S5904 CONGRESSIONAL RECORD — SENATE August 2, 2012 

ObamaCare. Then he walks out there a 

few hours later, standing by the famous Ohio clock, and says, cyber security, we should do it. It will take a lot 

longer to do than the time we have. If 

cloture is not invoked today, it is for 

reasons I have just enumerated but 

principally because of the Chamber of 

Commerce. They are opposed to the 

initial bill because it was mandatory 

that these companies do something to 

protect America from these attacks 

from bad people. 

So Senators LIEBERMAN and COLLINS, 

the two managers of this bill from the 

Homeland Security Committee, said: 

OK. We don’t think this is the right 

thing to do, but we will not make the 

provisions mandatory anymore. That is 

still not good enough for the Chamber 

of Commerce. A voluntary alternative 

is still something opposed by the 

Chamber of Commerce. 

I have and numerous other people 

have come to the floor and talked 

about how important this bill is. The 

bill that is before this body now that 

we are going to vote cloture on would 

be a wonderful step forward. No, it 

doesn’t do everything everyone wants, 

but it is a good bill. It is to protect our 

country. The leaders of the security of 

this Nation, including General 

Patraeus, General Dempsey, and the 

people working in NSA say this bill is 

more important than Iran, Afghanistan, Pakistan, and North Korea. But 

the Chamber of Commerce has now 

interjected themselves in the security 

of this Nation. They think they know 

more than Patraeus, Dempsey, and all 

the leaders of this country. They are 

telling the Republicans to vote against 

this, believing they will get something 

better later on. Maybe they will, but 

right now here is what we have. I think 

it sends a very bad message to the 

country that Republicans are not willing to support this legislation. 

To show how serious the Republicans 

are to get this bill done, they filed an 

amendment on a right-to-work law and 

they filed an amendment on repealing 

Dodd-Frank. That is just some of the 

beginning volleys they shot over here. 

My friend, the Senior Senator from Arizona, steps in and says: We are working on a list. 

So I am disappointed, perplexed, and 

somewhat confused about how the Republicans want to proceed. It is obvious—it is obvious—until they get a 

signoff from the chamber of commerce 

that nothing will happen on one of the 

most important security interests this 

country has faced in generations. 

So I would suggest that the Republican leader, rather than trying to 

denigrate this legislation that has been 

done with the best interests of the 

country at heart—including one of his 

most valued Senators, Ms. COLLINS—do 

a conference call with the chamber of 

commerce. Have them come down here 

and tell them what they want, and 

maybe, with what the chamber of commerce wants, we can work something 

out, because they are ruling the place 

now as far as this legislation goes. 

The chamber of commerce, I will repeat, for the first time that I am aware 

of in the history of this country, has 

now become the protector of our Nation’s security interests. That says it 

all, Mr. President. 

f 

RESERVATION OF LEADER TIME 

The ACTING PRESIDENT pro tempore. Under the previous order, the 

leadership time is reserved. 

f 

AFRICAN GROWTH AND 

OPPORTUNITY AMENDMENT ACT 

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 purposes. 

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 

stop. 

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 


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August 2, 2012 CONGRESSIONAL RECORD — SENATE 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 ordered. 

The amendment is as follows: 

(Purpose: In the nature of a substitute) 

Strike all after the enacting clause and insert the following: 

SECTION 1. AMENDMENTS TO AFRICAN GROWTH 

AND OPPORTUNITY ACT. 

(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. 

SEC. 2. ELIMINATION OF UNNECESSARY DUPLICATION, REDUNDANCY, AND OVERLAP OF FEDERAL TRADE PROGRAMS. 

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 amendment. 

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 Africa. 

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 world. 

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 


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S5906 CONGRESSIONAL RECORD — SENATE August 2, 2012 

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 recognized. 

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 businesses. 

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 

recognized. 

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 done. 

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 


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August 2, 2012 CONGRESSIONAL RECORD — SENATE 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 debt. 

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 it? 

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 

recognized. 

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 ExportImport 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 CAFTA. 

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 floor. 

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 following: 

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. 


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S5908 CONGRESSIONAL RECORD — SENATE August 2, 2012 

The ACTING PRESIDENT pro tempore. The Senator from Texas is recognized. 

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 side. 

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 ordered. 

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 committee. 

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 

President. 

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 security. 

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 remaining. 

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 21⁄2 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 21⁄2 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 21⁄2 minutes to Senator 

MCCAIN. 

The ACTING PRESIDENT pro tempore. The Senator from Arizona is recognized. 

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 


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August 2, 2012 CONGRESSIONAL RECORD — SENATE 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 industry. 

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 


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S5910 CONGRESSIONAL RECORD — SENATE August 2, 2012 

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 

obsolete. 

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. 

Sincerely, 

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 conference. 

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’’ cybersecurity 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 

naı ̈ve, but we don’t see how the voluntary 

sharing of selective data related to legally 

defined cyber threats constitutes an Orwellian surveillance program. 

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 differences. 

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 21stcentury 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 


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August 2, 2012 CONGRESSIONAL RECORD — SENATE 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 attack. 

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 report. 

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 wellpublicized 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 said: 

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, thenDNI 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 


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S5912 CONGRESSIONAL RECORD — SENATE August 2, 2012 

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 infrastructure.’’ 

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 legislation. 

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 RockefellerSnowe bill in 2009. Likewise, I support 

provisions establishing an industryled—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 bill. 

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 growth. 

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 decision. 

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 


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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 colleagues. 

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 welltrained 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 employees. 

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 sponsors. 

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 security. 

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 informationsharing 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 needed 


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S5914 CONGRESSIONAL RECORD — SENATE August 2, 2012 

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 considers. 

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 citizens. 

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 outpaced. 

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, 

www.digitaldueprocess.org, a broad-based coalition of companies, privacy groups, think 

tanks, and academics. 

For Internet and communications companies competing in a global marketplace, and 


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August 2, 2012 CONGRESSIONAL RECORD — SENATE 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. 

Sincerely, 

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; Sonic.net; 

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. 

Sincerely, 

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. 

TECHAMERICA, 

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 

mandates. 

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 paperbased, 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 tomorrow. 

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 use 


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S5916 CONGRESSIONAL RECORD — SENATE August 2, 2012 

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 adversaries. 

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 damages. 

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 2012: 

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 cyberspace. 

Sincerely, 

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 should 


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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 defenses. 

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 participate. 

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 legislation. 


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S5918 CONGRESSIONAL RECORD — SENATE August 2, 2012 

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 cyberattack.’’ 

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 

recognized. 

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 statement. 

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, 


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August 2, 2012 CONGRESSIONAL RECORD — SENATE 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 defenses. 

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 addressed. 

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 

know. 

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. 

f 

CLOTURE MOTION 

The PRESIDING OFFICER (Mr. 

BROWN of Ohio). All time has expired. 

The clerk will report the motion to invoke cloture. 

The legislative clerk read as follows: 

CLOTURE MOTION

We, the undersigned Senators, in accordance with the provisions of rule XXII of the 

Standing Rules of the Senate, hereby move 

to bring to a close debate on S. 3414, a bill to 

enhance the security and resiliency of the 

cyber and communications infrastructure of 

the United States. 

Harry Reid, Joseph I. Lieberman, Barbara A. Mikulski, Thomas R. Carper, 

Richard J. Durbin, Christopher A. 

Coons, Mark Udall, Ben Nelson, Jeanne 

Shaheen, Tom Udall, Daniel K. Inouye, 

Carl Levin, John D. Rockefeller IV, 

Charles E. Schumer, Sheldon Whitehouse, John F. Kerry, Michael F. Bennet. 

The PRESIDING OFFICER. By unanimous consent, the mandatory quorum 

call is waived. 

The question is, Is it the sense of the 

Senate that debate on S. 3414, a bill to 

enhance the security and resiliency of 

the cyber and communications infrastructure of the United States, shall be 

brought to a close? 

The yeas and nays are mandatory 

under the rule. 

The clerk will call the roll. 

The legislative clerk called the roll. 

Mr. KYL. The following Senators are 

necessarily absent: the Senator from 

Illinois (Mr. KIRK) and the Senator 

from Florida (Mr. RUBIO). 

The PRESIDING OFFICER. Are there 

any other Senators in the Chamber desiring to vote? 

The yeas and nays resulted—yeas 52, 

nays 46, as follows: 

[Rollcall Vote No. 187 Leg.] 

YEAS—52 

Akaka 

Begich 

Bennet 

Bingaman 

Blumenthal 

Boxer 

Brown (MA) 

Brown (OH) 

Cantwell 

Cardin 

Carper 

Casey 

Coats 

Collins 

Conrad 

Coons 

Durbin 

Feinstein 

Franken 

Gillibrand 

Hagan 

Harkin 

Inouye 

Johnson (SD) 

Kerry 

Klobuchar 

Kohl 

Landrieu 

Lautenberg 

Leahy 

Levin 

Lieberman 

Lugar 

Manchin 

McCaskill 

Menendez 

Mikulski 

Murray 

Nelson (NE) 

Nelson (FL) 

Reed 

Rockefeller 

Sanders 

Schumer 

Shaheen 

Snowe 

Stabenow 

Udall (CO) 

Udall (NM) 

Warner 

Webb 

Whitehouse 

NAYS—46 

Alexander 

Ayotte 

Barrasso 

Baucus 

Blunt 

Boozman 

Burr 

Chambliss 

Coburn 

Cochran 

Corker 

Cornyn 

Crapo 

DeMint 

Enzi 

Graham 

Grassley 

Hatch 

Heller 

Hoeven 

Hutchison 

Inhofe 

Isakson 

Johanns 

Johnson (WI) 

Kyl 

Lee 

McCain 

McConnell 

Merkley 

Moran 

Murkowski 

Paul 

Portman 

Pryor 

Reid 

Risch 

Roberts 

Sessions 

Shelby 

Tester 

Thune 

Toomey 

Vitter 

Wicker 

Wyden 

NOT VOTING—2 

Kirk Rubio 

The PRESIDING OFFICER. On this 

vote the yeas are 52, the nays are 46. 

Three-fifths of the Senators duly chosen and sworn not having voted in the 

affirmative, the motion is rejected. 

The majority leader is recognized. 

The Senate will be in order. 

Mr. REID. I enter a motion to reconsider the vote by which cloture was not 

invoked. 

The PRESIDING OFFICER. The motion is entered. 

The majority leader is recognized. 

Mr. REID. Mr. President, we expect 

one more vote today. I have not had a 

chance to discuss it in detail with Senator MCCONNELL yet, but we hope to 

have a vote on a judge. We hope to 

have it at 2 o’clock today, so people 

should make their schedules accordingly. 

f 

AFRICAN GROWTH AND 

OPPORTUNITY ACT—Continued 

The PRESIDING OFFICER. Under 

the previous order, the question is on 

agreeing to amendment No. 2771 offered 

by the Senator from Oklahoma. 


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