command, said that he rates U.S. preparedness at 3 on a scale of 1 to 
10. So it is important that Congress act responsibly to get this right.
  I voted against invoking cloture on the cyber security bill because I 
believe cloture was filed too early. This is vast, far-reaching 
legislation that requires ample consideration time. Two days isn't 
enough. Moreover, Senators weren't even given a chance to offer 
amendments to improve the legislation, and the legislation wasn't 
marked up by a relevant committee.
  I believe we can ultimately come together to find enough common 
ground so that we can pass a bill that can get through a House-Senate 
conference committee.
  We have come a long way since talks began, and the negotiators have 
spent an enormous amount of time working on two key issues: critical 
infrastructure and information sharing between the government and the 
private sector. I am confident the good will exists to work out these 
  To that end, it is my hope that we who are involved in the bipartisan 
negotiations can use the month of August to continue. Cyber security 
isn't a Republican or a Democratic issue. Let's work together to pass a 
bipartisan bill that the President can sign into law.
  Ms. SNOWE. Mr. President, I rise today to express my strong support 
for finding a path to legislation that will at long last confront our 
Nation's 21st-century vulnerability to cyber crime, global cyber 
espionage, and cyber attacks. This legislation has been a long time in 
the making, and over the last several years I have been privileged to 
work with colleagues on the Senate Intelligence and Commerce Committees 
to address some of these consequential matters, including Senator 
Rockefeller, whom I collaborated with closely on cyber security 
legislation that passed the Commerce Committee unanimously in 2010; 
Senator Hutchison, who has worked tirelessly with us on these issues as 
ranking member on the Commerce Committee; Senators Mikulski and 
Whitehouse, with whom I served on the Intelligence Committee's Cyber 
Security Task Force; Senator Warner, who has joined me in underscoring 
the urgency of considering cyber security legislation in a transparent 
and nonpartisan manner; and Senators Lieberman and Collins, who have 
led the effort to craft this revised cyber security bill.
  Nothing less than the very foundation of our national and economic 
security is at risk, and it is essential that we be prepared to defend 
against cyber activity that could cause catastrophic damage and loss of 
life in this country.
  Still, some of my colleagues will undoubtedly make poignant and 
convincing arguments for why this Chamber should delay consideration of 
a comprehensive cyber security bill--stressing the complexity of the 
questions involved, the competing jurisdictions, and the many unknowns 
associated with a medium where innovation in functionality will 
continue to outpace innovation in security.
  However, last fall the National Counterintelligence Executive warned 
that the rapidly accelerating rate of change in information technology 
and communications is likely to ``disrupt security procedures and 
provide new openings for collection of sensitive U.S. economic and 
technology information.'' In fact, the counterintelligence report cited 
Cisco Systems studies predicting that the number of devices such as 
smartphones and laptops in operation worldwide will increase from about 
12.5 billion in 2010 to 25 billion in 2015.
  Thus, as a result of this proliferation in the number of operating 
systems connected to the Internet, the Counterintelligence Executive 
has assessed that ``the growing complexity and density of cyber space 
will provide more cover for remote cyber intruders and make it even 
harder than today to establish attribution for these incidents.''
  So as I said during the Senate Commerce Committee's bipartisan, 
unanimous markup of the Rockefeller-Snowe cyber security legislation 
over 2 years ago in early 2010, when it comes to the threat we face in 
cyber space, time is not on our side, and this is further evidence of 
that irrefutable fact.
  This Congress could spend another 2 years debating the merits of 
various approaches and continuing to operate based on a reactive 
hodgepodge of government directives and bureaucratic confusion. But at 
the end of the day, the only way to begin preparing our Nation to 
defend against this emerging threat is to allow the Senate to work its 
will in a full and unrestrained debate.
  In June, Senator Warner and I urged the Senate's leadership to reach 
an agreement ensuring cyber security legislation receives an open 
debate on the Senate floor during the July work period. In calling for 
a fair amendment process, we in fact were simply repeating the cyber 
security debate commitment made by the majority leader at

[[Page S5911]]

the start of the year when he said that ``it is essential that we have 
a thorough and open debate on the Senate floor, including consideration 
of amendments to perfect the legislation, insert additional provisions 
where the majority of the Senate supports them, and remove provisions 
if such support does not exist.''
  So I welcomed the majority leader's commitment to allow an open 
amendment process, and I joined my colleagues in voting to invoke 
cloture on the motion to proceed to the bill. As I have said 
repeatedly, only a bipartisan agreement will achieve our shared goal of 
passing cyber security legislation to prevent a devastating cyber 
  That process must begin now, and as one who has served on the Select 
Committee on Intelligence for the last decade, I believe it is 
essential to begin by elucidating the nature of the indisputable threat 
we now face.
  In June 2010, the Intelligence Committee's Cyber Security Task Force, 
on which I served along with Senators Whitehouse and Mikulski, 
delivered its classified final report illustrating the myriad of 
challenges to the security of our physical, economic, and social 
systems in cyber space. I urge my colleagues to review this classified 
  As for some examples we can discuss in an open forum such as this, I 
encourage my colleagues to read the National Counterintelligence 
Executive's unclassified report to Congress entitled ``Foreign Spies 
Stealing U.S. Economic Secrets in Cyberspace.'' The Counterintelligence 
Executive's report, which was released last fall, is truly the 
authoritative document when it comes to portraying in detail the nature 
of the threat and its ramifications on our lives and--increasingly--our 
livelihoods. s
  The report is incredibly eye-opening and represents the first time in 
which our government has explicitly named China and Russia as the 
primary points of origin for much of the malicious cyber activity 
targeting U.S. interests. In fact, the report states that the 
Governments of China and Russia ``remain aggressive and capable 
collectors of sensitive U.S. economic information and technologies, 
particularly in cyberspace'' and it links much of the recent onslaught 
of computer network intrusions as originating from Internet Protocol 
addresses in these two countries.
  For example, the Counterintelligence Executive's report cites a 
February 2011 study attributing an intrusion set called ``Night 
Dragon'' to an IP address located in China. According to the report, 
these cyber intruders were able to exfiltrate data from computer 
systems of global oil, energy, and petrochemical companies with the 
goal of obtaining information on ``sensitive competitive proprietary 
operations and on financing of oil and gas field bids.'' As the report 
notes, such activity on behalf of our economic rivals undermines the 
U.S. economy's ability to ``create jobs, generate revenues, foster 
innovation, and lay the economic foundation for prosperity and national 
security.'' And the report estimates that our losses from economic 
espionage range from ``$2 billion to $400 billion or more a year,'' 
reflecting the scarcity of data and underscoring how little we 
currently understand about the total effect these malicious cyber 
intrusions have on our economic future.
  In addition to the threat posed to our Nation's prosperity, the 
Counterintelligence Executive's report noted that foreign collectors 
are stealing information ``on the full array of U.S. military 
technologies in use or under development,'' including marine systems, 
aerospace and aeronautics technologies used in intelligence gathering 
and kinetic operations, such as UAVs, and dual-use technologies used 
for generating energy.
  In April, James Lewis of the Center for Strategic and International 
Studies testified in an unclassified Senate hearing that the delays and 
cost overruns in the F-35 program may be the result of cyber espionage, 
which in turn could be linked to the rapid development of China's J-20 
stealth fighter. He went on to note that Iran has also been pursuing 
the acquisition of cyber attack capabilities, noting that FBI Director 
Mueller has testified that Iran appears increasingly willing to carry 
out such attacks against the United States and its allies.
  As Director of National Intelligence James Clapper remarked during 
his unclassified testimony to the Select Committee on Intelligence in 
January, we are observing an ``increased breadth and sophistication of 
computer network operations by both state and nonstate actors'' and 
despite our best efforts ``cyber intruders continue to explore new 
means to circumvent defensive measures.'' To illustrate this point, 
Director Clapper cited the well-publicized intrusions into the NASDAQ 
networks and the breach of computer security firm RSA in March 2011, 
which led to the exfiltration of data on the algorithms used in its 
authentication system and, subsequently, access to the systems of a 
U.S. defense contractor.
  Consequently, as Director Clapper put it, one of our greatest 
strategic challenges in the coming years will be ``providing timely, 
actionable warning of cyber threats and incidents, such as identifying 
past or present security breaches, definitively attributing them, and 
accurately distinguishing between cyber espionage intrusions and 
potentially disruptive cyber attacks.''
  As I listened to Director Clapper's assessment of the cyber threat at 
the Intelligence Committee's annual unclassified worldwide threat 
hearing this past January, I was reminded of similar statements by 
several of his predecessors. In fact, on February 2, 2010, then DNI 
Dennis Blair provided the following cautionary warning:

       This cyber domain is exponentially expanding our ability to 
     create and share knowledge, but it is also enabling those who 
     would steal, corrupt, harm or destroy the public and private 
     assets vital to our national interests. The recent intrusions 
     reported by Google are a stark reminder of the importance of 
     these cyber assets, and a wake-up call to those who have not 
     taken this problem seriously.

  Similarly, the preceding year, on February 12, 2009, Director Blair 

       Over the past year, cyber exploitation activity has grown 
     more sophisticated, more targeted, and more serious. The 
     Intelligence Community expects these trends to continue in 
     the coming year.

  As far back as February 5, 2008, then-DNI Michael McConnell warned:

       It is no longer sufficient for the US Government to 
     discover cyber intrusions in its networks, clean up the 
     damage, and take legal or political steps to deter further 
     intrusions. We must take proactive measures to detect and 
     prevent intrusions from whatever source, as they happen, and 
     before they can do significant damage.

  It was in response to this cavalcade of wake-up calls and threat 
briefings that Senator Rockefeller and I, in our role as crossover 
members of both the Intelligence and Commerce committees, initiated a 
series of hearings before the Commerce Committee to begin considering 
proposals for collaborating with the private sector to prevent and 
defend against attacks in cyber space.
  On April 1, 2009, Senator Rockefeller and I introduced one of the 
first bills aimed at tackling some of our Nation's most vexing 
challenges when it comes to this issue. Our legislation, the 
Cybersecurity Act of 2010, was meant to focus the Senate's efforts on 
several key priorities, including conducting risk assessments to 
identify and evaluate cyber threats and vulnerabilities, clarifying the 
responsibilities of government and private sector stakeholders by 
creating a public-private information sharing clearinghouse, and 
investing in cyber research and development to expand activities in 
critical fields like secure coding, which is indispensable in 
minimizing our vulnerability to cyber intrusions. Our bill also sought 
to expand efforts to recruit the next generation of ``cyber warriors'' 
to implement these defenses through the creation of a cyber 
scholarship-for-service program.
  Our cyber security bill was one of the first attempts to confront our 
vulnerabilities in cyber space, and with approximately 90 percent of 
the Nation's digital infrastructure controlled by private industry, we 
made a concerted effort to collaborate with businesses and ensure our 
bill incorporated input from experts covering the complete spectrum of 
this issue. Along the way Senator Rockefeller and I have worked 
together closely, holding meetings with the White House Cyber Security 
Coordinator, conducting hearings at the Commerce Committee with experts 
like James Lewis of the Center for Strategic and International Studies

[[Page S5912]]

and former Director of National Intelligence Mike McConnell, and 
collaborating on a Wall Street Journal op-ed entitled ``Now Is the Time 
to Prepare for Cyberwar.''
  As a result, our legislation was marked up in a unanimous, bipartisan 
effort by the Commerce Committee in 2010. Moreover, our proposal 
received praise from a major telecommunications industry leader who 
said our 2009 bill ``puts the nation on a much stronger footing'' to 
confront the cyber threat and a leading telecom association, which said 
that ``passage of the Rockefeller-Snowe Cybersecurity Act is a 
necessary and important step in protecting our national 
  Additionally, in February 2011, following the Egyptian Government's 
attempt to quell public protests by denying access to the Internet, I 
pledged to oppose so-called ``Internet kill switch'' authority here in 
the United States. Consequently, I was pleased when earlier this year 
Senators on both sides of the aisle joined me in protecting critical 
first amendment rights by agreeing to reject any provisions that could 
be construed as giving our government new authority to restrict access 
to the Internet.
  Thus, although I am not a cosponsor of the legislation before the 
Senate, I recognize that this proposal reflects many of the core ideas 
first offered by Senator Rockefeller and I in 2009, and I commend my 
colleagues for working with us over the last few years to ensure that 
these essential provisions were made part of the revised cyber security 
  Specifically, I support steps taken in the revised bill that require 
collaboration between the government and the private sector to share 
information about cyber threats and identify vulnerabilities to protect 
networks. Such information sharing and sector-by-sector cyber risk 
assessments were a fundamental part of the Rockefeller-Snowe bill in 
2009. Likewise, I support provisions establishing an industry-led--
rather than government-led--process for identifying best practices, 
standards, and guidelines to effectively remediate or mitigate cyber 
risks, with civil liability protection for those owners and operators 
of critical infrastructure who have implemented these standards. And I 
support the cyber outreach, awareness, recruitment, and workforce 
development provisions that were an essential component of our original 
  That being said, the private sector is rightly concerned about the 
prospect of over-regulation by the Federal Government. Specifically, 
many of my colleagues on the Republican side of the aisle have 
expressed concerns that passage of a comprehensive cyber security bill 
could lead to more government redtape, stifling innovation and impeding 
  Yet I firmly believe these are not insurmountable challenges, and I 
am optimistic that there is tremendous potential for the Senate to 
forge a viable solution that incentivizes private sector participation 
and collaboration.
  Although the revised bill takes steps to incentivize the adoption of 
voluntary cyber security practices, many continue to voice concerns 
when it comes to the provisions governing ``covered critical 
infrastructure,'' or in other words, those information systems for our 
transportation, first responders, airports, hospitals, electric 
utilities, water systems, and financial networks whose disruption would 
interrupt life-sustaining services, cause catastrophic economic damage, 
or severely degrade national security.
  I support an effort to raise the bar when it comes to cyber security 
standards for our most critical, life-sustaining systems. Yet in order 
to pass a bill that has the momentum to become law, we absolutely must 
find some middle ground with those who have raised valid concerns about 
the potential of over-regulation by the Federal Government.
  For example, I have heard concerns from the private sector that 
subsection 103(g) of the revised bill may cause confusion and has led 
many to believe that the voluntary rules will eventually be forced upon 
companies who may already have strong security practices in place. 
Specifically, this subsection mandates that all Federal agencies with 
responsibilities for regulating critical infrastructure must submit an 
annual report justifying why they have not acted to make the voluntary 
standards proposed through this legislation mandatory within their 
jurisdiction. To remove any confusion about the intent of the bill, I 
am working with Senator Warner and several of my colleagues on 
straightforward language to clarify that nothing in the bill should be 
construed to increase, decrease, or otherwise alter the existing 
authority of any Federal agency when it comes to the security of 
critical cyber infrastructure.
  Likewise, I share some of my colleagues' concerns that provisions 
designed to bolster the Department of Homeland Security's role in 
managing efforts to secure and protect critical infrastructure networks 
could lead to an unsustainable DHS bureaucracy. Such provisions were 
not part of the original Rockefeller-Snowe bill, which took a different 
approach by creating a Senate-confirmed National Cybersecurity Adviser 
within the Executive Office of the President.
  Yet, again, this hurdle is not insurmountable--and I welcome the 
establishment of the National Cybersecurity Council in the revised bill 
as an interagency body with members from the Departments of Commerce, 
Defense, Justice, the Intelligence Community, and other appropriate 
Federal agencies--in addition to DHS--to assess risks and ensure the 
primary regulators for each critical system are involved in any final 
  Furthermore, I remain concerned that the bill lacks specific 
provisions to assist small businesses in complying with any new cyber 
security standards adopted by Federal agencies with responsibilities 
for regulating the security of critical infrastructure. Small 
businesses remain the primary job creators in this country, responsible 
for more than two-thirds of all new jobs created. As ranking member of 
the Senate Committee on Small Business and Entrepreneurship, I have 
advocated tirelessly for targeted regulatory reform because there is no 
doubt that regulations are stifling small business. Small firms with 
fewer than 20 employees bear a disproportionate burden of complying 
with Federal regulations. These small firms pay an annual regulatory 
cost of $10,585 per employee, which is 36 percent higher than the 
regulatory cost facing larger firms.
  In response, I have proposed several amendments to ensure the Small 
Business Administration and other constructive stakeholders are 
involved in analyzing the implications of cyber security performance 
standards on small businesses and recommending options for mitigating 
any costs or unnecessary burdens. And I have filed an amendment that 
would identify the challenges that prevent the Federal Government from 
leveraging the capabilities of small businesses to perform classified 
cyber security work and to develop security-cleared cyber workers.
  I have also filed amendments that ensure sector specific regulators 
have the technical resources and staffing to adequately address cyber 
threats facing their industry and that focus research efforts on 
promising technologies that will secure our wireless infrastructure. 
Additionally, I have joined my colleague, Senator Toomey, in offering 
an amendment that would implement a national data security breach 
standard to simplify compliance for businesses and notifications to 
consumers to reduce undue burden and confusion. More than 540 million 
records have been reported breached since 2005 according to the Privacy 
Rights Clearinghouse, and research from Symantec estimates the average 
organizational cost of a breach is approximately $5.5 million.
  Finally, I have filed an amendment to prohibit our government from 
signing new trade agreements with countries that have been identified 
by the National Counterintelligence Executive as using cyber tools to 
steal our trade secrets and threaten our economic security. It is time 
to send the message that these malicious activities will come with a 
price, and I view this as a sound and practical means of deterrence.
  So again let me reiterate the imperative fact that time is not on our 
side. As former Secretary of Homeland Security Michael Chertoff and 
several of his intelligence community and defense colleagues recently 
wrote in a letter to our Senate leadership, the

[[Page S5913]]

risk of failing to act on comprehensive cyber security legislation is 
``simply too great considering the reality of our interconnected and 
interdependent world, and the impact that can result from the failure 
of even one part of the network across a wide range of physical, 
economic and social systems.''
  Therefore, as I wrote in a letter to the majority and minority 
leaders in June, ``given the nature of the threat we face . . . it is 
essential that we not miss an opportunity to consider cyber security 
legislation in a non-partisan manner and pass a bill that has the 
momentum to become law.''
  Now is the moment to prove that the Senate is capable of forging a 
viable solution to address what Director Clapper called ``a critical 
national and economic security concern.'' I welcome this debate on what 
I view as one of the defining national security challenges of our 
generation, and I urge my colleagues to join me in working for passage 
of comprehensive cyber security legislation.
  Mr. AKAKA. Mr. President, today I wish to urge my colleagues to allow 
an up-or-down vote on the Cybersecurity Act of 2012, S. 3414, and to 
support my amendment to further strengthen the privacy safeguards in 
this important legislation.
  National security experts from both parties have warned us about the 
very serious danger of a major cyber attack. It is not a matter of if, 
but when it will occur. As someone who witnessed the attack on Pearl 
Harbor and was in Washington, DC, on September 11, 2001, it is 
frightening to know that in our modern world where much of our critical 
infrastructure and security systems are controlled by computers, a 
successful attack on a critical system could lead to more loss of life, 
injury, and damage than those terrible events. We have a moral duty to 
act immediately. That is why I urge my colleagues to put partisan 
differences aside and pass the Cybersecurity Act of 2012 for the safety 
of our Nation.
  As a senior member of the Senate Homeland Security and Governmental 
Affairs Committee, I know that Chairman Lieberman and Ranking Member 
Collins have been working diligently for several years to get this bill 
to the floor for a vote. Commerce Committee Chairman Rockefeller and 
Intelligence Committee Chairman Feinstein have also been working 
tirelessly to advance this legislation. While I continue to support the 
even stronger critical infrastructure protections in the original cyber 
security bill introduced in February, I accept the revisions the bill 
sponsors have made to accommodate concerns raised by several of my 
  I want to thank the bill sponsors for working with me during this 
lengthy process to make improvements to the legislation. In order for 
our country to have robust cyber security capabilities, we must have a 
talented and well-trained cyber workforce. I am pleased that the bill 
incorporates my recommendations to strengthen title IV of the bill, 
which provide the necessary tools to build a first-class cyber 
workforce while maintaining employee and whistleblower protections. 
Furthermore, these workforce provisions establish a supervisory 
training program that will help managers properly evaluate their cyber 
  I also want to commend the sponsors for the marked improvement of the 
underlying privacy and civil liberties protections in the bill. I 
collaborated with Senators Franken, Durbin, Wyden, Sanders, Coons, and 
Blumenthal to strengthen protections in the information-sharing 
provisions of the bill, which allow companies to share cyber security 
information with each other and the government. We worked with privacy 
and civil liberties groups from across the political spectrum on a 
series of recommendations, most of which were accepted by the bill's 
  With these changes, the privacy and civil liberties protections in 
the Cybersecurity Act are much better than the protections contained in 
the Cyber Intelligence Sharing and Protection Act that recently passed 
the House, and the SECURE IT Act that has been introduced in the 
Senate. However, I am still pushing for further improvements to enhance 
the privacy and civil liberties protections in the Cybersecurity Act.
  I have offered an amendment that seeks to strengthen the underlying 
legal framework protecting Americans' personal information held in the 
computer systems that the Cybersecurity Act seeks to protect. My 
amendment will close loopholes in Federal privacy requirements, 
centralize Federal oversight of existing privacy protections, and 
reinstate basic remedies for privacy violations. My amendment, which 
reflects input from the bill's sponsors, would make four small changes 
that would have significant benefits to American's privacy and data 
  First, my amendment would address Federal agencies' uneven 
implementation of Office of Management Budget, OMB, guidance on 
preventing breaches of private information and notifying affected 
individuals when they do occur. In testimony this week before the 
Oversight of Government Management Subcommittee that I chair, we 
learned that the agency that oversees the Thrift Savings Plan, TSP, had 
no breach notification plan in place at the time of the recent breach 
involving 123,000 participating Federal employees. Specifically, my 
amendment would strengthen data breach notification requirements for 
Federal agencies by directing OMB to establish requirements for 
agencies to provide timely notification to individuals whose personal 
information was compromised. It would require agency heads to comply 
with the policies, and mandate that OMB report to Congress annually on 
agencies' compliance.
  Second, my amendment would provide basic transparency when agencies 
rely on commercial databases. Agencies frequently use private sector 
databases for law enforcement and other purposes that affect 
individuals' rights, but this is not covered by Federal privacy laws. 
My amendment would require agencies to conduct privacy impact 
assessments on agencies' use of commercial sources of Americans' 
private information so that individuals have appropriate protections 
such as access, notice, correction, and purpose limitations.
  Third, my amendment would fill a hole in the government's privacy 
leadership. Despite OMB's mandate to oversee privacy policies 
government-wide, it lacks a chief privacy officer. As a result, 
responsibility for protecting privacy is fragmented and agencies' 
compliance with privacy-related statutes and regulations is 
inconsistent. Furthermore, the administration lacks a representative on 
international privacy issues. My amendment would direct OMB to 
designate a central officer within OMB who would have authority over 
privacy across the government. This officer would also be responsible 
for assessing the privacy impact of the new information-sharing 
provisions in the cyber security bill.
  Finally, it would address the Supreme Court's ruling restricting 
Privacy Act remedies earlier this year that has by many experts' 
accounts rendered the Privacy Act toothless. In Federal Aviation 
Administration v. Cooper, the Social Security Administration violated 
the Privacy Act by sharing the plaintiff's HIV status with other 
Federal agencies. The Court concluded that the plaintiff could not 
recover damages for emotional distress because Privacy Act damages are 
limited to economic harm. My amendment would heed the call of scholars 
across the political spectrum to amend the Privacy Act and fix this 
decision. It would also clarify that in the event of a Federal 
violation in the information-sharing title of the bill, a victim would 
be entitled to recovery for the same types of noneconomic harms.
  My amendment will further strengthen the privacy and civil liberties 
protections in the cyber security bill while enhancing the security of 
personal information held by the Federal Government. I urge my 
colleagues to allow an up-or-down vote on the Cybersecurity Act, which 
is so critical to our Nation's safety, and to support my amendment.
  Mr. LEAHY. Mr. President, today, the Senate will conclude debate on 
the Cybersecurity Act of 2012, S. 3414. Developing a comprehensive 
strategy for cybersecurity is one of the most pressing challenges 
facing our Nation. I commend President Obama for his commitment to 
addressing this national security issue. I also commend the majority 
leader and the bill's sponsors for their work on this pressing matter.
  I share the President's view that updates to our laws are urgently 

[[Page S5914]]

to keep pace with the many threats that Americans face in cyberspace. 
For that reason, I will support the motion for cloture on this bill. 
But, I do so with major reservations about the bill in its current form 
because this legislation does not address many of the key priories that 
must be a part of our national strategy for cybersecurity.
  A legislative response to the growing threat of cyber crime must be a 
part of our debate about cyber security. Protecting American consumers 
and businesses from cyber crime and other threats in cyber space is a 
top priority of the Judiciary Committee. That is why I filed an 
amendment to the bill to strengthen our Nation's cyber crime laws, 
which takes several important steps to combat cyber crime. The 
amendment, among other things, updates the Federal RICO statute to add 
violations of the Computer Fraud and Abuse Act to the definition of 
racketeering activity; strengthens the legal tools available to law 
enforcement to protect our Nation's critical infrastructure by making 
it a felony to damage a computer that manages or controls national 
defense or other critical infrastructure information; and streamlines 
and enhances the penalty structure under the Computer Fraud and Abuse 
Act. This cyber crime amendment incorporates many of the proposals that 
were recommended in the cyber security proposal that President Obama 
delivered to Congress last May. The Judiciary Committee favorably 
reported these proposals in September as part of my Personal Data 
Privacy and Security Act. These updates to our criminal laws are 
urgently needed to keep pace with the cunning of cyber thieves and the 
many emerging threats to American's safety in cyber space. These 
measures must be included in any cyber security legislation the Senate 
  In the digital age, we must also update our digital privacy laws so 
that Americans will have better safeguards for their electronic 
communications. That is why I filed an amendment to the bill that makes 
commonsense updates to two vital digital privacy laws that I authored 
several years ago--the Video Privacy Protection Act, VPPA, and the 
Electronic Communications Privacy Act, ECPA. The amendment would update 
the Video Privacy Protection Act to permit consumers to provide a one-
time consent for video service providers to share their video viewing 
information with third parties via the Internet. This update will help 
the VPPA keep pace with how most Americans view and share videos 
today--on the Internet--while also requiring that video service 
providers provide clear and conspicuous notice that the consent to 
share video viewing information can be withdrawn at anytime. The 
amendment also updates the Electronic Communications Privacy Act to 
prohibit service providers from voluntarily disclosing the contents of 
Americans' e-mails or other electronic communications to the 
Government, unless the Government obtains a search warrant based on 
probable cause. There are appropriate exceptions to this prohibition 
under current law, including when a customer provides consent or when 
disclosure to law enforcement is necessary to address certain criminal 
activity. I am also mindful of the need to ensure that law enforcement 
can do their jobs effectively. The safeguards and exceptions in this 
provision were designed to ensure that appropriate privacy protections 
do not undermine the ability of law enforcement to keep us safe.
  I also filed a bipartisan amendment to promote cyber research and 
development in Vermont and elsewhere across the Nation. This amendment 
improves section 301 of the bill by clarifying that the White House's 
Office of Science and Technology Policy's new test bed program should 
build upon existing work on cybersecurity test beds by the Department 
of Homeland Security in its Science and Technology Directorate. The 
amendment also expands the proposed test beds program to include 
funding for the military academies and senior military colleges to 
participate. Senator Hoeven joined me in proposing this improvement to 
the bill, and we both believe that it is important for these 
institutions, which have such a prominent role in cultivating the next 
generation of security leaders, to develop tools to combat the next 
generation's security threats.
  Comprehensive cyber security legislation must also respond to the 
alarming number of data security breaches that threaten the privacy and 
security of American consumers and businesses today. The troubling data 
breaches at Sony, Epsilon, and Lockheed are recent reminders that new 
tools are needed to protect us from the growing threats of data 
breaches and identity theft. In May 2011, the Obama administration 
submitted a data breach proposal that adopted the carefully balanced 
framework of data privacy and security legislation that I have 
introduced--and that this Judiciary Committee has favorably reported--
several times. My data breach amendment would establish a single 
nationwide standard for data breach notification. My data security 
amendment would require that companies that maintain databases with 
Americans' sensitive personal information establish and implement data 
privacy and security programs, so that data breaches do not occur in 
the first place. I filed these amendments because Congress must address 
the threat of data security breaches and make these long overdue 
privacy protections available to American consumers and businesses.
  The threats to our privacy and security in cyber space are real, and 
these threats will not go away simply because the Congress fails to 
act. I lament the fact that a long-overdue debate on cybersecurity 
legislation has become embroiled in a partisan stalemate. While there 
are legitimate differences on how we must confront this threat, 
Democrats, Republicans, and Independents alike are put at risk if we do 
not do so. We must find a way to work together to confront this 
national challenge. I hope we will see more progress on overcoming 
differences on this issue in the weeks ahead. I also hope the sponsors 
of this bill will include the priorities I have outlined as part of any 
future comprehensive cyber security bill. Again, I commend the 
President and all Senators on both sides of the aisle who have worked 
to address this important issue. I also thank the many privacy, civil 
liberties, and technology organizations that have supported my 
amendments to this bill.
  I ask that a copy of three letters I have received in support of 
several of my amendments to the bill be printed in the Record following 
my full remarks.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

     Hon. Harry Reid,
     Senate Majority Leader.
     Hon. Mitch McConnell,
     Senate Minority Leader.
       Dear Leader Reid and Leader McConnell: as the Senate 
     considers cybersecurity legislation, we urge you to make in 
     order and to support an amendment that Chairman Leahy has 
     introduced that would update a key privacy law that is 
     critical to business, government investigators and ordinary 
       Chairman Leahy's amendment #2580 addresses the Electronic 
     Communications Privacy Act (ECPA), a law that Chairman Leahy 
     himself wrote and guided through the Senate in 1986. ECPA was 
     a forward-looking statute when enacted. However, technology 
     has advanced dramatically since 1986, and ECPA has been 
       As a result, ECPA is a patchwork of confusing standards 
     that have been interpreted inconsistently by the courts, 
     creating uncertainty for service providers, for law 
     enforcement agencies, and for the hundreds of millions of 
     Americans who use mobile phones and the Internet. Moreover, 
     the Sixth Circuit Court of Appeals has held that a provision 
     of ECPA is unconstitutional because it allows the government 
     to compel a service provider to disclose the content of 
     private communications without a warrant.
       Chairman Leahy's amendment would make it clear that, except 
     in emergencies, or under other existing exceptions, the 
     government must use a warrant in order to compel a service 
     provider to disclose the content of emails, texts or other 
     private material stored by the service provider on behalf of 
     its users.
       Chairman Leahy's amendment would create a more level 
     playing field for technology. It would cure the 
     constitutional defect identified by the Sixth Circuit. It 
     would provide clarity and certainty to law enforcement 
     agencies at all levels, to business and entrepreneurs, and to 
     individuals who rely on online services to create, 
     communicate and store personal and proprietary data. These 
     protections for content are consistent with an ECPA reform 
     principle advanced by the Digital Due Process coalition,, a broad-based coalition of 
     companies, privacy groups, think tanks, and academics.
       For Internet and communications companies competing in a 
     global marketplace, and

[[Page S5915]]

     for citizens who have woven these technologies into their 
     daily lives, as well as for government agencies that rely on 
     electronic evidence, the protections for content in the Leahy 
     amendment would represent an important step forward for 
     privacy protection and legal clarity.
       While the signatories to this letter have very diverse 
     views on the cybersecurity legislation, and some take no 
     position on the legislation, we urge you to make the Leahy 
     amendment #2580 in order and to support it when offered.
       Adobe; American Booksellers Foundation for Free Expression; 
     Americans for Tax Reform; Association for Competitive 
     Technology; American Library Association; Association of 
     Research Libraries; Bill of Rights Defense Committee; 
     Business Software Alliance; CAUCE North America; Center for 
     Democracy & Technology; Center for Financial Privacy and 
     Human Rights; Center for National Security Studies; Citizens 
     Against Government Waste; Competitive Enterprise Institute; 
     Computer and Communications Industry Association; The 
     Constitution Project; Data Foundry; Distributed Computing 
     Industry Association; eBay; EDUCAUSE; Engine Advocacy; 
     FreedomWorks; Liberty Coalition; Newspaper Association of 
     America; Microsoft; Neustar; Personal; Salesforce;; 
     SpiderOak; Symantec; TechFreedom; TechAmerica; TRUSTe; U.S. 
     Policy Council of the Association for Computing Machinery.

                                               September 21, 2011.
     Hon. Patrick Leahy,
     Chairman, Committee on the Judiciary,
     U.S. Senate, Washington, DC.
     Hon. Charles Grassley,
     Ranking Member, Committee on the Judiciary,
     U.S. Senate, Washington, DC.
       Dear Senators Leahy and Grassley: The undersigned 
     individuals and organizations wrote last month in support of 
     making changes to the Computer Fraud and Abuse Act to ensure 
     that it is both strong and properly focused. We mentioned 
     that while the CFAA is an important tool in the fight against 
     cybercrime, its current language is both overbroad and vague. 
     It can be read to encompass not only the hackers and identity 
     thieves the law was intended to cover, but also actors who 
     have not engaged in any activity that can or should be 
     considered a ``computer crime.'' We write again today to 
     express our appreciation for recent action taken by the 
     Committee on the Judiciary to address our concerns.
       Last week, at a markup of Chairman Leahy's Personal Data 
     Privacy and Security Act of 2011 (S. 1151), Senator Grassley, 
     with the co-sponsorship of Senators Franken and Lee, 
     introduced an amendment that would fix a large part of the 
     overbreadth problem in the CFAA. In particular, the amendment 
     would remove the possibility that the statute could be 
     interpreted to allow felony prosecutions of ``access in 
     violation of a contractual obligation or agreement, such as 
     an acceptable use policy or terms of service agreement, with 
     an Internet service provider, Internet website, or non-
     government employer, if such violation constitutes the sole 
     basis for determining that access to a protected computer is 
     unauthorized.'' The amendment passed with bipartisan support, 
     including that of Chairman Leahy himself.
       As we noted in our previous letter, our concerns about 
     overbroad interpretations of the existing language are far 
     from hypothetical. Three federal circuit courts have agreed 
     that an employee who exceeds an employer's network acceptable 
     use policies can be prosecuted under the CFAA. At least one 
     federal prosecutor has brought criminal charges against a 
     user of a social network who signed up under a pseudonym in 
     violation of terms of service.
       These activities should not be ``computer crimes'' any more 
     than they are crimes in the physical world. If, for example, 
     an employee photocopies an employer's document to give to a 
     friend without that employer's permission, there is no 
     federal crime (though there may be, for example, a 
     contractual violation). However, if an employee emails that 
     document, there may be a CFAA violation. If a person assumes 
     a fictitious identity at a party, there is no federal crime. 
     Yet if they assume that imaginary identity on a social 
     network that prohibits pseudonyms, there may again be a CFAA 
     violation. This is a gross misuse of federal criminal law. 
     The CFAA should focus on malicious hacking and identity theft 
     and not on criminalizing any behavior that happens to take 
     place online in violation of terms of service or an 
     acceptable use policy.
       We believe that the Grassley/Franken/Lee amendment is an 
     important step forward for both security and civil liberties. 
     We commend the Ranking Member for introducing the amendment 
     and the Chairman for supporting it. We would also support 
     further changes to the language in the bill to ensure that 
     government employees are given the same protections from 
     criminal prosecution as their private sector counterparts. 
     Changes such as these will strengthen the law and focus the 
     justice system on the malicious hackers and online criminals 
     who invade others' computers and networks to steal sensitive 
     information and undermine the privacy of those whose 
     information is stolen.
       Laura W. Murphy, Director, Washington Legislative Office, 
     American Civil Liberties Union; Kelly William Cobb, Executive 
     Director, Americans for Tax Reform's Digital Liberty; Leslie 
     Harris, President and CEO, Center for Democracy & Technology; 
     Fred L. Smith, President, Competitive Enterprise Institute; 
     Marcia Hofmann, Senior Staff Attorney, Electronic Frontier 
     Foundation; Charles H. Kennedy, Partner, Wilkinson, Barker, 
     Knauer, LLP; Wayne T. Brough, Ph.D., Chief Economist and Vice 
     President, Research, FreedomWorks Foundation; Orin S. Kerr, 
     Professor of Law, George Washington University; Paul 
     Rosenzweig, Visiting Fellow, The Heritage Foundation; Berin 
     Szoka, President, TechFreedom.

                                     Washington, DC, July 30 2012.
     Re U.S. Senate Proposed Cybersecurity Legislation

     Hon. Harry Reid,
     Majority Leader, U.S. Senate, Washington, DC.
     Hon. Mitch A. McConnell,
     Minority Leader, U.S. Senate, Washington, DC.
       Dear Majority Leader Reid and Minority Leader McConnell: On 
     behalf of TechAmerica, thank you for your leadership in 
     making cybersecurity a national priority. We share your goal 
     of enhancing our nation's cybersecurity posture in response 
     to growing cyber threats. TechAmerica believes that any final 
     bi-partisan agreement should both preserve the vitality of 
     innovation and promote the Information & Communication 
     Technology sector's ability to respond to constantly evolving 
     cyber threats. With these goals in mind, we are writing to 
     provide our insights on S. 3414, the Cybersecurity Act of 
     2012, and additional elements for the Senate's consideration 
     as part of a final cybersecurity package designed to help 
     meet our national security challenges.
       TechAmerica and its members are dedicated to maintaining 
     and expanding the partnership between the private sector and 
     the government to address our nation's cybersecurity 
     preparedness. We have spent much time over the last six years 
     focusing on these critical issues, working closely with 
     Congress and the Administration on addressing threats to our 
     nation's cybersecurity. Any final cybersecurity measure 
     passed by the Senate must be firmly grounded in a strong 
     public private partnership.
       We believe that legislation, if not done carefully, could 
     do more harm than good. Specific mandates generally do not 
     adapt as quickly as threat and technology landscapes change, 
     so they can actually hinder industry's ability to innovate 
     and effectively mitigate threats. Mandates affect industry's 
     ability to design, develop and deploy technology. S. 3414 
     represents a clear step forward towards a workable framework 
     that strikes the right balance by prioritizing our nation's 
     cybersecurity with an outcome based approach of voluntary 
     incentives rather than through prescriptive regulatory 
       As the Senate prepares to consider S. 3414, The 
     Cybersecurity Act of 2012, as the underlying bill to 
     comprehensive cybersecurity legislation, we wish to convey 
     our strong support of several critical components that would 
     immediately enhance our cybersecurity posture. Specifically, 
     TechAmerica endorses the following provisions of S. 3414 to 
     address our country's critical cybesecurity priorities:
       Title--Federal Information Security Management Act (FISMA) 
     Reform: The paper-based, compliance regime that exists under 
     the current FISMA framework is time consuming and costly. 
     This outdated system has not demonstrated a requisite 
     increase in security of government systems. In response to a 
     rapidly evolving threat environment, our federal information 
     security practices must be updated to reflect a risk-based 
     and continuous monitoring approach as proposed by Senator 
     Carper in Title II of S. 3414.
       Title III--Research and Development: Investing in research 
     and development (R&D) is essential to protecting critical 
     systems and enhancing the cybersecurity for both the 
     government and the private sector. We support Title II, which 
     would create a national cybersecurity R&D plan to help 
     develop game-changing technologies that will neutralize 
     attacks on the cyber systems of today and lay the foundation 
     to meet the challenges of securing the cyber systems of 
       Title IV--Education, Workforce, and Awareness: Industry and 
     government must work together to plan for the future by 
     investing in cybersecurity education to develop the next 
     generation of cybersecurity workers. We support Title IV, 
     which encourages cybersecurity professional development and 
     improving public awareness of cybersecurity risks from 
     identity theft to cyber predators and fraudsters.
       Title V--Federal Acquistion Risk Management Strategy: We 
     support Title V, which calls for a comprehensive acquisition 
     risk management strategy to address risks and threats to the 
     information technology products and services in the federal 
     government supply chain. This strategy will allow agencies to 
     make informed decisions when purchasing IT products and 
     services. Importantly, the bill requires specific and much 
     needed training for the federal acquisition workforce to 
     enhance the security of federal networks.
       Title VI--International Cooperation: Cybercrimes are 
     borderless, and we must work with our international partners 
     to combat this threat. Title VI will help provide for 
     enhanced cyber response capacity in countries currently 
     without adequate resources to combat cybercrime, as well as 

[[Page S5916]]

     of existing legal mechanisms to further international 
     cooperation. We support Title VI, which includes S. 1469, The 
     International Cybercrime Reporting and Cooperation Act, 
     sponsored by Senators Hatch and Gillibrand.
       TechAmerica is confident that these core components alone 
     would immediately and substantially improve America's 
     cybersecurity posture. Congress cannot afford to delay any 
     longer on the passage of these critical provisions 
     considering the potential risk of falling behind our cyber 
       In an effort to provide the Senate with our collective 
     expertise, we are also compelled to outline for you those 
     aspects of the legislation that we believe require further 
     refinement in order for it to receive our overall support as 
     a final cybersecurity proposal. These provisions include:
       Title I--Public Private Partnership to Protect Critical 
     Infrastructure: Rather than mandating that critical 
     infrastructure organizations comply with a DHS cybersecurity 
     framework, the newly introduced bill offers a vast, important 
     improvement by providing incentives to organizations that 
     voluntarily comply with cybersecurity best practices. While 
     we commend this positive direction, TechAmerica recommends 
     further refining the following provisions of Title I.
       National Cybersecurity Council--In the spirit of a true 
     public-private partnership, industry should be represented by 
     the Sector Coordinating Councils (SCCs) in an official 
     capacity on the National Cybersecurity Council. Best 
     practices and voluntary standards should be industry driven 
     and developed in conjunction with NIST. The Council should 
     not have the ability to unilaterally overrule the SCCs 
     proposed best practices. Alternatively, we therefore propose 
     a conciliatory dispute resolution process.
       Inventory of Critical Infrastructure--We recommend that 
     each sector be differentiated and recognized for current 
     cybersecurity best practices employed in securing critical 
     infrastructure. Information technology is not only a specific 
     sector, but an underlying component of multiple industry 
     sectors. For this reason, we strongly support preserving the 
     current back-end limitation on commercial information 
     technology products.
       Voluntary Cybersecurity Best Practices--We urge the 
     sponsors to strike any reference to the term ``mandatory'' in 
     the text to ensure this framework is truly voluntary in 
     nature and not a precursor to future regulatory action.
       Voluntary Cybersecurity Program for Critical 
     Infrastructure--TechAmerica requests inserting liability 
     protection language that will prevent compensatory damages, a 
     cap on damages for vicarious liability, and bar punitive 
       Protection of Information--While we strongly support the 
     protection of information found in Section 106, we are 
     concerned by some of the additional, extraneous mechanisms 
     introduced as part of that protection. Such elements of the 
     proposal act as a clear disincentive to private companies 
     joining a voluntary system in good faith out of concern for 
     future audit and investigation.
       Title VII--Information Sharing: The inability to share 
     information is one of the greatest challenges to collective 
     efforts toward improving our cybersecurity, and we appreciate 
     the efforts by the sponsors of S. 3414 to remove those 
     barriers in order to foster better information sharing 
     between the government and the private sector. We believe 
     that information sharing is a fundamental component of S. 
     3414, as it will better enable collaboration in defense of 
     cyber-attacks while ensuring strong privacy protections. 
     TechAmerica recommends refining the following provisions of 
     S. 3414 in Title VII.
       Affirmative Authority to Monitor and Defend Against 
     Cybersecurity Threats--S. 3414 significantly narrows the 
     scope of ``monitoring'' activities permissible under previous 
     bill iterations to the scrutiny of a specific list of ``cyber 
     threat indicators.'' Previously proposed language had allowed 
     companies to monitor for cybersecurity threats, which were 
     defined more generally as unauthorized access or 
     exfiltration, manipulation, or impairment to the network or 
     data. It isn't clear that industry's standard monitoring 
     systems can be tailored enough to fit within the parameters 
     of the more specific list as some threats are not categorized 
     until after they are detected through system alerts. In 
     addition, Title VII in its current form limits how an entity 
     may use cyber threat information that it obtains from its own 
     monitoring. This is a significant limitation to put on 
     entities and does not seem justified. The laundry list 
     approach used to define cyber threat indicators potentially 
     limits the use of some techniques tailored to protect 
     networks. It is problematic that this definition is linked to 
     monitoring authority. Finally, we believe that the definition 
     of countermeasures should be narrowed.
       Voluntary Disclosure of Cybersecurity Threat Indicators 
     Among Private Entities--Business to business information 
     sharing is an important practice in preventing cyber threats. 
     We recommend striking the reasonably likely standard 
     provision in this Title. It is a difficult test to meet and 
     one that will only discourage private information sharing. 
     Also, we believe that more business to business information 
     sharing would be possible with the inclusion of the same 
     limited liability protection that a private entity would 
     receive when sharing information with the newly created 
     government exchange.
       In closing, TechAmerica urges the Senate to act on and pass 
     the following legislative measures which may possibly be 
     offered as amendments to S. 3414, The Cybersecurity Act of 
       Cybercrime: TechAmerica urges the Senate to pass S. 2111, 
     The Cyber Crime Protection Security Act, sponsored by Senator 
     Leahy. This measure will provide the government with new 
     tools to prosecute more effectively organized criminal 
     activity involving computer fraud. The legislation will also 
     streamline and enhance the criminal penalties for computer 
     fraud, and address cybercrime involving the trafficking of 
     consumers' online passwords.
       Electronic Communications Privacy: TechAmerica supports, S. 
     1011, The Electronic Communications Privacy Amendments Act, 
     sponsored by Senator Leahy which would update the 1986 ECPA 
     statute to give information stored in the cloud the same 
     level of protection afforded to information stored locally.
       Data Breach Notification: TechAmerica has long supported 
     passage of a strong, national data breach notification law 
     and has endorsed S. 1207, the Data Security and Breach 
     Notification Act, sponsored by Senators Rockefeller and Pryor 
     as the approach consistent with our principles on data breach 
     notification. Establishing a national framework to promote 
     on-going data security measures and consistent breach 
     notification standards will provide much needed guidance, 
     predictability, and certainty for consumers, consumer 
     protection authorities, and businesses, and will replace the 
     complex patchwork of state data breach laws with a uniform 
     national standard.
       As you and your colleagues attempt to find bi-partisan 
     consensus on a final cybersecurity agreement, we urge you to 
     carefully consider sustaining the innovative capacity of our 
     information and communications systems and all the myriad 
     activities that they enable, and to thus observe the 
     important axiom, ``first, do no harm.'' Cybersecurity is a 
     multi-faceted and complex ecosystem with profound 
     interdependencies; thus even well intended legislation in 
     this area often has the potential to produce many unintended 
     consequences. Without such rigorous review and consultation, 
     legislation could possibly potentially violate this cardinal 
     principle and risk setting us back in our collective efforts 
     to bolster our nation's cybersecurity.
       Thank you again for considering our views and for your 
     continued efforts to enhance our nation's cybersecurity. As 
     representatives of the nation's leading information and 
     communications technology firms, TechAmerica remains strong 
     in our resolve to continue working together with the Senate 
     and the House to improve the security of our shared 
                                                   Shawn Osbourne,
                                                President and CEO.

  Mr. McCAIN. Mr. President, I rise today to oppose cloture on the 
Cybersecurity Act of 2012.
  Are any of us surprised that we find ourselves in this situation--
again? Is this the ``open amendment'' process we were all promised? As 
I said earlier this year, a bill as complex as cyber security 
legislation can only be achieved if it goes through the regular 
committee process. Had this bill been subjected to the proper committee 
process, instead of relying on Senate rule XIV, I believe we would have 
had a much stronger legislative product that would have attracted 
broader support. Instead, the blame game, which is the first sign of a 
stalled legislative process, is in full swing.
  As of yesterday afternoon it was my understanding that we would 
continue to work throughout August to find a compromise on this 
legislation. As a backstop to prepare for the possibility that an 
agreement would not be reached during that time, we requested a tranche 
of 10 to 15 placeholder amendments be set aside to address a defined 
set of issue areas we had with the current bill. In exchange for these 
process concessions, our group was willing to support cloture.
  The unfortunate reality is that we had time to conduct proper 
legislative hearings and hold committee markups. But rather than choose 
the customary process, which forces us to defend our points of view, 
build consensus around ideas and, admittedly, requires more planning 
and hard work, a less transparent approach was taken. That approach, 
while at the time may have seemed more legislatively convenient, 
resulted in hurried, last-minute negotiations that have been doomed 
from the outset. Rarely does anything good get accomplished under these 
circumstances, which lack transparency and scrutiny. This should serve 
as a warning to both sides of the aisle and future congresses that 
attempts to side-step the legislative process are risky, often 
unproductive, and do not bypass the criticism they seek to avoid.
  And while all of us recognize the importance of cyber security, we 

[[Page S5917]]

not confuse opposition to this deeply flawed bill as a sign of somehow 
being unwilling to address the issue. It has been my experience that 
when dealing with matters of national security and domestic policy, and 
in this bill is at the nexus of both, it is more important to work to 
get something done right than just work to get something done. And 
while both efforts may result in enough material to create a headline, 
only one fulfills our purpose for being here in this body.
  Time and again, we have heard from experts about the importance of 
maximizing our Nation's ability to effectively prevent and respond to 
cyber threats. We have all listened to these accounts. This cyber 
threat and the risk of an attack only increased when the Stuxnet leaks 
began recklessly coming out of this administration. And while this 
threat and others persist, the most important piece of legislation 
which the congress can pass when it comes to ensuring our national 
security, the National Defense Authorization Act, which includes cyber 
security elements, remains unfinished. This entire process feels more 
like a ploy to advance the fiction that we are focused on national 
security, while avoiding the fulfillment of one of the Congress's most 
important national security responsibilities--the passage of the 
National Defense Authorization Act.
  The point is that debating a controversial and flawed bill--a bill of 
such `significance' that it has languished for over 5 months at the 
Homeland Security and Government Affairs Committee, with no committee 
markup or normal committee process--should not have taken precedence 
over a bill which was vetted over a period of 4 months by the Senate 
Armed Services Committee and reported to the floor with the unanimous 
support of all 26 members. Unfortunately, our current trajectory will 
likely leave us without a cyber security bill or the National Defense 
Authorization Act.
  As I have said time and time again, the threat we face in the cyber 
domain is among the most significant and challenging threats of 21st-
century warfare. But this bill unfortunately takes us in the wrong 
direction and establishes a new national security precedent which fails 
to recognize the gravity of the threats we face in cyber space. I agree 
that we must take appropriate steps to ensure that civil liberties are 
protected and believe we could have appropriately done so without 
removing the only institutions capable of protecting the United States 
from a cyber attack from counties like China, Russia, and Iran--from 
the front lines. Making these entities more reliant on their less 
capable civilian counterparts is an unacceptable, precedent setting 
approach, which fails to recognize the unique real-time requirements 
for understanding the threat environment, anticipating attacks, and 
responding when necessary.
  Additionally, what is not being discussed enough are the likely 
implications of the new cyber security stovepipes being proposed in 
this bill. The recreation of the very walls and information sharing 
barriers that the 9/11 Commission attributed as being responsible for 
one of our greatest intelligence failures is very unwise.
  In addition to the problems with the information sharing provisions, 
the critical infrastructure language grants too much authority to the 
government, failing to consider the innovative potential of the private 
sector. I continue to believe that this title would force those who own 
or operate critical assets to place more emphasis on compliance 
attorneys, rather than utilize the world-class engineering capabilities 
employed by our private sector. This is why the primary objective of 
our bill is to enter into a cooperative information sharing 
relationship with the private sector, rather than an adversarial 
relationship rooted in mandates used to dictate technological solutions 
to industry.
  The SECURE IT Act is a serious response to the growing cyber threat 
facing our country, and it is an alternative approach to the overly 
bureaucratic and regulatory bill before us. Our amendment seeks to 
utilize the world-class engineers employed by our private sector, not 
compliance attorneys in law firms. This is why the primary objective of 
our bill is to enter into a cooperative information-sharing 
relationship with the private sector, rather than an adversarial 
relationship rooted in mandates used to dictate technological solutions 
to industry.
  The centerpiece of the SECURE IT Act continues to be a legal 
framework to provide for voluntary information sharing. Our amendment 
provides specific authorities relating to the voluntary sharing of 
cyber threat information among private entities and the government, and 
in doing so, we do not create any new bureaucracy. This bill at the 
very least deserved a vote.
  As I stated earlier, it has been my experience that when dealing with 
matters of national security and domestic policy, it is more important 
to work to get something done right than just work to get something 
done. For these reasons, and because of the closed process put forth by 
the majority, we should all oppose cloture.
  Mr. REID. Mr. President, nearly 3 years ago, I called the chairmen of 
the Senate's national security committees--Senators Lieberman, 
Rockefeller, Feinstein, Leahy, and Levin--together to discuss what, 
even then, was one of the most urgent priorities for our national 
security: defending our Nation against cyber attack.
  I asked them to begin working together, across committee 
jurisdictions and across party lines, to develop comprehensive cyber 
security legislation to protect our Nation, our security, and our 
economy from this growing threat. Many of the Senators present had 
already begun work on their own legislation, but they committed that 
day to join their efforts in common cause.
  Since that time, their committees have painstakingly worked to break 
down artificial jurisdictional boundaries and to resolve differences 
across party lines. They have also sought to include a remarkably wide 
array of stakeholders--including cybersecurity experts, the private 
sector, academia, the intelligence community, military leaders, law 
enforcement, think tanks, State and local governments, and many more--
in an open, transparent, and cooperative process.
  The process has been nearly unprecedented in its scope, its 
thoroughness, and its transparency. Since the Senate began its work on 
cyber security legislation in 2009, committees have held more than 20 
hearings across at least seven different committees specifically on 
cyber security and related legislation, and addressed critical 
questions relating to cyber security in dozens of additional hearings. 
They have held numerous briefings for Senators and staff on cyber 
security, including a simulated cyberattack exercise for all Senators 
conducted by senior administration officials. They have organized 
several other forums for Senators to examine cyber security issues, 
including cross-committee working groups designed to develop 
comprehensive legislation, as well as the Intelligence Committee's 2010 
Cyber Security Task Force. They have considered nearly 20 separate 
cyber security bills and numerous cyber security-related amendments. 
And they have held markups of cyber security legislation in five 
separate committees, each of which occurred under each committee's 
rules for regular order.
  The result has been legislation that addresses the equities of these 
diverse stakeholders as fairly and thoroughly as one could imagine, 
while preserving the authorities necessary to boost our Nation's cyber 
  As ranking member of the Homeland Security Committee, Senator Collins 
has been heroic in her efforts to ensure the bipartisan nature of this 
process. Yet, despite her best efforts, Republicans have made it clear 
throughout the last 3 years that they were simply unwilling to 
  They refused to participate in working groups designed to draft the 
legislation, despite the fact that these groups were established with 
Leader McConnell's full agreement. They refused to propose changes to 
draft legislation, or to participate in negotiations with bill 
sponsors. When, after 3 years of painstaking work and broad outreach 
the legislation came to the floor, my Republican colleagues refused to 
allow the Senate to consider a single amendment to improve the bill, 
despite my continuous pleading for their agreement on a list of 
amendments for consideration. And, as today's cloture vote has 
demonstrated, they have refused to allow us to continue to debate the 

[[Page S5918]]

  Why this obstinate refusal to participate? How can these Senators, 
who have received the same entreaties from our military and 
intelligence leaders about the urgency of this legislation, obstruct 
Senate action to confront one of the leading threats to our Nation? 
These questions are all the more perplexing when one considers what our 
national security leaders have said about the seriousness of the threat 
we face.
  According to General Keith Alexander, Commander of U.S. Cyber 
Command, ``The cyber threat facing the Nation is real and demands 
immediate action. The time to act is now; we simply cannot avoid 
further delay.''
  General Martin Dempsey, Chairman of the Joint Chiefs of Staff, noted, 
``The uncomfortable reality of our world today is that bits and bytes 
can be as threatening as bullets and bombs. Not only will military 
systems be targeted by tools that can cause physical destruction, but 
adversaries will increasingly attempt to hold our Nation's core 
critical infrastructure at risk.''
  Similarly, Secretary of Defense Leon Panetta stated, ``We talk about 
nuclear. We talk about conventional warfare. We don't spend enough time 
talking about the threat of cyberwar. There's a strong likelihood that 
the next Pearl Harbor that we confront could very well be a 
  And Director of National Intelligence James Clapper called 
cyberattack ``A profound threat to this country, to its future, its 
economy and its very being.''
  Simply put, there is unanimity across the national security community 
that malicious cyber activity is an urgent, growing, and imminently 
dangerous threat that our Nation must confront immediately. But this 
unanimity is not limited to the current administration. Countless 
national security officials appointed under Republican 
administrations--including former Director of National Intelligence 
Mike McConnell, former Secretary of Homeland Security Michael Chertoff, 
former Deputy Secretary of Defense Paul Wolfowitz, former Chairman of 
the Joint Chiefs of Staff Mike Mullen, former Director of the Central 
Intelligence Agency Michael Hayden, and many others--have echoed the 
urgency of our current administration's call for action, as well as 
their support for the legislation we have considered today.
  Yet, today Republicans were nearly unanimous in their opposition to 
this legislation. Why?
  It is no secret that Republicans are taking their marching orders 
from the Chamber of Commerce. And the Chamber has made no secret that 
it is opposed to any effort to secure America's cyber networks; in 
fact, it has gone so far as to oppose even voluntary cybersecurity 
standards. In other words, the position of the Chamber of Commerce is 
that the owners and operators of the most critical infrastructure of 
our Nation--the electricity grid, telecommunications lines, air traffic 
control systems, and the like--should not even be asked to take steps, 
on a strictly voluntary basis, to improve our Nation's security. That 
position is hard to believe, and it is seriously out of step with the 
patriotism of the owners and employees of the American businesses it 
claims to represent.
  As a result, my Republican colleagues have ignored the urgent calls 
of some of America's most respected national security leaders in order 
to pander to the Chamber of Commerce--an organization that appears more 
concerned with corporate bottom lines than with the American lives this 
legislation seeks to defend.
  It seems that the only people who have not yet awakened to the threat 
facing our Nation are Senate Republicans. What has become clear in this 
debate is that Republicans are willing to prioritize partisan politics 
and slavish defense of corporate interests over our Nation's security. 
And that is simply unacceptable.
  I hope that my colleagues across the aisle will wake up and recognize 
the threat facing our country before it is too late--before the ``cyber 
9/11'' of which leaders like Secretary Panetta have warned us arrives. 
I hope that they can join us, as we have asked them to do for the last 
3 years, and work on a bipartisan basis for the good of our country. 
And if they choose to do so, we will be ready to work quickly to pass 
this much-needed legislation.
  But the more they delay, the more the risk to our Nation's security 
and economy grows. Time is running short.
  The ACTING PRESIDENT pro tempore. The Senator from Connecticut is 
  Mr. LIEBERMAN. Mr. President, I rise to speak on the vote we will 
have in about 10 minutes. I am going to be real personal in my 
  This is one of those days when I fear for our country, and I am not 
proud of the Senate. We have a crisis, one we all acknowledge. It is 
not just that there is a theoretical or speculative threat of cyber 
attack against our country--it is real and happening now. Most people 
don't know it because a lot of people who are attacked don't want to 
announce it because they are embarrassed.
  A lot of companies are attacked that control critical cyber 
infrastructure and have, in fact, what I called yesterday secret cyber 
attack cells planted in their system to control the kind of systems we 
depend on for the quality of our life and, in some ways, for our lives.
  GEN Keith Alexander, Director of Cyber Command at the Pentagon, said 
the other day that when it comes to cyber war, we are today where we 
were in 1993 in our war with Islamist terrorism after they blew up the 
truck bomb in the parking garage at the World Trade Center. We were 
attacked. It shook us up for a while, but then people forgot about it. 
At least in that case we knew we had been attacked. Now we are attacked 
every day and most people don't know it. Maybe there is a story in the 
paper one day and they read it and it is on TV and then they forget 
about it.
  Are we going to act before we get to the cyber 9/11, as we obviously 
did in the attacks in a war we were in without acknowledging it with 
Islamist terrorism? We pretty much all agree on that. Yet we have 
descended once again to gridlock, to partisan attack and counterattack. 
The end result of that is a lot of sound and fury that will accomplish 
nothing, and we will leave our country vulnerable.
  The fact is that as the majority leader announced earlier in the 
week, we have been on this for a long time. Senator Collins and I have 
tried to be flexible. We have been open to compromise, not of principle 
and how much we thought we could get passed through the Senate, but 
because the threat is so urgent, we cannot afford to insist on 
everything we thought was in our best interest. We made a mandatory 
system voluntary, but that has not been enough. Senator Reid said if 
there was an agreement on a finite list of amendments, and they are 
germane and relevant to the bill--not taking your favorite political 
shot through the bill or a political message opportunity--then he would 
take it up in September. As soon as we come back, we would have limited 
time on it and go to final passage and the Senate would work its will.
  Unfortunately, we haven't been able to agree on such a list. There 
are still nongermane, irrelevant amendments on the list. Our friends in 
the Republican caucus have whittled the list down to 58. Frankly, I 
don't worry about the number as much as the majority leader was right 
that this bill and the threat of cyber attack and cyber theft is too 
important to use as a vehicle for political shots at one another.
  We are approaching a cloture vote, and now it looks like it is going 
to lose. I hope not. Hope springs eternal for at least 25 minutes more. 
I say to my friends, if they believe we are in a cyber war and we are 
inadequately defended--particularly the part of our cyber 
infrastructure controlled by the private sector--then vote for cloture. 
It is the only way we are going to get to this bill. Vote for cloture.
  Remember something. We are just one of two Chambers of the Congress 
of the United States. Whatever passes the Senate still has to go to a 
conference with the House. The House's approach on this is very 
different, and we are going to have to do even more negotiating and 
give-and-take. I appeal to my colleagues, make a principles vote and 
vote in a way that says to the country and to your constituents two 
things: One, you recognize we are in a cyber war now and we are 
inadequately defended. Second, by voting for cloture,

[[Page S5919]]

which means we will take up the bill, you are saying we are willing to 
work together across party lines to try to get something done.
  In my opinion, it is the only way we are going to get to this bill. 
If cloture is not granted, as disappointed and angry as I am going to 
be, I will not be petulant. I will be open today, tomorrow, and as long 
as we have an opportunity in this session, to work with my colleagues 
to try to reach an agreement that will help us improve our cyber 
  Sometimes in moments of disappointment, I go back to the great 
Winston Churchill. I will just read a few comments from him. These were 
all in the 1930s when he was in the House of Commons and was concerned 
that England and the world faced a threat which they were not 
acknowledging, the rise of Nazi Germany. First, he said this--and I 
hate to say it, but it relates to where we are today. He said this 
about those who refused to act decisively to counter the clear and 
growing threat of a resurgent and rearmed Nazi Germany during the 
1930s: ``They go on in strange paradox, decided only to be undecided, 
resolved to be irresolute, adamant for drift, solid for fluidity.''
  I am afraid that is the message we are going to send to the country 
and to our enemies if we don't get together and pass a cyber security 
bill in this session. Churchill said he was staggered, after his long 
parliamentary experience with the debates he had gone through on this 
question during the 1930s, by two things: ``The first has been the 
dangers that have so swiftly come upon us in a few years, and have been 
transforming our position and the whole outlook of the world.''
  That is where we are with regard to cyber war, although most people 
don't understand that. We do. He said:

       Secondly, I have been staggered by the failure of the House 
     of Commons to react effectively against those dangers. That, 
     I am bound to say, I never expected. I say that unless the 
     House [finds its resolve] we will have committed an act of 
     abdication of duty.

  I end with those words. I think it is that serious. If we don't find 
a way either by voting for cloture today to get on the bill so we can 
negotiate or continuing to negotiate if cloture fails, it will be quite 
simply a colossal abdication of duty to the people of the United States 
and their security.
  Mr. COATS. Will my friend yield me some time?
  Mr. LIEBERMAN. Yes; I yield to my friend from Indiana.
  Mr. COATS. Mr. President, first of all, I commend all the Republicans 
and Democrats who have worked so hard together--nearly one-fifth of us 
in this Congress--hour after hour, meeting after meeting, and 
flexibility has been provided to both sides by Senator Lieberman, 
Senator Collins and their bill and Senators Chambliss, McCain, 
Hutchison, and others in terms of trying to reach a consensus. Those 
who listened to the Senator from Maryland yesterday know we are given 
the unclassified version of the nature of this threat. Add to that the 
classified version, and it is truly a threat that needs to be 

  It is despicable that the majority leader of the Senate, when we were 
so close to putting together something to bring joint support of what 
everybody knows we need to do and want to do--so close with agreements 
from Democrats and Republicans, ranking members and chairmen of the 
relevant committees, and presenting a package which would grant limited 
time and limited germane amendments--to deny us that opportunity.
  Yet here we are faced with a dilemma of an imminent threat facing the 
people of the United States of America and a vote whether to continue 
the process, continue to work with something that potentially could 
kill this for the rest of the session and maybe even next year or 
something that grants to the White House an abuse of executive power to 
mandate things through executive order, which we have seen on a number 
of other occasions. Maybe that is the motive, maybe it is not; I don't 
  Nevertheless, we are faced with a critical choice in terms of an 
imminent threat to the security of the United States and the American 
people. I hope my colleagues will take that into consideration when we 
decide what to do. I thank people on both sides for their tremendous 
efforts, and we should not point fingers of blame at each other.
  That is a real effort to join and address this very serious threat to 
the United States.
  I thank my friend and yield back to him.
  The PRESIDING OFFICER. The Senator from Connecticut.