Congressional Record, Volume 144 Issue 16 (Thursday, February 26, 1998)

[Congressional Record Volume 144, Number 16 (Thursday, February 26, 1998)]
[House]
[Pages H636-H645]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

WIRELESS TELEPHONE PROTECTION ACT

Ms. PRYCE of Ohio. Mr. Speaker, by the direction of the Committee on
Rules, I call up House Resolution 368 and ask for its immediate
consideration.
The Clerk read the resolution, as follows:

H. Res. 368

Resolved, That at any time after the adoption of this
resolution the Speaker may, pursuant to clause 1(b) of rule
XXIII, declare the House resolved into the Committee of the
Whole House on the state of the Union for consideration of
the bill (H.R. 2460) to amend title 18, United States Code,
with respect to scanning receivers and similar devices. The
first reading of the bill shall be dispensed with. Points of
order against consideration of the bill for failure to comply
with clause 2(l)(6) of rule XI are waived. General debate
shall be confined to the bill and shall not exceed one hour
equally divided and controlled by the chairman and ranking
minority member of the Committee on the Judiciary. After
general debate the bill shall be considered for amendment
under the five-minute rule. It shall be in order to consider
as an original bill for the purpose of amendment under the
five-minute rule the amendment in the nature of a substitute
recommended by the Committee on the Judiciary now printed in
the bill. Each section of the committee amendment in the
nature of a substitute shall be considered as read. During
consideration of the bill for amendment, the Chairman of the
Committee of the Whole may accord priority in recognition on
the basis of whether the Member offering an amendment has
caused it to be printed in the portion of the Congressional
Record designated for that purpose in clause 6 of rule XXIII.
Amendments so printed shall be considered as read. The
Chairman of the Committee of the Whole may: (1) postpone
until a time during further consideration in the Committee of
the Whole a request for a recorded vote on

[[Page H637]]

any amendment; and (2) reduce to five minutes the minimum
time for electronic voting on any postponed question that
follows another electronic vote without intervening business,
provided that the minimum time for electronic voting on the
first in any series of questions shall be fifteen minutes. At
the conclusion of consideration of the bill for amendment the
Committee shall rise and report the bill to the House with
such amendments as may have been adopted. Any Member may
demand a separate vote in the House on any amendment adopted
in the Committee of the Whole to the bill or to the committee
amendment in the nature of a substitute. The previous
question shall be considered as ordered on the bill and
amendments thereto to final passage without intervening
motion except one motion to recommit with or without
instructions.
Sec. 2. After passage of H.R. 2460, it shall be in order to
consider in the House S. 493. It shall be in order to move
that the House strike all after the enacting clause of the
Senate bill and insert in lieu thereof the provisions of H.R.
2460 as passed by the House.

The SPEAKER pro tempore (Mr. Tiahrt). The gentlewoman from Ohio (Ms.
Pryce) is recognized for 1 hour.
Ms. PRYCE of Ohio. Mr. Speaker, for purposes of debate only, I yield
the customary 30 minutes to my good friend, the gentleman from Ohio
(Mr. Hall), pending which I yield myself such time as I may consume.
During consideration of this resolution, all time yielded is for the
purpose of debate only.
Mr. Speaker, House Resolution 368 is a fair and open rule providing
for the consideration of H.R. 2460, the Wireless Telephone Protection
Act.
The rule provides for 1 hour of general debate equally divided
between the chairman and ranking member of the Committee on the
Judiciary. For the purposes of amendment, the rule makes in order the
Committee on the Judiciary amendment in the nature of a substitute as
an original bill and, under this rule, any germane amendment may be
offered, with priority recognition given to those Members who have
preprinted their amendments in the Congressional Record.
In addition, the rule provides for the customary motion to recommit,
with or without instructions.
In order to bring this legislation to the floor today, it is
necessary to waive clause 2(L)(6) of Rule XI, which requires a 3-day
layover of the committee report, and this rule provides such a waiver.
Further, to expedite consideration of H.R. 2460, the chairman of the
committee will be permitted to postpone votes during consideration of
the bill and reduce voting time to 5 minutes on a postponed question as
long as it follows a 15-minute vote.
Finally, the rule provides that upon House passage, it will be in
order to move to insert the House language in the Senate bill number.
This provision is included because the Senate has already passed the
Wireless Telephone Protection Act.
Mr. Speaker, I hope all of my colleagues will support this fair and
open rule so that we may proceed with a thorough debate of the
underlying legislation, which the Committee on the Judiciary reported
favorably by voice vote.
The goal of 2460 is straightforward. It seeks to deter cellular
telephone fraud. As our society becomes increasingly reliant on
cellular technology it is important that we have the tools to
discourage and prosecute fraud in the wireless telephone industry.
The pervasiveness of such fraud is startling. In fact, calls made
from stolen or cloned telephones are responsible for losses to the
industry of close to $710 million.
The dollars lost are very significant, but perhaps more worrisome are
the much more serious crimes which are related to cellular fraud. For
example, it is becoming common practice for drug dealers to use cloned
telephones to avoid detection when making calls to their sources and
clients.
Under current law, prosecutors must prove that a person who possessed
or used technology to obtain unauthorized access to telecommunications
services had the ``intent to defraud.'' But law enforcement officials
have pointed out that this is often too hard to meet the standard and
prove a violation of Federal law.
H.R. 2460 responds to this legal obstacle by removing the ``intent to
defraud'' standard, recognizing that there is no reason why any person
not working in the wireless telephone industry or in law enforcement
would need such high-tech equipment unless they are intending to use it
to clone cellular telephones. This change in the law will enable the
government to successfully prosecute and punish the fraudulent use of
cellular technology.
Another provision of H.R. 2460 will clean up existing law by
clarifying the penalties which may be imposed for cellular telephone
fraud, allowing for a 15-year maximum penalty for violations.
Mr. Speaker, the gentleman from Florida (Mr. McCollum), the chairman
of the Subcommittee on Crime, explained to the Committee on Rules that
this legislation is not controversial; and he requested that the
legislation be considered under an open rule so that any Member who may
be uncomfortable with the bill will have the opportunity to amend it.
The Committee on Rules was pleased to honor that request. In fact,
the rule was reported out of committee by voice vote without dissent.
So I urge my colleagues to support a free and fair debate on the
Wireless Telephone Protection Act by voting ``yes'' on this rule.
Mr. Speaker, I reserve the balance of my time.
(Mr. HALL of Ohio asked and was given permission to revise and extend
his remarks.)
Mr. HALL of Ohio. Mr. Speaker, I yield myself such time as I may
consume, and I want to thank my colleague, the gentlewoman from Ohio
(Ms. Pryce) for yielding me this time.
This is an open rule. It will allow for full and fair debate.
As my colleague just described, this rule provides for 1 hour of
general debate, equally divided and controlled by the chairman and
ranking minority member of the Committee on the Judiciary. Under this
rule, amendments will be allowed under the 5-minute rule. This is the
normal amending process in the House. All Members on both sides of the
aisle will have the opportunity to offer amendments.
Fraud involving cellular telephones is a significant criminal problem
in this country. Cell phone fraud is often linked to other, more
serious crimes when criminals use illegal phones to avoid detection of
their activities.
This measure will make it easier to obtain convictions against
criminals involved in cell phone fraud. It is a bipartisan bill with
support on both sides of the aisle. The Committee on Rules approved
this by a voice vote, and I urge adoption of the rule.
Ms. PRYCE of Ohio. Mr. Speaker, I have no further requests for time,
and I yield back the balance of my time.
Mr. HALL of Ohio. Mr. Speaker, I have no further requests for time,
and I yield back the balance of my time.
Ms. PRYCE of Ohio. Mr. Speaker, I move the previous question on the
resolution.
The previous question was ordered.
The resolution was agreed to.
A motion to reconsider was laid on the table.
The SPEAKER pro tempore. Pursuant to House Resolution 368 and rule
XXIII, the Chair declares the House in the Committee of the Whole House
on the State of the Union for consideration of the bill, H.R. 2460.

{time} 1040

In the Committee of the Whole

Accordingly, the House resolved itself into the Committee of the
Whole House on the State of the Union for the consideration of the bill
(H.R. 2460) to amend title 18, United States Code, with respect to
scanning receivers and similar devices, with Mr. Collins in the chair.
The Clerk read the title of the bill.
The CHAIRMAN. Pursuant to the rule, the bill is considered as having
been read the first time.
Under the rule, the gentleman from Florida (Mr. McCollum) and the
gentleman from Florida (Mr. Wexler) each will control 30 minutes.
The Chair recognizes the gentleman from Florida (Mr. McCollum).
Mr. McCOLLUM. Mr. Chairman, I yield myself such time as I may
consume.
I am pleased to rise in support of H.R. 2460, the Wireless Protection
Act. This bill, introduced by the gentleman from Texas (Mr. Sam
Johnson), is truly a bipartisan effort. I am proud to say that I was an
original cosponsor of the bill, together with the gentleman from New
York (Mr. Schumer), who is the ranking minority member of the
Subcommittee on Crime, which I chair.

[[Page H638]]

This bill will close a loophole in a statute Congress passed in 1994
to fight cellular telephone fraud.
At a hearing before the Subcommittee on Crime last year, witnesses
from both the wireless industry and law enforcement testified that
cellular telephone fraud is a significant criminal activity in the
United States. In 1996, the wireless telephone industry lost over $700
million in revenue as a result of calls made from stolen or cloned
phones.
As important as that loss is, it is important that Members bear in
mind that criminals often use these illegal telephones as a means to
evade detection while they plan and commit other crimes. This
phenomenon is most prevalent in drug crimes, where criminals frequently
use several cloned phones in a day, or routinely switch from one cloned
phone to another each day in order to evade detection.
In 1994, Congress amended section 1029 of Title 18 to make it a crime
to knowingly and with intent to defraud possess hardware or software
configured to clone wireless telephones. However, law enforcement
officials have testified before the Subcommittee on Crime that it is
often impossible to prove the intent to defraud element of this
section.
Even in the most common case, law enforcement officials will arrest
criminals for other crimes and find the telephone cloning equipment in
the possession of the criminals, which has been, of course, used to
make the cloned phones. However, they do so without finding specific
evidence that the criminals intended to use this equipment to clone the
wireless telephones; and if they do not find that evidence, law
enforcement officials often have been thwarted in proving a violation
of this statute.
Because there is no legitimate reason why an ordinary person would
possess this equipment, there is no doubt that the intent of these
criminals was to use that equipment to clone cellular phones. In order
to remedy this problem, H.R. 2460 amends section 1029 to eliminate the
``intent to defraud'' requirement concerning the possession of this
equipment.
In order to ensure that telecommunications company employees may
continue to use these devices, however, the bill provides that it is
not a violation of the amended statute for an officer, employee or
agent of a facilities-based carrier to use, produce, have custody or
control of or possess the hardware or software described in that
subsection if they are doing it for the purpose of protecting the
property or legal rights of that carrier.

{time} 1045

The bill provides a definition of facilities-based carrier to make it
clear to whom the exception applies. The bill also clarifies the
penalties which may be imposed for violations of section 1029. Under
existing law, violations of some subsections of this statute are
subject to two different maximum penalties. The bill deletes this
duplicative language and restates the entire punishment section of 1029
to more clearly state the maximum punishments for each possible
violation of that section. Finally, the bill directs the United States
Sentencing Commission to review and, if appropriate, amend its
guidelines and policy statements so as to provide an appropriate
penalty for each of the offenses involving the cloning of wireless
telephones.
Mr. Chairman, I would like to again reiterate the thrust of this
bill. It is to provide for a situation where we can gain more
prosecutions successfully, gain more convictions of those who are out
there cloning telephones. The idea is that if one has this telephone
cloning equipment, there is no possible earthly reason for him to have
it unless he has got it there to clone phones. The only people who
should have that equipment are the folks who are the manufacturers, the
people who are in the telephone equipment company business who are
professionals designed to have it. Therefore, in order to gain these
convictions, since proving the intent to clone is not something that we
have been able to do, we are making it in this case a criminal
violation to possess in essence this equipment without having to prove
the intent element.
It is a very simple bill, a very important bill, because telephone
cloning is a very big business in this country and it involves a lot of
criminal activity at all levels. Mr. Chairman, with that in mind, I
urge the adoption of this bill.
Mr. Chairman, I reserve the balance of my time.
Mr. WEXLER. Mr. Chairman, I yield myself such time as I may consume.
I rise in support of this bill and commend the gentleman from Texas
(Mr. Sam Johnson) along with the gentleman from Florida (Mr. McCollum)
and the gentleman from New York (Mr. Schumer), the ranking member, for
their work on this bill.
Mr. Chairman, cell phone cloning is the hottest new scam on the
street. Cloning costs phone companies and their customers more than
$650 million a year. It lets drug cartels operate in secrecy, away from
the reach of law enforcement surveillance. Cloned cell phones are
rapidly becoming the main communication network of drug runners and
street gangs. The reason is that cloned phones not only allow the
criminals to cheat the phone company, but they also evade wire taps. A
drug dealer will often have 20 or more cloned phones, constantly
switching among them to cover his tracks.
The gentleman from Florida (Mr. McCollum) has already explained how
the cloning process works. This bill will ban the copycat machines that
criminals use to make cloned phones. These machines are freely
advertised in magazines and on the Internet from anywhere from $1100 to
$2500. Yet the only reason anyone would buy these devices is to defraud
innocent consumers. Under current law, copycat machines are illegal
only if the government can prove an intent to defraud. That is often
impossible to prove and it permits unscrupulous manufacturers to keep
making the machines and offering them for sale. This bill will ban the
copycat machines outright.
There has been one concern raised about the bill. Some cell phone
companies are concerned that the language of the bill might
inadvertently apply to machinery used by legitimate companies to test
or reprogram their equipment. I understand that the gentleman from
Florida (Mr. McCollum) will offer an amendment in the nature of a
substitute that cures this problem. I expect to fully support the bill
after that amendment.
I also want to note that with the amendment, the wireless industry
fully supports the bill. In fact, at a hearing before the Subcommittee
on Crime, representatives from both the cell phone industry and from
law enforcement testified about the rapid increase they are seeing in
cloning activity and the need to take these copycat devices out of
circulation among the general public.
Mr. Chairman, I urge support for this bill.
Mr. Chairman, I yield back the balance of my time.
Mr. McCOLLUM. Mr. Chairman, I yield such time as he may consume to
the gentleman from Texas (Mr. Sam Johnson), the author of this bill.
(Mr. SAM JOHNSON of Texas asked and was given permission to revise
and extend his remarks.)
Mr. SAM JOHNSON of Texas. Mr. Chairman, I thank the gentleman from
Florida (Mr. McCollum) for yielding me this time and for his valuable
assistance in helping make this bill possible.
The Wireless Telephone Protection Act is really another effort of
ours to stop crime in this country. It is going to outlaw equipment
which is used to steal cellular telephone numbers. For those who are
not familiar with cellular cloning, the process is simple. Criminals
sit in parked cars outside airports or along roadways and use special
software and equipment to steal the electronic serial numbers from any
person who uses a cellular phone within range. The stolen numbers are
then programmed into other cell phones, called clones, and finally
charges are made to the unsuspecting person's account, like me, for
instance. My phone was cloned last year while I was standing on the
curb at D-FW Airport, that is Dallas-Fort Worth, waiting for my wife. I
ended up with over a $6,000 phone bill for calls that I did not make.
There were calls made to places all over the world, including Spain,
Colombia and Mexico. Later while I was on my phone with the telephone
company trying to get this problem resolved, my personal phone number
was still being used to make calls while I was talking to the phone
company.

[[Page H639]]

The tactic of using stolen phone numbers is commonly employed by drug
dealers and gang members who are trying to evade law enforcement
wiretaps or other surveillance. It is estimated that the cellular
industry loses about $650 million per year due to this illegal
activity. It increases the cost to every cellular phone user in the
country.
I hope that as a result of this bill, we can stop this fraud and help
keep costs down for both the industry and the consumer. Cellular phone
use is expanding by about 40 percent per year. With this increase, the
Secret Service has doubled the number of arrests due to fraud every
year since 1991. I am certain our law enforcement personnel could
prosecute more criminals, as the gentleman from Florida (Mr. McCollum)
says, if the current law permitted it, and it does not.
Current law requires prosecutors to prove that a criminal acted with
the intent to defraud. This means that an officer must catch the crook
in the act of cloning to be arrested, which is next to impossible. The
bill removes this burden. Now criminals will be arrested for possessing
or manufacturing the cloning equipment, which has no other purpose than
to steal a phone number.
I have got an advertisement here that shows how easy it is to buy
this cloning equipment. If we look at the fine print, it states that
the equipment is used for educational or experimental purposes. That is
kind of false. In fact, it is against the law. According to the Secret
Service, there is no lawful purpose to possess, produce or sell
hardware or software used to clone a wireless telephone.
This is good, common sense legislation that is supported on both
sides of the aisle. As my colleagues can see here, it is also supported
by the Department of Justice, the U.S. Secret Service, and the cellular
wireless industry, as my colleague has already stated. Every Member of
this House has constituents who have been the victim of cell phone
cloning. It causes them great stress, and I can tell my colleagues when
you get a bill for 6,000 bucks on your phone, it is a shock.
Let me just tell Members how James Kallstrom, the former head of the
FBI, New York office, describes phone cloners. He says, quote, they are
hard core criminals, murderers, kidnappers, terrorists, major drug
dealers, child pornographers and pedophiles, violent criminals who use
technology to avoid the law. We must stop this criminal activity now.
This bill will do it. I urge Members' support.
Mr. McCOLLUM. Mr. Chairman, I yield such time as she may consume to
the gentlewoman from Maryland (Mrs. Morella).
Mrs. MORELLA. Mr. Chairman, I thank the gentleman for yielding me
this time. I would like to engage the gentleman in a colloquy on
cellular extension phones.
Mr. Chairman, I understand that many cellular subscribers find it
advantageous to have two cellular phones with the same number. In this
way, someone trying to reach a subscriber need only dial one number and
the subscriber will be able to receive the call on either his or her
car phone or on his or her portable hand-held phone. I also understand
that the FCC currently prohibits companies from altering the electronic
serial number of a cellular phone to allow more than one phone to have
the same telephone number, but that the commission has been asked to
reconsider that rule. I wonder, how would this bill affect the petition
for reconsideration of this matter that is now pending before the FCC?
Mr. McCOLLUM. Mr. Chairman, will the gentlewoman yield?
Mrs. MORELLA. I yield to the gentleman from Florida.
Mr. McCOLLUM. I thank the gentlewoman for her inquiry. In passing
H.R. 2460, we do not intend to direct the FCC to act in one way or
another on the pending petition for reconsideration that she has
described. If the FCC were to change its rules, however, I think it is
important for Members to understand that even though they did change
those rules, the bill would still prevent the use, possession,
production, and so forth, of hardware or software to insert or modify
electronic serial numbers or other telecommunication identifying
information to create extension phones. If the FCC does decide that a
change in its rules serves the public interest, I would be willing to
consider amending section 1029 in such a way as to conform the bill to
the spirit of the FCC's decision, yet still making sure that this
equipment would be unlikely to fall into the hands of criminals.
Mrs. MORELLA. Mr. Chairman, that sounds reasonable.
Mr. McCOLLUM. Mr. Chairman, I yield such time as he may consume to
the gentleman from Arkansas (Mr. Hutchinson), a member of the
committee.
Mr. HUTCHINSON. Mr. Chairman, I rise in strong support of H.R. 2460,
the Wireless Telephone Protection Act, and commend the gentleman from
Texas (Mr. Sam Johnson) for introducing the legislation. I also want to
commend the leadership of the gentleman from Florida (Mr. McCollum) for
his excellent work in behalf of this important legislation.
We have known for some time that a significant amount of criminal
activity in the United States involves the use of cellular telephones
and cloned phone numbers. Each year the cellular telephone industry
loses millions of dollars in revenue as a result of the use of cell
phones that are being illegally cloned. But more important, the
greatest difficulty is in the arena of law enforcement. Those people
who are trying to put drug dealers in jail have difficulty with the
illegal use of cloned phones. Criminals frequently clone the cell phone
number of an unsuspecting, innocent party and then use this cloned
number to engage in criminal activity, especially drug-related crimes.
The process of cloning involves the use of a device which captures
the identifying information in the telephone and a second device which
is used to reprogram the subsequent phones. Current Federal law
requires a prosecutor to prove that persons in possession of those
devices had an intent to defraud. This standard is very difficult to
meet and since these devices have no legitimate purpose except for the
use by the telephone companies themselves, then I believe it is very
important to remove the intent requirement and make possession itself a
crime.
As a parent of teenagers, very concerned about the drug culture that
is so prominent in our society, as a former Federal prosecutor, I
believe this is critically important in order to address the problems
of drugs in our society and the use of cloned phones by the drug
dealers.
Mr. Chairman, about a year ago the Subcommittee on Crime held a
hearing on drug interdiction efforts in the Caribbean. One of the
issues that repeatedly resurfaced during our discussions with law
enforcement was the problems posed by cloned cell phones. This
legislation provides an important tool for prosecutors to use in the
war against drugs and as such I urge my colleagues to support it.
Mr. PAUL. Mr. Speaker, I rise today in opposition of H.R. 2460, The
Wireless Telephone Protection Act. Setting aside the vital and relevant
question of whether the enumerated powers and tenth amendment allow the
federal government to make possession of electronic scanning devices
criminal, another aspect of this bill should have met with harsh
criticism from those who hold individual liberties in even some regard.
Under current ``anti-cloning'' law, prosecutors must prove a
defendant intended to use scanning equipment illegally, or have an
``intent'' to defraud. This bill shifts the burden of proof of
``innocent use'' from the prosecutor to the defendant.
The United States Constitution prohibits this federal government from
depriving a person of life, liberty, or property without due process of
law. Pursuant to this constitutional provision, a criminal defendant is
presumed to be innocent of the crime charged and, pursuant to what is
often called ``the Winship doctrine,'' the persecution is allocated the
burden of persuading the fact-finder of every fact necessary to
constitute the crime . . . charged.'' The prosecution must carry this
burden because of the immense interests at stake in a criminal
prosecution, namely that a conviction often results in the loss of
liberty or life (in this case, a sentence of up to ten years).
This radical departure from the long held notion of ``innocent until
proven guilty'' warrants opposition to this bill.
Mr. McCOLLUM. Mr. Chairman, I have no further requests for time, and
I yield back the balance of my time.
The CHAIRMAN. All time for general debate has expired.
The committee amendment in the nature of a substitute printed in the
bill shall be considered by section as an

[[Page H640]]

original bill for the purpose of amendment, and pursuant to the rule
each section is considered read.
During consideration of the bill for amendment, the Chair may accord
priority in recognition to a Member offering an amendment that he has
printed in the designated place in the Congressional Record. Those
amendments will be considered read.
The Chairman of the Committee of the Whole may postpone a request for
a recorded vote on any amendment and may reduce to a minimum of 5
minutes the time for voting on any postponed question that immediately
follows another vote, provided that the time for voting on the first
question shall be a minimum of 15 minutes.
The Clerk will designate section 1.
The text of section 1 is as follows:

SECTION 1. SHORT TITLE.

This Act may be cited as the ``Wireless Telephone
Protection Act''.

{time} 1100

The CHAIRMAN. Are there any amendments to section 1?
If not, the Clerk will designate section 2.
The text of section 2 is as follows:

SEC. 2. FRAUD AND RELATED ACTIVITY IN CONNECTION WITH
COUNTERFEIT ACCESS DEVICES.

(a) Unlawful Acts.--Section 1029(a) of title 18, United
States Code, is amended--
(1) by redesignating paragraph (9) as paragraph (10); and
(2) by striking paragraph (8) and inserting the following:
``(8) knowingly and with intent to defraud uses, produces,
traffics in, has control or custody of, or possesses a
scanning receiver;
``(9) knowingly uses, produces, traffics in, has control or
custody of, or possesses hardware or software, knowing it has
been configured for altering or modifying a
telecommunications instrument so that such instrument may be
used to obtain unauthorized access to telecommunications
services; or''.
(b) Penalties.--
(1) Generally.--Section 1029(c) of title 18, United States
Code, is amended to read as follows:
``(c) Penalties.--The punishment for an offense under
subsection (a) of this section is--
``(1) in the case of an offense that does not occur after a
conviction for another offense under this section--
``(A) if the offense is under paragraph (1), (2), (3), (6),
(7), or (10) of subsection (a), a fine under this title or
imprisonment for not more than 10 years, or both; and
``(B) if the offense is under paragraph (4), (5), (8), or
(9), of subsection (a), a fine under this title or
imprisonment for not more than 15 years, or both; and
``(2) in the case of an offense that occurs after a
conviction for another offense under this section, a fine
under this title or imprisonment for not more than 20 years,
or both.''.
(2) Attempts.--Section 1029(b)(1) of title 18, United
States Code, is amended by striking ``punished as provided in
subsection (c) of this section'' and inserting ``subject to
the same penalties as those prescribed for the offense
attempted''.
(c) Definitions.--Section 1029(e)(8) of title 18, United
States Code, is amended by inserting before the period ``or
to intercept an electronic serial number, mobile
identification number, or other identifier of any
telecommunications service, equipment, or instrument''.
(d) Applicability of New Section 1029(a)(9).--
(1) In general.--Section 1029 of title 18, United States
Code, is amended by adding at the end the following:
``(g) It is not a violation of subsection (a)(9) for an
officer, employee, or agent of, or a person under contract
with, a facilities-based carrier, for the purpose of
protecting the property or legal rights of that carrier, to
use, produce, have custody or control of, or possess hardware
or software configured as described in that subsection
(a)(9).''.
(2) Definition.--Section 1029(e) of title 18, United States
Code is amended--
(A) by striking ``and'' at the end of paragraph (6);
(B) by striking the period at the end of paragraph (7) and
inserting a semicolon;
(C) by striking the period at the end of paragraph (8) and
inserting ``; and''; and
(D) by adding at the end the following:
``(9) the term `facilities-based carrier' means an entity
that owns communications transmission facilities, is
responsible for the operation and maintenance of those
facilities, and holds an operating license issued by the
Federal Communications Commission under the authority of
title III of the Communications Act of 1934.''.
(e) Amendment of Federal Sentencing Guidelines for Wireless
Telephone Cloning.--
(1) In general.--Pursuant to its authority under section
994 of title 28, United States Code, the United States
Sentencing Commission shall review and amend the Federal
sentencing guidelines and the policy statements of the
Commission, if appropriate, to provide an appropriate penalty
for offenses involving the cloning of wireless telephones
(including offenses involving an attempt or conspiracy to
clone a wireless telephone).
(2) Factors for consideration.--In carrying out this
subsection, the Commission shall consider, with respect to
the offenses described in paragraph (1)--
(A) the range of conduct covered by the offenses;
(B) the existing sentences for the offenses;
(C) the extent to which the value of the loss caused by the
offenses (as defined in the Federal sentencing guidelines) is
an adequate measure for establishing penalties under the
Federal sentencing guidelines;
(D) the extent to which sentencing enhancements within the
Federal sentencing guidelines and the court's authority to
sentence above the applicable guideline range are adequate to
ensure punishment at or near the maximum penalty for the most
egregious conduct covered by the offenses;
(E) the extent to which the Federal sentencing guideline
sentences for the offenses have been constrained by statutory
maximum penalties;
(F) the extent to which Federal sentencing guidelines for
the offenses adequately achieve the purposes of sentencing
set forth in section 3553(a)(2) of title 18, United States
Code;
(G) the relationship of Federal sentencing guidelines for
the offenses to the Federal sentencing guidelines for other
offenses of comparable seriousness; and
(H) any other factor that the Commission considers to be
appropriate.

The CHAIRMAN. Are there any amendments to section 2?

Amendment in the Nature of a Substitute Offered by Mr. Mc Collum

Mr. McCOLLUM. Mr. Chairman, I offer an amendment in the nature of a
substitute.
The Clerk read as follows:

Amendment in the nature of a substitute offered by Mr.
McCollum:
Strike all after the enacting clause and insert the
following:

SECTION 1. SHORT TITLE.

This Act may be cited as the ``Wireless Telephone
Protection Act''.

SEC. 2. FRAUD AND RELATED ACTIVITY IN CONNECTION WITH
COUNTERFEIT ACCESS DEVICES.

[[Page H641]]

carrier, unless such conduct is for the purpose of obtaining
telecommunications service provided by another facilities-
based carrier without the authorization of such carrier.
``(2) In a prosecution for a violation of subsection
(a)(9), (other than a violation consisting of producing or
trafficking) it is an affirmative defense (which the
defendant must establish by a preponderance of the evidence)
that the conduct charged was engaged in for research or
development in connection with a lawful purpose.''.
(2) Definitions.--Section 1029(e) of title 18, United
States Code is amended--
(A) by striking ``and'' at the end of paragraph (6);
(B) by striking the period at the end of paragraph (7) and
inserting a semicolon; and
(C) by striking the period at the end of paragraph (8); and
(D) by adding at the end the following:
``(9) the term `telecommunications service' has the meaning
given such term in section 3 of title I of the Communications
Act of 1934 (47 U.S.C. 153));
``(10) the term `facilities-based carrier' means an entity
that owns communications transmission facilities, is
responsible for the operation and maintenance of those
facilities, and holds an operating license issued by the
Federal Communications Commission under the authority of
title III of the Communications Act of 1934; and
``(11) the term `telecommunication identifying information'
means electronic serial number or any other number or signal
that identifies a specific telecommunications instrument or
account, or a specific communication transmitted from a
telecommunications instrument.''.
(e) Amendment of Federal Sentencing Guidelines for Wireless
Telephone Cloning.--
(1) In general.--Pursuant to its authority under section
994 of title 28, United States Code, the United States
Sentencing Commission shall review and amend the Federal
sentencing guidelines and the policy statements of the
Commission, if appropriate, to provide an appropriate penalty
for offenses involving the cloning of wireless telephones
(including offenses involving an attempt or conspiracy to
clone a wireless telephone).
(2) Factors for consideration.--In carrying out this
subsection, the Commission shall consider, with respect to
the offenses described in paragraph (1)--
(A) the range of conduct covered by the offenses;
(B) the existing sentences for the offenses;
(C) the extent to which the value of the loss caused by the
offenses (as defined in the Federal sentencing guidelines) is
an adequate measure for establishing penalties under the
Federal sentencing guidelines;
(D) the extent to which sentencing enhancements within the
Federal sentencing guidelines and the court's authority to
sentence above the applicable guideline range are adequate to
ensure punishment at or near the maximum penalty for the most
egregious conduct covered by the offenses;
(E) the extent to which the Federal sentencing guideline
sentences for the offenses have been constrained by statutory
maximum penalties;
(G) the extent to which Federal sentencing guidelines for
the offenses adequately achieve the purposes of sentencing
set forth in section 3553(a)(2) of title 18, United States
Code;
(H) the relationship of Federal sentencing guidelines for
the offenses to the Federal sentencing guidelines for other
offenses of comparable seriousness; and
(I) any other factor that the Commission considers to be
appropriate.

Mr. McCOLLUM (during the reading). Mr. Chairman, I ask unanimous
consent that the amendment be considered as read and printed in the
record.
The CHAIRMAN. Is there objection to the request of the gentleman from
Florida?
There was no objection.
Mr. McCOLLUM. Mr. Chairman, I will be brief in supporting this
amendment in the nature of a substitute, but it does contain a number
of technical amendments that we need to talk about. The manager's
amendment makes changes to H.R. 2460 from the form in which the bill
was reported from the full Committee on the Judiciary. It reflects the
input of minority members of the Committee on the Judiciary, the
cellular telephone industry, the Justice Department of the United
States, Secret Service and members of the Committee on the Judiciary of
the other body which passed a bill similar to H.R. 2460 at the end of
last year.
Mr. Chairman, the minority has indicated support of this amendment,
but for the benefit of all Members, I will briefly outline the
differences between the manager's amendment in the bill as it was
reported by the Committee on the Judiciary.
The purpose of H.R. 2460 is to clarify the provisions of section 1029
of Title 18 relating to equipment that could be used to clone wireless
telephones. H.R. 2460 amends that section to make it clear that the
mere possession of this equipment will be illegal in most instances.
The bill as reported by the committee prohibited the possession of
equipment which had been configured for altering or modifying
telecommunications instruments. Upon further reflection and after
receiving input from the computer and telecommunications trade
associations, the decision was made to further refine this language in
order to make it more clear what types of devices would be prescribed.
The manager's amendment will modify the bill to refer to hardware or
software which has been, quote, configured to insert or modify
telecommunication identifying information associated with or contained
in a telecommunications instrument, unquote.
The bill defines the term ``telecommunication'' identifying
information to mean the electronic serial number or any other number or
signal that identifies a specific telecommunications instrument and
account relating to its specific telecommunication or the actual
communication itself. The effect of this amendment is to make it clear
that only devices which can insert or modify telecommunication
identifying information contained in or otherwise associated with a
telecommunications instrument are made illegal by the bill.
Mr. Chairman, H.R. 2460 as reported by the full committee amended the
penalty provisions of section 1029 to make them more clear and to
correct an unintended redundancy in that section. The manager's
amendment adds an asset forfeiture provision to the bill for all
violations of section 1029. This provision requires forfeiture to the
government of any personal property used or intended to be used to
commit an offense. I note that this provision does not require the
forfeiture of real property. Further, the property subject to
forfeiture is only that personal property which the offender used or
intended to use to commit the offense in question.
Additionally, the bill as reported by the subcommittee contains an
exception to the prohibition on possessing cellular telephone cloning
equipment for officers, employees, agents and persons under contract
with telecommunications carriers so long as their use of this equipment
is for the purposes of protecting the property or legal rights of the
carrier.
The manager's amendment eliminates the requirement that third
persons, quote, ``be under contract with,'' unquote, a facilities-based
carrier and requires merely the person be engaged in business with a
facilities-based carrier. The purpose of this phrase is to include
within the exception third parties which have a business relationship
with the carrier, but where that relationship may not be evidenced by
written contract.
In most cases, these parties will be persons and companies with
technical expertise hired by carriers to assist them in protecting
their property and legal rights. The phrase should not be interpreted
to include within its meaning subscribers to the services of the
telecommunications carrier.
The manager's amendment also adds a further modification to this
exception to make it clear that telecommunication carriers cannot use
these devices to obtain telecommunication services provided by other
carriers without the other carrier's authorization.
Finally, the manager's amendment to the bill also adds a new
provision creating an affirmative defense to a prosecution under new
section 1029(a)(9) in instances where the charge involved was the use,
custody or control or possession of the equipment described in the
bill. The affirmative defense is available if the defendant can prove
that his or her use, custody or control or possession of this equipment
was for the purpose of research or development in connection with a
lawful purpose. The defendant bears the burden of proving the facts
relating to his or her conduct by a preponderance of the evidence, and
I point out that the affirmative defense is not available as a defense
to a charge of production or trafficking in this type of hardware or
software.
Mr. Chairman, I believe the amendments made in the manager's
amendment strengthen the bill, are entirely consistent with the intent
of the legislation introduced by the gentleman

[[Page H642]]

from Texas (Mr. Sam Johnson) and I want to again thank him for his
leadership on this issue. I also want to thank the gentleman from
Massachusetts (Mr. Frank) and the gentlewoman from California (Ms.
Lofgren) for their helpful suggestions as well as those who have also
been reporting information to us on this bill.

Explanatory Statement and Section-by-Section Analysis of H.R. 2460 as
Amended by the Manager's Amendment Submitted by Rep. Sam Johnson, Rep.
Bill McCollum, and Rep. Charles Schumer

purpose and summary

H.R. 2460 amends section 1029 of Title 18 of the United
States Code, relating to fraud and related activity in
connection with access devices. The bill amends subsection
(a)(8) of section 1029 by deleting the ``intent to defraud''
requirement which exists under current law in order to prove
a violation of that section. This section relates to persons
who knowingly use, produce, traffic in, have custody or
control of, or possess hardware or software which has been
configured for altering or modifying a telecommunications
instrument. As a result of the amendments made by the bill,
in order to prove a violation of section 1029, law
enforcement officials will no longer have to prove that a
defendant possessing such hardware or software did so with
the intent to defraud another person.
The amendment to the statute is being made because law
enforcement officials occasionally have been thwarted in
proving true violations of the statute by the ``intent to
defraud'' requirement. But as the hardware and software in
question can be used only for the purpose of altering or
modifying telecommunications instruments, persons other than
those working in the telecommunications industry have no
legitimate reason to possess the equipment. Therefore,
requiring the government to prove an ``intent to defraud'' in
order to prove a violation of the section for possessing this
equipment is not necessary. By eliminating this requirement
from existing law this bill will make it easier to obtain
convictions against criminals who possess this equipment
before they actually use it for illegal purposes.

background and need for the legislation

Cellular telephone fraud is a significant criminal activity
in the United States. Each year the wireless telephone
industry loses hundreds of millions of dollars in revenue as
the result of calls made from stolen telephones or cloned
telephones. In 1996, the last year for which data is
available, the wireless telephone industry reported that the
aggregate loss to the industry was approximately $710
million. While the industry estimates that the losses for
1997 will be less, largely attributable to anti-fraud
technologies it has developed and employed, the loss to this
industry is still unacceptably high.
As significant as is the loss of revenue to the wireless
telephone industry, cellular telephone fraud poses another,
more sinister, crime problem. A significant amount of the
cellular telephone fraud which occurs in this country is
connected with other types of crime. In most cases, criminals
used cloned phones in an effort to evade detection for the
other crimes they are committing. This phenomenon is most
prevalent in drug crimes, where dealers need to be in
constant contact with their sources of supply and
confederates on the street. These criminals often use several
cloned phones in a day, or switch from one cloned phone to
another each day, in order to evade detection. Most
significantly, this technique thwarts law enforcement's
efforts to use wiretaps in order to intercept the criminals'
conversations in which they plan their illegal activity.
In 1994, Congress passed the Communications Assistance for
Law Enforcement Act (Public Law 193-414) which, in part,
amended 18 U.S.C. Sec. 1029, which concerns fraud and related
activity in connection with access devices. That act added a
new provision to section 1029 to make it a crime for persons
to knowingly, and with intent to defraud, use, produce,
traffic in, or have custody or control of, or possess a
scanning receiver or hardware or software used for altering
or modifying telecommunications instruments to obtain
unauthorized access to telecommunications services.
Law enforcement officials have testified before the
Subcommittee on Crime that it is often hard to prove the
intent to defraud aspect of this section with respect to the
possession of hardware or software used for altering or
modifying telecommunications instruments to obtain
unauthorized access to telecommunications services. In the
most common case, law enforcement officials will arrest
criminals for other crimes and find telephone cloning
equipment in the possession of the criminals. Without finding
specific evidence that the criminals intended to use this
equipment to clone cellular telephones, law enforcement
officials often have been thwarted in an effort to prove a
violation of this statute. But because there is no legitimate
reason why any person not working for wireless telephone
industry carriers would possess this equipment, there is no
question that these criminals intended to use that equipment
to clone cellular telephones. Law enforcement officials have
informed the Subcommittee that deleting the ``intent to
defraud'' requirement from section 1029(a)(8) with respect to
this equipment would enable the government to punish a person
who merely possesses this equipment, as well as those who
produce, traffic in, or have custody or control over it.
While we believe that, generally speaking, Congress should
be hesitant to criminalize the mere possession of technology
without requiring proof of an intent to use it for an
improper purpose, the testimony before the Subcommittee on
Crime, both by law enforcement agencies and representatives
of the wireless telephone industry, confirms that the only
use for this type of equipment, other than by persons
employed in the wireless telephone industry and law
enforcement, is to clone cellular telephones. Although
wireless telecommunications companies use this equipment to
test the operation of legitimate cellular telephones, to test
the anti-fraud technologies their companies employ to thwart
the use of cloned telephones, and in other ways to protect
their property and legal rights, the equipment has no other
legitimate purpose. Thus, there is no legitimate reason for
any other person to possess this equipment. In short, the
requirement in existing law to prove an intent to use this
equipment for an illegal purpose is unnecessary.
The bill H.R. 2460, amends existing law by deleting the
intent to defraud requirement currently found in section
1029(a)(8). The bill strikes current subsection (a)(8) of
section 1029 and replaces it with two separate subsections.
New paragraph (8) restates the language presently found in
section 1029(a)(8)(A). New paragraph (9) restates the
introductory phrase of existing paragraph (8), but omits the
``intent to defraud'' requirement and essentially restates
the text of existing subparagraph (B) of current paragraph
(8).
The bill also clarifies the penalties which may be imposed
for violations of section 1029. Under existing law,
violations of subsections (a) (5), (6), (7), or (8) are
subject to a maximum penalty of 10 years under section
1029(c)(1). However, these same violations are also subject
to a maximum penalty of 15 years under subsection (c)(2) of
that same section. This unintentional duplication of penalty
provisions for these crimes should be corrected. The bill
corrects this problem by restating the punishment section of
section 1029 to more clearly state the maximum punishment for
violations of each paragraph of section 1029(a).
In order to ensure that telecommunications companies may
continue to use these devices, the bill provides that it is
not a violation of new subsection (a)(9) for an officer,
employee, or agent of, or a person doing business with, a
facilities-based carrier to use, produce, have custody or
control of, or possess hardware or software as described in
that subsection if they are doing so for the purpose of
protecting the property of or legal rights of that carrier.
Section 1029 presently contains an exception to that
section's prohibition for any lawful investigative,
protective, or intelligence activities of law enforcement
agencies of the United States, a State, or a political
subdivision of a State, or of an intelligence agency of the
United States. The bill also defines ``facilities-based
carrier'' in order to make it clear that the exception to new
subsection (a)(9) is only available to officers, employees,
or agents of, or persons doing business with, companies that
actually own communications transmission facilities, and
persons under contract with those companies, because only
those persons have a legitimate reason to use this property
to test the operation of and perform maintenance on those
facilities, or otherwise to protect the property or legal
rights of the carrier.
The bill also amends the definition of scanning receiver
presently found in subsection (e)(8) of section 1029. Under
that definition, a scanning receiver is a device or apparatus
``that can be used to intercept a wire or electronic
communication in violation of Chapter 119'' of Title 18. the
bill will add to that definition to ensure that the term
``scanning receiver'' will be understood to also include
devices which intercept electronic serial numbers, mobile
identification numbers, or other identifiers of
telecommunications service, equipment, or instruments.
Finally, the bill provides direction to the United States
Sentencing Commission to review and amend, if appropriate,
its guidelines and policy statements so as to provide an
appropriate penalty for offenses involving cloning of
wireless telephones. The bill states eight factors which the
Commission is to consider in reviewing existing guidelines
and policy statements.

section-by-section analysis

Section 1. Short title. Section 1 of the bill states the
short title of the bill as the ``Wireless Telephone
Protection Act.''
Section 2. Fraud and Related Activity in Connection with
Counterfeit Access Devices. Section 2 of the bill sets forth
the amendments made by the bill to section 1029 of Title 18
of the United States Code.
Section 2(a) of the bill deletes existing paragraph (8)
from section 1029(a) and replaces it with two new paragraphs.
New paragraph (8) restates in its entirety the text of old
paragraph (8)(A). The text of new paragraph (9) is
essentially the text of existing paragraph (8)(B), except
that the existing requirement that the government show an
``intent to defraud'' in order to prove a violation has been
deleted. Therefore, as section 1029 will be amended, in order
to prove a violation of new subsection (a)(9), the government
need only prove that the defendant knowingly used, produced,
trafficked in, had custody or control of, or possessed
hardware or

[[Page H643]]

software with the knowledge that it had been configured to
insert or modify telecommunication identifying information
associated with or contained in a telecommunications
instrument so that the instrument could be used to obtain
telecommunications service without authorization.
As amended, new subsection (a)(9) does not make it a crime
to simply possess a wireless telephone or other access device
that has been manufactured or modified to obtain unauthorized
use of telecommunications services. Under other subsections
of section 1029, however, it will continue to be illegal to
use, produce, traffic in, have custody or control of, or
possess such a device if the act was done with the intent to
defraud another person. This is current law, and it remains
unchanged by the bill.
The statute, as amended, also does not prohibit persons
from simply possessing equipment that only intercepts
electronic serial numbers or wireless telephone numbers
(defined as ``scanning receivers'' under section 1029, as
amended by the bill). For example, companies which produce
technology to sell to carriers or state and local governments
that ascertains the location of wireless telephones as part
of enhanced 911 services do not violate section 1029 by their
actions. Under new subsection (a)(8), however, it will
continue to be illegal to use, produce, traffic in, have
custody or control of, or possess a scanning receiver if such
act was done with the intent to defraud another person. This
also is current law, and it remains unchanged by the bill.
While not specifically defined in the bill, the term
``telecommunications instrument'' as used in new subsection
(a)(9) should be construed to mean the type of device which
can be used by individuals to transmit or receive wireless
telephone calls. The term should be construed to include
within its definition the microchip or card which identifies
the device or communications transmitted through the device.
Section 2(b) of the bill amends all of existing subsection
(c) of section 1029. Due to a previous amendment to this
subsection, an inconsistency exists in current law with
respect to the maximum punishment which may be imposed for
violations of current paragraphs (a)(5), (6), (7), or (8).
Currently, the maximum punishment for violations of these
paragraphs is 10 years under subsection (c)(1) but 15 years
under subsection (c)(2). Clearly, it is inappropriate for
there to be different maximum punishments which may be
imposed for violations of these paragraphs. Section 2(b) of
the bill eliminates this inconsistency by clearly stating the
maximum punishments which may be imposed for all violations
of section 1029.
Section 2(b) of the bill also amends existing subsection
(b)(1) of section 1029 to state more clearly the maximum
punishment which may be imposed for attempts to commit the
crimes described in section 1029. As amended, subsection
(b)(1) will provide that convictions for attempts under
section 1029 are to be subject to the same penalties as those
proscribed for the offense attempted.
Section 2(b) of the bill further amends existing subsection
(b)(1) of section 1029 to add a criminal asset forfeiture
provision for violations of section 1029(a). In the event of
a conviction for a violation of this subsection, the
defendant will be required to forfeit to the United States
any personal property used or which was intended to be used
to commit the offense. This section of the bill also provides
that the forfeiture procedure to be used is that contained in
section 413 of the Controlled Substances Act (except for
subsection (d) of that section).
Section 2(c) of the bill amends the definition of
``scanning receiver'' currently found in section 1029(e)(8).
The bill adds to the definition of scanning receiver
additional language to ensure that the defined term is
understood to include a device or apparatus that can be used
to intercept an electronic serial number, mobile
identification number, or other identifier of any
telecommunications service, equipment, or instrument.
Section 2(d) of the bill creates an exception to the crime
described in new subsection (a)(9) for persons who are
employed by or are engaged in business with certain
telecommunications carriers. The new exception provides that
it is not a violation of new subsection (a)(9) for an
officer, employer, or agent of a facilities-based carrier, or
a person engaged in business with a facilities-based carrier,
to engage in conduct (other than trafficking) otherwise
prohibited by that subsection in limited situations.
Therefore, the behavior permitted by this subsection is
the use, production, custody or control of, or possession
of the hardware or software described in subsection
(a)(9). The exception is only available to those persons
described if their actions were taken for the purpose of
protecting the property or legal rights of the facilities-
based carrier.
The purpose of the phrase ``person engaged in business with
a facilities-based carrier'' is to include within the
exception third parties which have a business relationship
with the carrier but where that relationship may not be
evidenced by a written contract. In most cases, these parties
will be persons and companies with technical expertise hired
by carriers to assist them in protecting their property and
legal rights. The phrase should not be interpreted to include
within its meaning parties whose business relationship with
the carrier is only by virtue of having subscribed to the
services of the telecommunications carrier.
The phrase ``for the purpose of protecting the property or
legal rights'' of the carrier should be narrowly construed.
Only such actions which might be deemed to be part of the
ordinary course of business of a telecommunications carrier,
such as actions involving maintenance on or modifications to
its telecommunications system, or which are designed to test
the operation of the system or the system's ability to deter
unauthorized usage (including the reverse engineering of
hardware or software configured as described in new
subsection (a)(9)), should be deemed to fall within this
exception. Acts taken with the intent to defraud another,
even if taken by officers, employees, or agents of a
facilities-based carrier, or by persons under contract with a
facilities-based carrier, would still violate the statute.
We take particular note of the fact that under certain
under some circumstances a facilities-based carrier may wish
to use this type of equipment to intercept signals carried on
another telecommunications carrier's system for the purpose
of testing whether its customers may be able to utilize the
other carrier's system when those customers initiate or
receive calls while inside the other carrier's geographic
area of operation. It is our understanding that these types
of interceptions have always occurred with the express
consent of the two carriers involved. We believe that this is
the appropriate practice. Therefore, the bill has been
amended to include an ``exception to the exception.'' The
excepted conduct is not excepted (i.e., the conduct should be
deemed to violate the statute) if the conduct was undertaken
for the purpose of obtaining telecommunications service
provided by another facilities-based carrier without the
authorization of that carrier. Thus, the exception created by
subsection (d) of the bill only applies to situations where
the other carrier has consented to the use of this equipment
to obtain the service provided on its system.
Subsection (d) of the bill also creates an affirmative
defense to the crime described in new subsection (a)(9) for
violations other than those consisting of producing or
trafficking. The section provides that it is a defense to a
prosecution for such a violation if the conduct charged was
engaged in for research or development in connection with a
lawful purpose. The defendant bears the burden of proving the
facts supporting this defense by a preponderance of the
evidence. The defendant must prove that the purpose of its
acts was otherwise lawful and that its conduct was limited to
research and development activities. Acts which go beyond
research and development, even if connected to a lawful
purpose, fall outside the scope of the affirmative defense.
The defense is only available to defend against the charges
of use, custody or control of, or possessing the hardware or
software described in subsection (a)(9). In the event that a
defendant is charged with one of these violations together
with a charge for which the defense is not available (e.g.,
the defendant is charged with both use and trafficking) the
defense may still be used by the defendant but only as
against the charge permitted by the statute (e.g., use).
Section (d) of the bill also adds new paragraph (9) to
subsection (e) of section 1029 in order to define the term
``telecommunications service'' and provides that the term is
to have the meaning given that term in section 3 of title 1
of the Communications Act of 1934 (47 U.S.C. Section 153).
Section (d) of the bill also adds new paragraph (10)
section 1029(e) in order to define the term ``facilities-
based carrier'' as it is used in the exception to new
subsection (a)(9). That term is defined to mean an entity
that owns communications transmissions facilities, is
responsible for the operation and maintenance of those
facilities, and holds an operating license issued by the
Federal Communications Commission. Thus, it does not include
so-called ``resellers'' of wireless telephone air time,
companies which buy blocks of air time and resell it to
retail customers. The definition also does not include
companies which hold nominal title to telecommunications
equipment but which have no responsibility for their
operations or for performing maintenance on them. Finally,
the definition does not include persons or companies which
may own and operate tangible telecommunications equipment but
which do not hold the appropriate license for that purpose
issued by the Federal Communications Commission.
Finally, the bill also defines ``telecommunication
identifying information,'' one of the key terms in new
subsection (a)(9). That term is defined to mean an electronic
serial number or any other number or signal that identifies a
specific telecommunications instrument. The intent of this
term is to identify the unique components or features of a
telecommunications instrument which can be inserted or
modified by the devices described in new subsection (a)(9)
such that the instrument can be used to obtain
telecommunications service without authorization.
Section 2(e) of the bill directs the United States
Sentencing Commission to review and amend its sentencing
guidelines and policy statements, if appropriate, to provide
an appropriated penalty for offenses involving the cloning of
wireless telephones. This section of the bill states a number
of factors which the Sentencing Commission is directed to
consider during its review. We are concerned that violations
of section 1029 are not punished as severely as other,
similar, fraud crimes are punished under the Sentencing
Commission's sentencing guidelines and, in any event, are not
punished as severely as

[[Page H644]]

they should be in light of the magnitude of loss resulting
from this crime and the fact that this crime is often used to
facilitate more serious crimes. This section of the bill
directs the Sentencing Commission to consider these and other
factors in making to Congress as part of its annual reporting
process whatever recommendations it deems appropriate with
respect to the guidelines for imposing punishment for
violations of section 1029.
Mr. McCOLLUM. Mr. Chairman, I yield back the balance of my time on
this amendment.
Mr. WEXLER. Mr. Chairman, I rise in support of the McCollum
amendment.
The gentleman from Florida (Mr. McCollum) has described what this
amendment does. It simply makes clear that FCC license carriers can use
the type of equipment described by the bill for their legitimate
business purposes. On behalf of the gentleman from Michigan (Mr.
Conyers) I want to thank Chairman McCollum and his counsel, Glen
Schmitt, for their willingness to work through this issue. I also want
to make it clear because there have been some questions on this point
that the bill before us does not affect scanners. Scanners do have
legitimate uses and will remain available.
Mr. SAM JOHNSON of Texas. Mr. Chairman, I move to strike the last
word.
Mr. Chairman, in closing I just want to say that this bill will make
cellular telephones across America more secure. It is high time in our
society that the victim rather than the criminal is protected. No
longer will the hard-core criminal be able to steal cellular phone
numbers and rack up huge phone bills which cost all of us.
Mr. Chairman, this bill is about freedom and security, the right of
each American to freely and safely use their phones without the fear of
their number being stolen. This bill is going to help our law
enforcement agencies and ensure a safer America for all.
The CHAIRMAN. The question is on the amendment in the nature of a
substitute offered by the gentleman from Florida (Mr. McCollum).
The amendment in the nature of a substitute was agreed to.
The CHAIRMAN. Are there other amendments?
If not, the question on the committee amendment in the nature of a
substitute, as amended.
The committee amendment in the nature of a substitute, as amended,
was agreed to.
The CHAIRMAN. Under the rule, the Committee rises.
Accordingly, the Committee rose; and the Speaker pro tempore (Mr.
Gilchrest) having assumed the chair, Mr. Collins, Chairman of the
Committee of the Whole House on the State of the Union, reported that
that Committee, having had under consideration the bill (H.R. 2460) to
amend title 18, United States Code, with respect to scanning receivers
and similar devices, pursuant to House Resolution 368, he reported the
bill back to the House with an amendment adopted by the Committee of
the Whole.
The SPEAKER pro tempore. Under the rule, the previous question is
ordered.
Is a separate vote demanded on the amendment to the committee
amendment in the nature of a substitute adopted by the Committee of the
Whole? If not, the question is on the committee amendment in the nature
of a substitute.
The committee amendment in the nature of a substitute was agreed to.
The SPEAKER pro tempore. The question is on the engrossment and third
reading of the bill.
The bill was ordered to be engrossed and read a third time, and was
read the third time.
The SPEAKER pro tempore. The question is on the passage of the bill.
The question was taken; and the Speaker pro tempore announced that
the ayes appeared to have it.
Mr. McCOLLUM. Mr. Speaker, on that I demand the yeas and nays.
The yeas and nays were ordered.
The vote was taken by electronic device, and there were--yeas 414,
nays 1, not voting 15, as follows:

[Roll No. 25]

YEAS--414

Abercrombie
Ackerman
Aderholt
Allen
Andrews
Archer
Armey
Bachus
Baesler
Baker
Baldacci
Ballenger
Barcia
Barr
Barrett (NE)
Barrett (WI)
Bartlett
Barton
Bass
Bateman
Becerra
Bentsen
Bereuter
Berman
Berry
Bilbray
Bilirakis
Bishop
Blagojevich
Bliley
Blumenauer
Blunt
Boehlert
Boehner
Bonilla
Bonior
Borski
Boswell
Boucher
Boyd
Brady
Brown (CA)
Brown (OH)
Bryant
Bunning
Burr
Burton
Buyer
Callahan
Calvert
Camp
Canady
Cannon
Cardin
Carson
Castle
Chabot
Chambliss
Chenoweth
Christensen
Clay
Clayton
Clement
Clyburn
Coble
Coburn
Collins
Combest
Condit
Conyers
Cook
Cooksey
Costello
Cox
Coyne
Cramer
Crane
Crapo
Cubin
Cummings
Cunningham
Danner
Davis (FL)
Davis (IL)
Davis (VA)
Deal
DeFazio
DeGette
Delahunt
DeLauro
DeLay
Deutsch
Diaz-Balart
Dickey
Dicks
Dingell
Dixon
Doggett
Dooley
Doolittle
Doyle
Dreier
Duncan
Dunn
Edwards
Ehlers
Ehrlich
Emerson
Engel
English
Ensign
Eshoo
Etheridge
Evans
Everett
Ewing
Farr
Fawell
Fazio
Filner
Foley
Forbes
Fossella
Fowler
Fox
Frank (MA)
Franks (NJ)
Frelinghuysen
Frost
Furse
Gallegly
Ganske
Gejdenson
Gekas
Gephardt
Gibbons
Gilchrest
Gillmor
Gilman
Goode
Goodlatte
Goodling
Gordon
Goss
Graham
Granger
Green
Greenwood
Gutierrez
Gutknecht
Hall (OH)
Hall (TX)
Hamilton
Hansen
Harman
Hastert
Hastings (FL)
Hayworth
Hefley
Hefner
Herger
Hill
Hilleary
Hilliard
Hinchey
Hinojosa
Hobson
Hoekstra
Holden
Hooley
Horn
Hostettler
Houghton
Hoyer
Hulshof
Hunter
Hutchinson
Hyde
Inglis
Istook
Jackson (IL)
Jackson-Lee (TX)
Jefferson
Jenkins
John
Johnson (CT)
Johnson (WI)
Johnson, E. B.
Johnson, Sam
Jones
Kanjorski
Kaptur
Kasich
Kelly
Kennedy (MA)
Kennedy (RI)
Kennelly
Kildee
Kilpatrick
Kim
Kind (WI)
King (NY)
Kingston
Kleczka
Klug
Knollenberg
Kolbe
Kucinich
LaFalce
LaHood
Lampson
Lantos
Largent
Latham
LaTourette
Lazio
Leach
Levin
Lewis (CA)
Lewis (GA)
Lewis (KY)
Linder
Lipinski
Livingston
LoBiondo
Lofgren
Lowey
Lucas
Maloney (CT)
Maloney (NY)
Manton
Manzullo
Markey
Martinez
Mascara
Matsui
McCarthy (MO)
McCarthy (NY)
McCollum
McCrery
McDade
McDermott
McGovern
McHale
McHugh
McInnis
McIntosh
McIntyre
McKeon
McKinney
McNulty
Meehan
Meek (FL)
Meeks (NY)
Menendez
Metcalf
Mica
Millender-McDonald
Miller (FL)
Minge
Mink
Moakley
Mollohan
Moran (KS)
Moran (VA)
Morella
Murtha
Myrick
Nadler
Neal
Nethercutt
Neumann
Ney
Norwood
Nussle
Oberstar
Obey
Olver
Ortiz
Owens
Oxley
Packard
Pallone
Pappas
Parker
Pascrell
Pastor
Paxon
Payne
Pease
Peterson (MN)
Peterson (PA)
Petri
Pickering
Pickett
Pitts
Pombo
Pomeroy
Porter
Portman
Price (NC)
Pryce (OH)
Quinn
Radanovich
Rahall
Ramstad
Rangel
Redmond
Regula
Reyes
Riggs
Riley
Rivers
Rodriguez
Roemer
Rogan
Rogers
Rohrabacher
Ros-Lehtinen
Rothman
Roukema
Roybal-Allard
Royce
Rush
Ryun
Sabo
Salmon
Sanchez
Sandlin
Sanford
Sawyer
Saxton
Schaefer, Dan
Schaffer, Bob
Schumer
Scott
Sensenbrenner
Serrano
Sessions
Shadegg
Shaw
Shays
Sherman
Shimkus
Shuster
Sisisky
Skaggs
Skeen
Skelton
Slaughter
Smith (MI)
Smith (NJ)
Smith (OR)
Smith (TX)
Smith, Adam
Smith, Linda
Snowbarger
Snyder
Solomon
Souder
Spence
Spratt
Stabenow
Stark
Stearns
Stenholm
Stokes
Strickland
Stump
Stupak
Sununu
Talent
Tanner
Tauscher
Tauzin
Taylor (MS)
Taylor (NC)
Thomas
Thompson
Thornberry
Thune
Thurman
Tiahrt
Tierney
Torres
Towns
Traficant
Turner
Upton
Velazquez
Vento
Visclosky
Walsh
Wamp
Waters
Watkins
Watt (NC)
Watts (OK)
Waxman
Weldon (FL)
Weldon (PA)
Weller
Wexler
Weygand
White
Whitfield
Wicker
Wise
Wolf
Woolsey
Wynn
Yates
Young (AK)
Young (FL)

NAYS--1

Paul

NOT VOTING--15

Brown (FL)
Campbell
Fattah
Ford
Gonzalez
Hastings (WA)
Klink
Luther
Miller (CA)
Northup
Pelosi
Poshard
Sanders
Scarborough
Schiff

{time} 1132

So the bill was passed.

[[Page H645]]

The result of the vote was announced as above recorded.
A motion to reconsider was laid on the table.

____________________