Statement of the Honorable John Conyers, Jr., Ranking Member, Committee on the Judiciary, for the Markup of H.R. 906, the “Furthering Asbestos Claim Transparency (FACT) Act of 2017”

Dean of the U.S. House
of Representatives
John Conyers, Jr.

Mr. Chairman -- I have several serious concerns with H.R. 906, the “Furthering Asbestos Claim Transparency Act,” or the so-called “FACT Act.”

To begin with, the bill’s reporting and disclosure requirements are an assault against the privacy of asbestos victims who seek payment for their injuries from bankruptcy trusts established for that purpose.

In particular, H.R. 906 would force these trusts to publicly disclose sensitive, personal information of these asbestos claimants, including their names and exposure histories. 

As a result, their private information will be irretrievably released into the public domain available via the Internet.

Just imagine what insurance companies, prospective employers, lenders, and data collectors could do with this private information.  Worse yet, these asbestos victims will be more vulnerable to predators.

By exposing their personal information to the public, H.R. 906 will allow asbestos victims to be re-victimized notwithstanding the fact that such disclosure has absolutely nothing to do with compensation for asbestos exposure.

While H.R. 906's supporters claim that it is intended to help victims of asbestos exposure,  asbestos victims vigorously oppose H.R. 526.  

           

In fact, I am not aware of a single asbestos victim who supports H.R. 526.

Because of this serious shortcoming of the bill,  I intend to offer an amendment that will protect the privacy of asbestos claimants.

Another problem with H.R. 906 is that it is fundamentally inequitable.        Although the bill requires bankruptcy asbestos trusts to make certain disclosures, it makes no comparable demands on those whose products killed or injured millions of unsuspecting American workers, servicemembers, and consumers. 

In fact, some manufacturers intentionally concealed known risks of asbestos exposure and used every trick in the book to avoid liability.  They even fought the federal government’s efforts to ban its use.

           

As a result, asbestos continued to be widely used in constructing our homes, offices and public schools.  This very building in which we are sitting is in the midst of a nearly 20-year asbestos abatement effort. 

And now, these very same manufacturers ask  Congress to help them by passing H.R. 906, which effectively shifts some of the costs of discovery away from them to asbestos bankruptcy trusts.

Unfortunately, H.R. 906 is nothing more than an attempt by asbestos defendants to do an end-run around the discovery process available under non-bankruptcy law.

           

Finally, contrary to the claims of proponents of this legislation, there is no evidence of endemic fraud warranting such an invasive measure as H.R. 906.

The Government Accountability Office reported that there is no empirical evidence of such fraud with respect to the trusts’ claims processing system.

While not perfect, the trust system set up under Bankruptcy Code section 524(g) has generally proven to be beneficial to both asbestos victims and to corporations facing mass tort liability for causing asbestos injuries. 

           

In exchange for agreeing to fund these trusts, companies are able to shed their massive asbestos tort liabilities and re-enter the business community on a competitive basis for the benefit of their creditors and those who they injured.           

The trusts, in turn, owe a fiduciary duty to all beneficiaries to ensure that only proper claims are paid to the extent possible.

These are just a few of the serious concerns that I have with this legislation.  So, accordingly, I must urge my colleagues to join me in opposing this seriously flawed measure.

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CONYERS & POE LEAD BIPARTISAN HOUSE COALITION TO STOP GOVERNMENT SURVEILLANCE AND HACKING

WASHINGTON, D.C.—Congressman John Conyers (D-MI) and Congressman Ted Poe (R-TX) along with Congressman Blake Fahrenthold (R-TX) and Congresswoman Zoe Lofgren (D-CA) introduced H.R. 5321 the Stop Mass Hacking Act. This is the companion bill to legislation introduced on the Senate side by Senators Ron Wyden (D-OR) and Rand Paul (R-KY). The Department of Justice has recently moved to make an administrative rule change to Rule 41 of the Federal Rules of Criminal Procedure that would give the government the ability to hack the computers of a massive amount of American citizens just by obtaining a single warrant.  If Congress does not act by December 1, 2016, this change will be in effect. The Stop Massive Hacking Act prevents these changes to Rule 41 from going into effect.

Dean of the U.S. House
of Representatives
John Conyers, Jr/

“I stand by the Stop Mass Hacking Act because I am not yet convinced that the proposed changes to Rule 41 are wise or necessary,” said Rep. Conyers. “This rule change is designed to streamline investigative techniques that allow law enforcement to gain unauthorized access and control to remote computer systems.  Until Congress has had an opportunity to examine this proposal in detail—and until we have adequately addressed the privacy concerns raised by my colleagues—this rule change should not take effect.”

“Government does not have the authority to unilaterally legalize widespread government hacking,” said Rep. Poe.  “Americans have rights. It is Congress’ responsibility to safeguard the constitutional rights of the people they represent from a power hungry Executive Branch. As such, we are moving to stop this change that condones hacking the property of the very people we are entrusted to protect.”

“This bill hits pause on a new rule which facilitates hacking of foreign entities and hijacking devices owned by the victims of malware attacks without their permission,” said Rep. Lofgren.  “These troubling activities, and the international, privacy, and security ramifications which may arise as a result, deserve serious deliberation and debate in Congress.”

“We’re in the midst right now of one of the biggest battles in the privacy world that we have faced,” saidRep Farenthold. “Because of the horrendous terrorist attacks we’ve witnessed, there’s a willingness to give up some of our freedoms and privacy in order to feel safe. That’s completely understandable, but if we keep down this path, we’re going to wake up in a few years in George Orwell’s ‘1984.’ This is why, as we fight for security, the intrusion on privacy

necessary to fight the war on terror needs to be narrowly tailored and aggressively overseen.”

“Representatives Poe, Conyers, Farenthold and Lofgren are leading the fight to protect Americans’ freedoms by introducing the Stopping Mass Hacking Act in the House of Representatives,” said Senator Wyden. “They’re proof that a growing, bipartisan coalition agrees that this expansion of the government’s hacking and surveillance authority simply goes too far.”

Stop Mass Hacking Act Summary by Beverly Tran

Read a one-page bill text of the Stopping Mass Hacking (SMH) Act.

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Conyers Considering Legislation to Curb Government Hacking

Dean of the U.S. House
of Representatives
John Conyers, Jr.

The top Democrat on the House Judiciary Committee, Michigan Rep. John Conyers, is looking into joining Sen. Ron Wyden’s (D-Ore.) movement to reverse Supreme Court-approved changes to federal criminal procedure that could expand government-run hacking operations. The change would allow judges to grant warrants for computer and data investigations in any jurisdiction.

“Many in the House, both Democrats and Republicans, remain concerned about the investigatory techniques at the heart of this discussion,” Conyers said late Thursday. “We will continue to study the issue and, when appropriate, we hope to join Senator Wyden in his call to block the change.”

Wyden introduced a bill on Thursday to reverse changes to federal criminal procedure “Rule 41,” approved by the Supreme Court in late April. Upon the introduction of the bill, Wyden’s office indicated a House companion bill is expected soon to reverse what Wyden called “dramatic expansion of the government’s hacking and surveillance authority.”

“These rule changes will allow the government to search millions of computers with the warrant of a single judge,” Wyden added in a Thursday post on Medium.

Sens. Rand Paul (R-Ky.), Tammy Baldwin (D-Wis.), Steve Daines (R-Mont.) and Jon Tester (D-Mont.) cosponsor the Senate measure.

The Department of Justice requested the changes after three years of negotiations, and have disputed privacy advocates’ interpretation of the rule change.

“The amendment would not authorize the government to undertake any search or seizure or use any remote search technique not already permitted under current law, and the amendment does not change any of the traditional protections and procedures, such as the requirement that the government establish probable cause,” a DOJ spokesman said in an emailed statement Thursday.

https://morningconsult.com/alert/conyers-looking-legislation-reverse-change-rule-41/

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House Judiciary Committee to Hold Hearing on Encryption

Dean of the U.S. House
of Representatives
John Conyers, Jr.

Washington, D.C.  – On Tuesday, March 1, 2016 at 1:00 p.m., the House Judiciary Committee will hold a hearing titled “The Encryption Tightrope: Balancing Americans’ Security and Privacy.” The House Judiciary Committee previously held member briefings on encryption, which included a briefing from technology companies and a classified briefing from the government. 

As encryption has increasingly become much more widespread among consumers, there is an ongoing national debate about the positive and negative implications it poses for consumers’ security and privacy. Encryption is used to strengthen consumers’ privacy but it also has presented new challenges for law enforcement seeking to obtain information during the course of its criminal investigations. For example, following the December 2015 terrorist attack in San Bernardino, California, investigators recovered a cell phone belonging to one of the terrorists responsible for the attack. After the FBI was unable to unlock the phone and recover its contents, a federal judge recently ordered Apple to provide “reasonable technical assistance to assist law enforcement agents in obtaining access to the data” on the device.

Below is a statement from House Judiciary Committee Chairman Bob Goodlatte (R-Va.) and Ranking Member John Conyers (D-Mich.) on this hearing.

“The widespread use of strong encryption has implications both for Americans’ privacy and security. As technology companies have made great strides to enhance the security of Americans’ personal and private information, law enforcement agencies face new challenges when attempting to access encrypted information. Americans have a right to strong privacy protections and Congress should fully examine the issue to be sure those are in place while finding ways to help law enforcement fight crime and keep us safe.

“Next week, the House Judiciary Committee will continue its examination of encryption and the questions it raises for Americans and lawmakers. As we move forward, our goal is to find a solution that allows law enforcement to effectively enforce the law without harming the competitiveness of U.S. encryption providers or the privacy protections of U.S. citizens.”

Witnesses for the hearing are:

Panel I

·         The Honorable James B. Comey, Director, Federal Bureau of Investigation

Panel II

·         Mr. Bruce Sewell, Senior Vice President and General Counsel, Apple, Inc.

·         Ms. Susan Landau, Professor, Worcester Polytechnic Institute

·         Mr. Cyrus R. Vance, Jr., District Attorney, New York County

This hearing will take place in 2141 Rayburn House Office Building and will be webcast live at http://judiciary.house.gov/. Camera crews wishing to cover must be congressionally-credentialed and RSVP with the House Radio-TV Gallery at (202) 225-5214.

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Senior House Judiciary Committee Democrats Express Concern Over Government Attempts to Undermine Encryption

Washington, D.C.—Earlier this week, through a court order, the United States government demanded that Apple Inc. help the Federal Bureau of Investigation (FBI) develop software in an effort to break the encryption on an iPhone that was recovered after the recent shootings in San Bernardino, California.  The government cited the “All Writs Act,” enacted in 1789, to demand that the technology company create a new version of the iPhone operating system to circumvent several security features on the device.  Apple has five days to respond to the court’s order.  The House Judiciary Committee will hold an oversight hearing on the encryption debate on March 1.

Dean of the U.S. House
of Representatives
John Conyers, Jr.

Senior Democratic Members of the House Judiciary Committee, Reps. Conyers, Nadler, Lofgren and Jackson Lee, released the following statement in response:

“The terrorist attack in San Bernardino was a tragic event.  We agree that heightened vigilance is necessary to combat the threat of home grown extremism in all of its forms.  In this effort, we commit our full support to law enforcement agencies at the local, state, and federal levels and hope to provide them with the resources and tools they require to perform their jobs. 

“But there is little reason for the government to make this demand on Apple—except to enact a policy proposal that has gained no traction in Congress and was rejected by the White House.

“Properly understood, strong encryption is our best defense against online criminals—including terrorist organizations.  It is the backbone of the Internet economy and vital for the protection of both free expression and privacy.  The government’s demand on Apple would coerce a private U.S. company to hack its own device, threatening the trust of millions of customers and placing our technology industry at a significant disadvantage abroad. 

“In a September 2015 article, the Washington Post  cited an email from a top intelligence community official which stated: ‘the legislative environment is very hostile today . . . it could turn in the event of a terrorist attack or criminal event where strong encryption can be shown to have hindered law enforcement.’  We are concerned that the heartbreaking event in San Bernardino is being exploited to undertake an end-run around the legislative process in just this fashion.”

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Floor Statement of the Honorable John Conyers, Jr., Ranking Member of the Committee on the Judiciary on H.R. 1927, the “Fairness in Class Action Litigation and Further Asbestos Claims Transparency Act of 2015"

“Mr.  Chair – I rise in strong opposition to H.R. 1927, the ‘Fairness in Class Action Litigation and Furthering Asbestos Claims Transparency Act of 2015.’

“I oppose this legislation because it shields corporate wrongdoers by making it more difficult for those who have been harmed by their actions from obtaining justice and allows these wrongdoers to further victimize their victims.

“Among H.R. 1927's many flaws is the fact that this legislation will have the effect of denying individuals access to justice and threatening victims of corporate wrongdoing, all in the name of protecting the powerful.

“This legislation is just the latest attempt to take power away from ordinary citizens and place it in the hands of the most powerful corporations and industries.

“Whether it is by making it almost impossible for ordinary people to pursue their day in court through the important class action mechanism or threatening the privacy of asbestos victims, it is clear that H.R. 1927 does not have the interests of ordinary people in mind.

“And it raises the broader question of who rightfully should hold power in a representative democracy like ours – politically unaccountable corporations who seek only to maximize their own profit, or the people, who are supposed to be sovereign.  I say it is the people.

“Section 2 of H.R. 1927 will make it virtually impossible for victims of corporate wrongdoing to obtain relief through class actions in cases seeking monetary relief by requiring a party seeking class certification to show that every potential class member suffered the same type and scope of injury at the certification stage.

“Class actions are an important means for consumers to hold wrongdoers accountable without having to engage in multiple duplicative actions.

“Most importantly, class actions make it financially feasible for those who have smaller, but not inconsequential injuries to obtain justice. 

“These injuries include such diverse matters as breach of warranty, products liability, and employment discrimination.

“As it is, class actions are very difficult to pursue.  Under current procedure, the courts strictly limit the grounds by which a large group of plaintiffs may be certified as a class, including the requirement that their claims raise common and factual legal questions and that the class representative’s claims are typical of those of the other class members.

“Rather than improving upon this class certification process, however, H.R. 1927 imposes requirements that are almost impossible to meet, effectively undermining the use of class actions.

“Finally, section 3 of H.R. 1927 gives asbestos defendants – the very entities whose products injured millions of Americans– new weapons with which to harm their victims. 

“Section 3 requires a bankruptcy asbestos trust to report on the court’s public case docket – which is then made available on the Internet – the name and exposure history of each asbestos victim who receives payment from such trust as well as the basis of any payment made to the victim.  

“As a result, the confidential personal information of asbestos claimants – including their names and exposure histories – would be irretrievably released into the public domain. 

“Just imagine what identity thieves, and others, such as insurers, potential employers, lenders, and data collectors could do with this sensitive information. 

“Essentially, this bill re-victimizes asbestos victims by exposing their private information to the public – information that has absolutely nothing to do with compensation for asbestos exposure. 

      

“This explains why asbestos victims vigorously oppose this legislation as it is an assault against their privacy interests.

“In sum, H.R. 1927 is a seriously flawed bill that only benefits those who caused harm to others. Not surprisingly, the White House issued a veto threat, stating that the Administration ‘strongly opposes House passage of H.R. 1927 because it would impair the enforcement of important Federal laws, constrain access to the courts, and needlessly threaten the privacy of asbestos victims.’

“For these reasons, I urge strong opposition to H.R. 1927 and I reserve the balance of my time.”

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Statement of the Honorable John Conyers, Jr. on H.R. 699, “The Email Privacy Act”

Dean of the U.S. House
of Representatives
John Conyers, Jr.

“As of this morning, the bill has earned 304 cosponsors—191 Republicans, 113 Democrats, and 27 members of the House Judiciary Committee.  What do all of these members have in common?

           

“First, we all agree that the Electronic Communications Privacy Act is outdated and provides unjustifiably inconsistent standards for government access to our stored communications.

           

“This statute continues to serve as one of the main guarantees of our digital privacy.

           

“But the law was designed in 1986, when few of us used email, and fewer imagined a world in which we could so freely share information online.

            “The consequences of applying a thirty-year-old understanding of technology to modern communications are inconsistent, at best. 

            “For example, the law seems to apply different standards for government access to the same email at different points in its lifecycle—when it is drafted, when it is transmitted, when it opened by its recipient, and when it is archived in the cloud.

            “We are not well-served by a law whose application is unpredictable, and that the courts have had great difficulty interpreting. 

            “Because of the rapid pace of technological change, this situation will only get worse if we do not act.

            “Second, the sponsors of this bill agree that the government should be obligated to show probable cause before it can force a provider to disclose the content its customer’s email—no matter how old the message is.

            “This standard is consistent with the holding of the Sixth Circuit in U.S. v. Warshak in 2010.  That case motivated the Department of Justice to voluntarily adopt a warrants-for-email standard. 

            “It also effectively ended the unconstitutional use of subpoenas to compel third parties to produce content in civil enforcement actions.

            “Current law requires the government to show probable cause and obtain a warrant only for email that has been in storage for 180 days or less.  But the government can use an subpoena for the same email if it is stored for one day longer.

           

“This is no longer acceptable to most Americans.  As the Sixth Circuit rightly observed, citizens have the same reasonable expectation of privacy in their email before and after the 180-day mark.

            “And as the Department of Justice testified soon thereafter, “there is no principled basis to treat email less than 180 days old differently than email more than 180 days old.”

            “Third, the sponsors of H.R.699 all agree that current law is not adequate to protect new forms of digital communication.

            “Content is content.  Our expectation of privacy does not diminish merely because Congress didn’t think of the medium when it last visited the statute.  The law should protect electronic communications across the board:  email, text messages, private messaging of all sort, and other forms of digital information stored in the cloud.

           

“Finally, the sponsors of this bill agree that we must act without delay.

            “We have an obligation to provide clear standards to law enforcement with respect to emerging technologies.

            “We should also recognize that American businesses cannot sustain these new technologies if consumers cannot trust them.

            “As the Committee takes up this bill, we should ensure that it does not conflict with the basic notion that the government’s seizure of our email without a warrant violates the Fourth Amendment.

            “But we should note that this principle has already taken hold across the federal government.  The Department of Justice already uses warrants for email in criminal cases. 

            “The government stopped using lesser process in the civil context years ago.

            “In short, Mr. Chairman, this legislation accomplishes two vital tasks: it updates the statute for modern use, and it does so without any significant interruption to law enforcement.

            “We should come together on this bill as soon as possible.

            “I thank the witnesses for their testimony today and I urge my colleagues to give this measure their full support.”    

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Conyers: Bipartisan Consensus that Unchecked, Sweeping Surveillance Programs Must End

(WASHINGTON) – Today, the U.S. House Judiciary Committee held a full committee hearing on, “Oversight of the administration’s Use of Foreign Intelligence Surveillance Act (FISA) Authorities.”  The U.S. House Judiciary Committee is the committee of primary jurisdiction for both authorities principally discussed at the hearing today: Section 215 of the USA PATRIOT Act and Section 702 of the FISA Amendments Act. Following his opening remarks, Ranking Member John Conyers, Jr. (D-Mich.) issued the following statement:

“Over the past decade – under the leadership of four chairmen with diverse political views – the members of the Judiciary Committee have vigorously debated the proper balance between public safety and the constitutional right to privacy.  We never – at any point during this debate – approved the type of unchecked, sweeping surveillance of United States citizens employed by the federal government in the name of fighting the so-called war on terrorism.”

“This is not and should not be a partisan issue. The Judiciary Committee should work together in a bipartisan fashion to increase our oversight of these programs, and to increase the accountability of the federal government to the American people. As a first step, Congress should work to make more information about government surveillance programs available to the public. If the government cannot provide us with a clear explanation for its actions, I will urge President Obama to terminate these programs immediately.

“The administration has made various arguments to justify its use of these programs. Section 215 of the PATRIOT Act authorizes the government to obtain certain business records only if it can show to the FISA Court that the records are ‘relevant’ to an ongoing national security investigation. The Judiciary Committee added this ‘relevance’ standard to Section 215 when we debated reauthorization of the PATRIOT Act in 2005. Although we clearly intended for this Section 215 authority to resemble a grand jury subpoena – directed at a particular individual and related to a specific investigation – we now know that the federal government instead collects records on every phone call made in the United States.

“This widespread surveillance runs counter to the intentions of Congress. And, unfortunately, under Section 215 the government renews its demand for the production of all phone records every 90 days, forcing companies to provide these records on an ongoing basis, apparently without end. By the government’s own admission, there is no limit whatsoever on its collection of metadata under Section 215. I have therefore come to the conclusion that, if the government cannot provide a clear, public explanation for how its program is consistent with the statute, then it must stop collecting this information immediately.

“Various government officials have assured the public that these programs make us safer. But, those assurances have no bearing on the law; indeed, there are many unlawful steps that the government could take to enhance our national security. Unfortunately, I believe that the NSA’s communications surveillance programs fall into this unlawful category by even a cursory reading of the Fourth Amendment.

“This sentiment was underscored in the testimony of two witnesses appearing before the Judiciary Committee in the second panel today.

“Jameel Jaffer of the American Civil Liberties Union noted how, ‘The NSA cannot insulate this program from Fourth Amendment scrutiny simply by promising that Americans’ private information will be safe in its hands. The Fourth Amendment exists to prevent the government from acquiring Americans’ private papers and communications in the first place.’

“And, in addressing the unique concerns posed by the surveillance occurring over online and electronic networks, Kate Martin of the Center for National Security Studies explained, ‘…the notion that Fourth Amendment protections have no applicability to information about an individual held by third parties, no longer hold in the new world of massive electronic data about individuals held by Internet service providers, telecommunications companies and others.’

“President Obama has called for a public discussion about these surveillance authorities. I agree. But if we are to have that honest discussion, we should focus on options to improve both public scrutiny and congressional oversight of these surveillance programs. One option would be to publicly release significant FISA court opinions or unclassified summaries of these opinions. This would subject the government’s legal claims to much-needed public scrutiny.

“If we are to strike the right balance with these surveillance authorities, then we must bring the public into the conversation without delay.  Instead of simply asking our constituents to trust us, I am asking you, the executive branch, to trust them.”

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