[Congressional Record Volume 145, Number 30 (Thursday, February 25, 1999)]
[House]
[Pages H800-H806]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
WIRELESS PRIVACY ENHANCEMENT ACT OF 1999
Mr. LINDER. Mr. Speaker, by direction of the Committee on Rules, I
call up House Resolution 77 and ask for its immediate consideration.
The Clerk read the resolution, as follows:
H. Res. 77
Resolved, That at any time after the adoption of this
resolution the Speaker may, pursuant to clause 2(b) of rule
XVIII, declare the House resolved into the Committee of the
Whole House on the state of the Union for consideration of
the bill (H.R. 514) to amend the Communications Act of 1934
to strengthen and clarify prohibitions on electronic
eavesdropping, and for other purposes. The first reading of
the bill shall be dispensed with. Points of order against
consideration of the bill for failure to comply with clause
4(a) of rule XIII 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 Commerce. After general debate the
bill shall be considered for amendment under the five-minute
rule. Each section of the bill 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 and in
clause 8 of rule XVIII. 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 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 15 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. 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.
The SPEAKER pro tempore (Mr. Upton). The gentleman from Georgia (Mr.
Linder) is recognized for 1 hour.
Mr. LINDER. Mr. Speaker, for purposes of debate only, I yield the
customary 30 minutes to the gentlewoman from New York (Ms. Slaughter),
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 77 is an open rule providing for
consideration of H.R. 514, the Wireless Privacy Enhancement Act, a bill
that will improve wireless communication privacy and make it more
difficult for scanners to be altered for unlawful purposes. H. Res. 77
is a wide-open rule providing 1 hour of general debate equally divided
and controlled by the chairman and ranking minority member of the
Committee on Commerce.
The rule waives points of order against consideration of the bill for
failure to comply with clause 4(a) of Rule 13 which requires a 3-day
layover for committee reports, and the rule provides that each section
of the bill shall be considered as read.
H. Res. 77 further allows the Chairman of the Committee of the Whole
to accord priority in recognition to those Members who have preprinted
their amendments in the Congressional Record prior to their
consideration. The rule also allows the Chairman of the Committee of
the Whole to postpone recorded votes and to reduce to 5 minutes the
voting time on any postponed question provided voting time on the first
in any series of questions is not less than 15 minutes. Finally, the
rule provides one motion to recommit, with or without instructions, as
is the right of the minority.
Mr. Speaker, when an American citizen picks up his telephone, we want
to believe that the right to privacy is protecting us. Unfortunately,
the rapid advance of technology permits the interception of phone calls
rather easily, and relatively simple modifications to devices can
provide anyone with an electronic stocking device. The bill before us
today is designed to ensure that the current penalties for intercepting
and divulging communications are strengthened.
It is important to note that many consumers are not even aware that
current penalties even exist, and current law unfortunately encourages
a relaxed attitude among those who casually intercept communications.
As a result, this bill will improve the enforcement of privacy laws by
increasing penalties
[[Page H801]]
for violators and encouraging the use of warning labels by the
manufacturers of scanners and parts.
The bill also addresses the concern that current prohibitions on the
manufacture of scanners capable of receiving cellular frequencies do
not extend to other wireless technology such as personal communications
and paging services. In addition, current statutes require both
interception and divulgence of communications to trigger a violation,
which again engenders a relaxed attitude among those that intercept
communications. To fix the weakness in the current statute, H.R. 514
will protect privacy and provide effective enforcement mechanisms.
A point of concern has been made about police, fire and other
emergency service communications, and I do believe that the assistance
of the emergency service personnel should not be interrupted. It is my
understanding that language in the committee report will explain that
nothing in the bill is intended to interfere with the lawful reception
of these emergency communications.
Finally, I want to congratulate the gentlewoman from New Mexico (Mrs.
Wilson) for her hard work in drafting this legislation. She has played
an instrumental role in guiding this bill through the committee process
and deserves special recognition for leadership on this issue. I
certainly expect that her management of this bill on the House floor
today will ensure its passage with the support of an overwhelming
majority of Members.
Mr. Speaker, H.R. 514 will directly improve wireless communications
privacy, and this legislation was approved by the Committee on Commerce
without amendment by voice vote. We will have ample time to discuss the
merits of the bill during the general debate later today.
This is a fair rule, and I urge my colleagues to support it so that
we may proceed with general debate and consideration of this bipartisan
bill.
Mr. Speaker, I reserve the balance of my time.
Ms. SLAUGHTER. Mr. Speaker, I yield myself such time as I may
consume.
(Ms. SLAUGHTER asked and was given permission to revise and extend
her remarks.)
Ms. SLAUGHTER. Mr. Speaker, today will be the last day of service of
my aide on the Committee on Rules Thomas Bantle who came with me from
our hometown in 1986, and during those years Tom has served with great
distinction in my office and for the people of the 28th congressional
district. But also during the time that I was the Chair of the
Organization, Study and Review Committee, he had a great impact on the
rules of the House, and I want to thank him for the great service that
he is given me with integrity and faithfulness and wish him the very
best in his new post.
Mr. Speaker, I want to thank my colleague, the gentleman from Georgia
(Mr. Linder), for yielding me the customary 30 minutes, and I rise in
support of this open rule providing for the consideration of H.R. 514,
the Wireless Privacy Enhancement Act.
Similar legislation passed the House in the 105th Congress by a vote
of 414 to 1. While the Senate took no action on the bill, the need for
this kind of privacy protection requires us to move ahead this year in
the hopes that the legislation can soon become law.
Mr. Speaker, current legislation provides protection for some older
technology wireless communications, but this bill extends that
protection to newer technology including digital wireless
communication. In addition, the bill requires the Federal
Communications Commission to step up its enforcement actions against
the violations of the newly-expanded privacy laws. H.R. 514 also
prohibits the manufacture or modification of off-the-shelf radio
scanners that could intercept digital cellular telephone
communications, and this updates federal law to deal with the changes
in technology since the 1986 Electronic Communications Protection Act
became law.
Mr. Speaker, passage of this legislation might stop some of the
predatory practices that threaten the privacy of millions of cellular
conversations placed each and every day. I urge support of this open
rule, and I support the underlying bill.
Mr. Speaker, I have no further requests for speakers, and I yield
back the balance of my time.
Mr. LINDER. Mr. Speaker, I yield back the balance of my time, and 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 77 and rule
XVIII, the Chair declares the House in the Committee of the Whole House
on the State of the Union for the consideration of the bill, H.R. 514.
{time} 1057
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. 514) to amend the Communications Act of 1934 to strengthen and
clarify prohibitions on electronic eavesdropping, and for other
purposes, with Mr. LaHood 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 Louisiana (Mr. Tauzin) and the
gentleman from Massachusetts (Mr. Markey) each will control 30 minutes.
The Chair recognizes the gentleman from Louisiana (Mr. Tauzin).
Mr. TAUZIN. Mr. Chairman, I yield myself such time as I may consume.
Mr. Chairman, today we are here to protect the privacy of the near 68
million Americans who use wireless telecommunications services and the
countless millions who will use those services in the future.
Privacy is important to all of us.
Mr. Chairman, I want to thank the gentlewoman from New Mexico (Mrs.
Wilson) for introducing H.R. 514 and for shepherding this important
bill through the Subcommittee on Telecommunications of the Committee on
Commerce. I want to thank my friend, the gentleman from Massachusetts
(Mr. Markey), and his staff, again for the excellent cooperation and
again the bipartisan spirit that our committee so often shows in these
telecommunication issues and other matters before our committee.
We begin our review of this issue in the 105th Congress. Two years
ago the Subcommittee on Telecommunications held a hearing on wireless
privacy. What our Members learned at that hearing was astonishing. Off-
the-shelf scanners can be easily modified to turn them into electronic
stalking devices.
{time} 1100
With the clip of a wire, a scanner can pick up a cellular
conversation in a nearby vicinity. In fact, we actually did that. I
demonstrated the soldering of a small wire and within 3 minutes
converted a scanner, a legal scanner, into an illegal listening device;
and my friend, the gentleman from Massachusetts (Mr. Markey), helped
with the demonstration by making a private telephone conversation.
We picked it up in the committee room, with his consent in advance,
and we listened to him as he plotted an overthrow of the committee, a
coup d'etat, and we demonstrated in fact how easy it was to listen in
on somebody's private conversation.
I want everyone to know that we thwarted that coup d'etat, and we
have been good friends ever since.
What our Members indeed learned was that privacy was deeply at risk
in America, and although current law and FCC rules prohibit such
eavesdropping, the technology was readily available to intercept
cellular phone calls.
We also learned at the hearing that some people believed that the
present law did not prohibit them from modifying legal scanners to turn
them into eavesdropping devices. In fact, a whole modification industry
had developed. It was openly advertising in print media and over the
Internet, complete with easy-to-follow instructions on how to listen in
on neighbors.
H.R. 514 was introduced to crack down on those modification scanners
and to prevent a new scanning market from developing for new digital
wireless services. The bill prohibits the modification of legal
scanners for that purpose. It requires the FCC to adopt regulations
that extend current protections, this is very important, to the new
digital service, such as the personal communication services;
protecting the paging and specialized mobile
[[Page H802]]
services, the new digital so-called secure communications, to make sure
they remain secure.
What our Members discovered was a residual belief out there,
harkening to the early days of radio, that because the airwaves are a
public good, all communications traversing over them are public as
well. We discovered an almost right-to-listen mentality, and that
mentality is directly inconsistent with cellular users' expectations
and, of course, would hamper the growth of wireless communication
services that promise so much good for our personal and our
professional lives.
Our Members were disturbed by such a callousness for privacy of
communications, an intent on establishing the policy that, regardless
of the media, private communications deserved to remain private. H.R.
514, therefore, provides that interception alone of wireless
communications is illegal. Current provisions in the Communications Act
provide that an interception without divulgence is legal. In other
words, eavesdropping alone is not illegal under the Communications Act
today.
Divulgence alone is also prohibited. Existing Communications Act
provisions prohibit a person from divulging an intercepted
communications, wireless communication. While we abhor electronic
stalking and the violation of privacy rights divulgence brings, we did
not intend to punish unintentional behavior. We therefore prohibit in
H.R. 514 only intentional interception.
The gentlewoman from New Mexico (Mrs. Wilson), who has done such a
great job on this bill, will offer an amendment today that will clarify
that our intent is only to punish divulgence that is in fact
intentional. The unintentional divulgence will not be punished. I thank
her in advance for her efforts to safeguard the consumers' privacy,
while ensuring that first amendment freedoms of the press and of free
speech are not in fact hampered by our bill.
When we first began our examination 2 years ago, we were dismayed
that the FCC, the most likely enforcer of violations against scanning
abuses, was deferring to the FBI and the Justice Department for
enforcement. These law enforcement agencies obviously have serious
crimes to investigate, so often eavesdropping and divulgence of private
communications violations was simply not pursued. We were surprised to
hear this, despite the fact that one of our witnesses at our hearings 2
years ago, the FBI official in charge of the TWA crash investigation on
Long Island, told us that FBI agents were unable to use their cellular
phones during that investigation because the press was scanning and
then divulging their intercepted calls when writing articles about the
investigation, in fact hampering their ability to find what happened in
that awful plane crash.
This illegal interception and divulgence of communications over
commercial cellular services was hampering a major FBI investigation.
Because of the current lack of aggressive enforcement, the bill now
requires that the FCC, regardless of what other enforcement agencies
are doing, that they must investigate alleged violations and in fact
take action to prevent them.
H.R. 514 leaves undisturbed legitimate uses of scanners. Let me say
it again for all Members. This bill does not affect the legitimate
scanner, the legal scanner such as those that are used for public
safety channels or listening to NASCAR communications for automobile
races. Legal scanners, not modified to listen to your cellular phone,
are legal today, will remain legal tomorrow. The bill only seeks to
prohibit the interception of communications for services that are
exclusively allocated for commercial service, for which consumers have
the expectation of privacy. We believe we have successfully balanced a
number of competing concerns, and I ask all Members to vote for this
very good bill.
Mr. Chairman, I reserve the balance of my time.
Mr. MARKEY. Mr. Chairman, I yield myself such time as I may consume.
Mr. Chairman, first, I want to commend the chairman, the gentleman
from Louisiana (Mr. Tauzin), for bringing this bill to the floor today
and to thank him and the gentleman from Virginia (Mr. Bliley) for the
way in which the minority have been treated on this excellent
bipartisan legislation.
We have crafted this bill over a couple-of-year period, and it
reflects that very close consultation between majority and minority
that has always characterized the Subcommittee on Telecommunications,
Trade and Consumer Protection. And I want to particularly single out
the gentlewoman from New Mexico (Mrs. Wilson) for her work on this
legislation. She has helped us to fine-tune it in her brief time here
on the committee, and she is the lead sponsor here today, and I want to
thank her for her work on this legislation.
The bill that we have before us today offered by the gentlewoman from
New Mexico (Mrs. Wilson) is essentially the same wireless scanner
legislation that the House of Representatives overwhelmingly approved
last session. No action was taken on that legislation in the Senate,
and so we return early this session, under the leadership of the
subcommittee chairman, the gentleman from Louisiana (Mr. Tauzin), and
the chairman, the gentleman from Virginia (Mr. Bliley) to approve it
again in the hopes that the other body will do likewise.
There is a very important amendment that the gentlewoman from New
Mexico (Mrs. Wilson) has crafted, which I think should be included.
This legislation modifies the wireless scanner prohibitions contained
in the Communications Act and updates them to address digital wireless
technologies. The legislation clarifies our intention that legally
protected conversations should not be readily available to scanner
enthusiasts who buy scanners for entertainment or for other interests,
but they should not be able to eavesdrop on their neighbors. It leaves
available those public frequencies utilized often by police and fire
and emergency service personnel for scanner hobbyists to continue
listening in on.
It ensures that everyday wireless conversations, legally protected
conversations, are not easily picked up and listened to.
The bill on the floor this morning has four main parts.
First, the bill extends current scanner receiver manufacturing
restrictions to prevent the manufacture of scanners that are capable of
intercepting communications in frequencies allocated to new wireless
communications, namely personal communications services and protected
paging and specialized mobile radio services.
Second, the bill prohibits the modification of scanners and requires
the Federal Communications Commission to strengthen its rules to
prevent the modification of scanning receivers. This is very important,
because committee records from this year and last year make clear that
some entities are restoring scanners that comply with the Federal
Communications rules so that these scanners can obtain protected
frequencies.
Third, the bill makes it illegal to intentionally intercept or
divulge the content of radio communications.
Finally, penalties are increased for violations; and the legislation
requires the Commission to move expeditiously on investigations of
alleged violations.
Mr. Chairman, I think it is important that we point out that digital
cellular, the next generation of cellular services, and digital
personal communications services are less susceptible to unauthorized
eavesdropping than analogue cellular that most people in our country
have been using over the last decade. Yet, digital cellular and PCS are
not completely immune from eavesdropping because, in a never-ending
saga of technical one-upmanship, the equipment for intercepting digital
calls and converting digital conversations is becoming more available
and more affordable.
Currently, such digital scanners remain vastly more expensive and
complex than existing off-the-shelf scanners that intercept analogue
communications. However, one of the purposes of the bill is to prevent
a market from developing for less expensive digital scanners by clearly
prohibiting the authorization of such scanners by the Federal
Communications Commission.
In the final analysis, Mr. Chairman, consumers will best be protected
through a combination of the scanner provisions we are poised to
approve today and the implementation of encryption technology so that
consumers can encode their own conversations
[[Page H803]]
and their own private data. For this reason, we must make sure that the
United States encryption policy avails consumers of the opportunity to
utilize the best, most sophisticated technology, so that they can help
to protect themselves, and I urge the wireless industry to help make
these encryption technologies available to consumers in an affordable
way.
Mr. Chairman, this is a good bill, and I want to again commend the
gentleman from Louisiana (Mr. Tauzin) and the gentleman from Virginia
(Mr. Bliley), because the gentleman from Michigan (Mr. Dingell) and I
and the other Members on our side feel that we were very fairly
treated. We feel it is a good piece of legislation. We compliment the
chairman, the gentlewoman from New Mexico (Mrs. Wilson) and all
involved in it.
Mr. Chairman, I reserve the balance of my time.
Mr. TAUZIN. Mr. Chairman, I yield such time as she may consume to the
gentlewoman from New Mexico (Mrs. Wilson), a new, extremely bright new
voice, on our committee and the author of the legislation.
Mrs. WILSON. Mr. Chairman, almost 70 million Americans have cellular
or digital phones or those new PCS phones that have everything on them
from caller IDs to voice messaging and paging all in one little phone
that can fit in someone's pocket.
In America, 1997 was a milestone year. That was the first year in
American history that more cordless and cell phones were sold than hard
wire phones to hang on our walls or set on our telephone tables at
home.
People expect the calls that we make on those little phones in our
pockets to be private, because we are used to it. We are used to it on
the hard line phones in our homes and in our offices, and we have a
right to expect the same thing on the ones that more and more people
are carrying with them, are using in their car, sometimes dangerously,
or in restaurants or outside office buildings or walking down the
street or on the subway. They expect privacy, and we need to give it to
them.
While the gentleman from Massachusetts (Mr. Markey) and the gentleman
from Louisiana (Mr. Tauzin) were here in Washington busy with their
soldering irons and plotting coup d'etats in the Subcommittee on
Telecommunications Trade and Consumer Protection, I was back in New
Mexico in my home State.
I am not really a technology person, but shortly after my baby was
born, I heard voices coming from her room and went in there and found
that the baby monitor was picking up the conversations of my neighbor,
and while that is not exactly on point it proved to me how easy it is
for technology to inadvertently pick up the private conversations of
someone that thought that conversation and had a right to believe that
conversation should be private.
The law in privacy has loopholes, and technology has outstripped our
privacy protection laws. I would note that it was the gentleman from
Massachusetts (Mr. Markey) in 1992 who wrote the original law here that
covers cell phones, but it needs to be expanded today, and that is what
this bill is all about.
We should not have companies in America advertising scanners that can
be easily modified to pick up private conversations. There should not
be a business for that in America, and this bill would eliminate that
kind of business. The bill updates scanner manufacturing bans so that
new frequencies, including digital and PCS phones are covered, in
addition to cell phones. It prohibits the modification of scanners to
intercept calls.
{time} 1115
So there is no more messing around in the hearing room.
Mr. Chairman, it makes it illegal to intentionally intercept calls or
to intentionally divulge the content of private calls, and it increases
the penalties for violators and requires the FCC to investigate
violations, instead of just referring them over to somebody else who is
overburdened as it is.
I think it is also important to make clear what this bill does not
do, because I think it can be confusing, especially for those of us who
are not really used to dealing with some of these telecommunications
widgets. There are a lot of people who listen to the police and fire
departments on the scanners because they are volunteer firefighters or
just because they like to. They like to know what is going on in their
town and where they can help. There are also ham operators that enjoy
their hobby, and they provide a public service, and that is okay.
It is okay now, and it will continue to be okay with this bill. Those
are public service and amateur radio frequencies, and people should be
able to listen to them and to use them. Just to make it perfectly
clear, we have added report language to the bill that makes this intent
very clear to the FCC. There will be no interference with those rights
and public frequencies and the ability to have scanners for public
service and fire and police.
Mr. Chairman, I will also have an amendment that clarifies that those
who unintentionally divulge information that they do not know comes
from an illegally intercepted conversation are not penalized. One
should not be held accountable for something if they had no intention
or no knowledge, and we will clarify that with an amendment in a few
minutes here.
Of course, we also have to be sensitive to the needs of law
enforcement agencies and national security; and the bill also, by
cross-reference to Title 18 in the Criminal Code, makes clear that the
procedures that exist now for fighting terrorism and drug traffickers
and other criminal acts remain as they always have been.
Mr. Chairman, I want to commend the gentleman from Virginia (Chairman
Bliley) and the gentleman from Louisiana (Chairman Tauzin), as well as
the gentleman from Massachusetts (Mr. Markey) and the gentleman from
Michigan (Mr. Dingell) for working on this bill for so long and
tolerating some of the tweaking that we have been doing to it. Their
staffs have been very cooperative, and I think we have a good, solid
piece of legislation that is supported by both sides of the aisle.
Mr. Chairman, I appreciate particularly the prompt action of the
gentleman from Louisiana in bringing this to the floor today. This bill
will give Americans privacy they expect and they deserve, and I thank
him for his leadership.
Mr. TAUZIN. Mr. Chairman, I thank the gentlewoman from New Mexico
(Mrs. Wilson) on behalf of all of us on the committee for the excellent
job on this bill, and I look forward to working with her on many other
high-tech issues as we learn them together.
Mr. Chairman, I yield such time as he may consume to the gentleman
from Richmond, Virginia (Mr. Bliley), who is not only the chairman of
our Committee on Commerce but the chairman of what we consider to be
the most important committee in the House of Representatives.
(Mr. BLILEY asked and was given permission to revise and extend his
remarks.)
Mr. BLILEY. Mr. Chairman, yesterday, the House considered and passed
the first of a couple of wireless bills and, like its brother of
yesterday, the bill before us today both increases the usefulness of
wireless services for our constituents and promotes an important public
interest.
H.R. 514 will increase the privacy of the 70-odd million subscribers
of wireless services in this country. The bill outlaws modifications of
off-the-shelf scanners to intercept personal wireless communications,
not communications over shared frequencies where the parties expect to
be heard, like in NASCAR racing, boating or police or fire channels,
but of private communications enabled by commercial services where
users have an expectation of privacy.
Mr. Chairman, I remember a hearing in the last Congress when the
chairman of the subcommittee and the ranking member put on a
demonstration of just how easy it is to take an off-the-shelf scanner
and modify it. Nobody has the right to listen to private communication
merely because one has the technical expertise to intercept. This bill
will outlaw such interception and force the FCC to deal with electronic
stalking as a serious breach of our privacy rights enforceable under
this new law.
The bill will also prevent the development of a market for next
generation digital scanners, so that from the get-go digital wireless
service will remain private.
Mr. Chairman, I would like to thank the gentlewoman from New Mexico
[[Page H804]]
(Mrs. Wilson) and the gentleman from Louisiana (Chairman Tauzin), as
well as the gentleman from Massachusetts (Mr. Markey), ranking member
of the subcommittee, and the gentleman from Michigan (Mr. Dingell),
ranking member of the full committee.
Mr. TAUZIN. Mr. Chairman, I reserve the balance of my time.
Mr. MARKEY. Mr. Chairman, I yield back the balance of my time.
Mr. TAUZIN. Mr. Chairman, I yield myself such time as I may consume.
Mr. Chairman, I wanted to also single out again the work of the staff
who have always, as I said, toiled long hours to help us bring bills
like this, complex in nature, technical in nature, to the floor.
I want to again acknowledge and thank Andy Levin and Colin Crowell,
and from the majority, Tricia Paoletta, Mike O'Rielly, Cliff Riccio and
Luke Rose for their excellent work on this bill and for our entire
committee and subcommittee.
Again, I say thanks for the work of the gentleman from Virginia
(Chairman Bliley) in helping us to move this legislation to the floor,
as well as to the gentleman from Michigan (Mr. Dingell) and the
gentleman from Massachusetts (Mr. Markey) for their excellent
cooperation.
Mr. Chairman, I yield back the balance of my time.
Ms. JACKSON-LEE of Texas. Mr. Speaker, thank you for giving me this
opportunity to address this important bill, H.R. 514, that will extend
our federal privacy protections to protect the users of wireless
technologies.
Many historians would agree, that it is our country's long tradition
of innovation and ingenuity that made us, and keeps us, a superpower.
However, the rewards of innovation do not always come without a price.
First, there is the cost of developing the innovation. Our government
often participates in that innovation through agencies and programs
like NASA, the Science Foundation (NSF), and the Advanced Technology
Program (ATP).
Second, new technologies often have hidden costs. One example is the
Y2K problem, which manifested itself in part because technology
developers did not believe that their products would still be in use in
the 21st century.
Third and unfortunately, because the law is sometimes unable to
adjust quickly enough to these rapidly-changing technologies, there are
other costs that come about because of fraudulent or criminal activity.
This bill addresses one such problem that has developed because of the
rise in the use of wireless technologies, such as cellular phones.
With the demand for wireless technologies growing at a near-
exponential rate, we have seen the development of technologies that are
capable of intercepting wireless transmissions, and in some instances,
decoding those transmissions. That means that with a simply modified
scanner, an individual with criminal intentions could readily listen
into cellular phone conversations undetectably.
Furthermore, there are some scanners that even have the ability to
decode the digital transmissions that up until now were a strong
selling point for high-end cellular phones. Many of the purchasers of
digital phones, in fact, purchased them in part because they felt that
their conversations and cellular phone profiles are more secure than
with the use of analog technology.
This bill works to better protect those consumers, and in fact, all
consumers of wireless technologies, by making it illegal to
intentionally intercept or disclose any wireless communication. By
criminalizing both behaviors, we will be protecting all consumers from
the fraudulent misuse of their conversations and transmissions.
It is our responsibility as a Congress to preserve the principles put
forth in our Constitution. I feel that this bill is a logical extension
of the Right of Privacy recognized by the Supreme Court in Griswold v.
Connecticut, 381 U.S. 479 (1965), and I support this bill as a result.
I urge all of you to vote in favor of this bill, and to further
protect our citizens from high-tech fraud.
Mr. PAUL. Mr. Speaker, I rise in opposition to H.R. 514, and in
support of the Wilson amendment. The passage of this legislation will,
as does so much of the legislation we pass, move our nation yet another
step close to a national police state by further expanding a federal
crime and empowering more federal police--this time at the Federal
Communications Commission. Despite recent and stern warnings by both
former U.S. attorney general Edwin Meese III and current U.S. Supreme
Court Chief Justice William H. Rehnquist, the Congress seems compelled
to ride the current wave of federally criminalizing every human misdeed
in the name of saving the world from some evil rather than to uphold a
Constitutional oath which prescribes a procedural structure by which
the nation is protected from totalitarianism.
Our federal government is, constitutionally, a government of limited
powers. Article one, Section eight, enumerates the legislative areas
for which the U.S. Congress is allowed to act or enact legislation. For
every issue, the federal government lacks any authority or consent of
the governed and only the state governments, their designees, or the
people in their private market actions enjoy such rights to governance.
The tenth amendment is brutally clear in stating ``The powers not
delegated to the United States by the Constitution, nor prohibited by
it to the States, are reserved to the States respectively, or to the
people.'' Our nation's history makes clear that the U.S. Constitution
is a document intended to limit the power of central government. No
serious reading of historical events surrounding the creation of the
Constitution could reasonably portray it differently. Of course, there
will be those who will hand their constitutional ``hats'' on the
interstate commerce or general welfare clauses, both of which have been
popular ``headgear'' since the plunge into New Deal Socialism.
Perhaps, more dangerous is the loss of another Constitutional
protection which comes with the passage of more and more federal
criminal legislation. Constitutionally, there are only three federal
crimes. These are treason against the United States, piracy on the high
seas, and counterfeiting (and, as mentioned above, for a short period
of history, the manufacture, sale, or transport of alcohol was
concurrently a federal and state crime). ``Concurrent'' jurisdiction
crimes, such as alcohol prohibition in the past and eavesdropping
today, erode the right of citizens to be free of double jeopardy. The
fifth amendment to the U.S. Constitution specifies that no ``person be
subject for the same offense to be twice put in jeopardy of life or
limb . . .'' In other words, no person shall be tried twice for the
same offense. However, in United States v. Lanza, the high court in
1922 sustained a ruling that being tried by both the federal government
and a state government for the same offense did not offend the doctrine
of double jeopardy. One danger of unconstitutionally expanding the
federal justice code is that it seriously increases the danger that one
will be subject to being tried twice for the same crime. Despite the
various pleas for federal correction of societal wrongs, a national
police force is neither prudent nor constitutional.
The argument which springs from the criticism of a federalized
criminal code and a federal police force is that states may be less
effective than a centralized federal government in dealing with those
who leave one state jurisdiction for another. Fortunately, the
Constitution provides for the procedural means for preserving the
integrity of state sovereignty over those issues delegated to it via
the tenth amendment. Article IV, Section 2, Clause 2 makes provision
for the rendition of fugitives from one state to another. While not
self-enacting, in 1783 Congress passed an act which did exactly this.
There is, of course, a cost imposed upon states in working with one
another rather than relying on a national, unified police force. At the
same time, there is a greater cost to centralization of police power.
It is important to be reminded of the benefits of federalism as well
as the costs. There are sound reasons to maintain a system of smaller,
independent jurisdictions--it is called competition and governments
must, for the sake of the citizenry, be allowed to compete. We have
obsessed so much over the notion of ``competition'' in this country we
harangue someone like Bill Gates when, by offering superior products to
every other similarly-situated entity, he becomes the dominant provider
of certain computer products. Rather than allow someone who serves to
provide values as made obvious by their voluntary exchanges in the free
market, we lambaste efficiency and economies of scale in the private
marketplace. Yet, at the same time, we further centralize government,
the ultimate monopoly and one empowered by force rather than voluntary
exchange.
As government becomes more centralized, it becomes much more
difficult to vote with one's feet to escape the relatively more
oppressive governments. Governmental units must remain small with ample
opportunity for citizen mobility both to efficient governments and away
from those which tend to be oppressive. Centralization of criminal law
makes such mobility less and less practical.
For each of these reasons, among others, I must oppose the further
and unconstitutional centralization of police power in the national
government and, accordingly, H.R. 514.
The CHAIRMAN. All time for general debate has expired.
Pursuant to the rule, the bill shall be considered under the 5-minute
rule by section, and each section shall be considered read.
[[Page H805]]
During consideration of the bill for amendment, the Chair may accord
priority in recognition to a Member offering an amendment that has been
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
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:
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Wireless Privacy Enhancement
Act of 1999''.
The CHAIRMAN. Are there any amendments to section 1?
The Clerk will designate section 2.
The text of section 2 is as follows:
SEC. 2. COMMERCE IN ELECTRONIC EAVESDROPPING DEVICES.
(a) Prohibition on Modification.--Section 302(b) of the
Communications Act of 1934 (47 U.S.C. 302a(b)) is amended by
inserting before the period at the end thereof the following:
``, or modify any such device, equipment, or system in any
manner that causes such device, equipment, or system to fail
to comply with such regulations''.
(b) Prohibition on Commerce in Scanning Receivers.--Section
302(d) of such Act (47 U.S.C. 302a(d)) is amended to read as
follows:
``(d) Equipment Authorization Regulations.--
``(1) Privacy protections required.--The Commission shall
prescribe regulations, and review and revise such regulations
as necessary in response to subsequent changes in technology
or behavior, denying equipment authorization (under part 15
of title 47, Code of Federal Regulations, or any other part
of that title) for any scanning receiver that is capable of--
``(A) receiving transmissions in the frequencies that are
allocated to the domestic cellular radio telecommunications
service or the personal communications service;
``(B) readily being altered to receive transmissions in
such frequencies;
``(C) being equipped with decoders that--
``(i) convert digital domestic cellular radio
telecommunications service, personal communications service,
or protected specialized mobile radio service transmissions
to analog voice audio; or
``(ii) convert protected paging service transmissions to
alphanumeric text; or
``(D) being equipped with devices that otherwise decode
encrypted radio transmissions for the purposes of
unauthorized interception.
``(2) Privacy protections for shared frequencies.--The
Commission shall, with respect to scanning receivers capable
of receiving transmissions in frequencies that are used by
commercial mobile services and that are shared by public
safety users, examine methods, and may prescribe such
regulations as may be necessary, to enhance the privacy of
users of such frequencies.
``(3) Tampering prevention.--In prescribing regulations
pursuant to paragraph (1), the Commission shall consider
defining `capable of readily being altered' to require
scanning receivers to be manufactured in a manner that
effectively precludes alteration of equipment features and
functions as necessary to prevent commerce in devices that
may be used unlawfully to intercept or divulge radio
communication.
``(4) Warning labels.--In prescribing regulations under
paragraph (1), the Commission shall consider requiring labels
on scanning receivers warning of the prohibitions in Federal
law on intentionally intercepting or divulging radio
communications.
``(5) Definitions.--As used in this subsection, the term
`protected' means secured by an electronic method that is not
published or disclosed except to authorized users, as further
defined by Commission regulation.''.
(c) Implementing Regulations.--Within 90 days after the
date of enactment of this Act, the Federal Communications
Commission shall prescribe amendments to its regulations for
the purposes of implementing the amendments made by this
section.
The CHAIRMAN. Are there any amendments to section 2?
The Clerk will designate section 3.
The text of section 3 is as follows:
SEC. 3. UNAUTHORIZED INTERCEPTION OR PUBLICATION OF
COMMUNICATIONS.
Section 705 of the Communications Act of 1934 (47 U.S.C.
605) is amended--
(1) in the heading of such section, by inserting
``INTERCEPTION or'' after ``UNAUTHORIZED'';
(2) in the first sentence of subsection (a), by striking
``Except as authorized by chapter 119, title 18, United
States Code, no person'' and inserting ``No person'';
(3) in the second sentence of subsection (a)--
(A) by inserting ``intentionally'' before ``intercept'';
and
(B) by striking ``and divulge'' and inserting ``or
divulge'';
(4) by striking the last sentence of subsection (a) and
inserting the following: ``Nothing in this subsection
prohibits an interception or disclosure of a communication as
authorized by chapter 119 of title 18, United States Code.'';
(5) in subsection (e)(1)--
(A) by striking ``fined not more than $2,000 or''; and
(B) by inserting ``or fined under title 18, United States
Code,'' after ``6 months,''; and
(6) in subsection (e)(3), by striking ``any violation'' and
inserting ``any receipt, interception, divulgence,
publication, or utilization of any communication in
violation'';
(7) in subsection (e)(4), by striking ``any other activity
prohibited by subsection (a)'' and inserting ``any receipt,
interception, divulgence, publication, or utilization of any
communication in violation of subsection (a)''; and
(8) by adding at the end of subsection (e) the following
new paragraph:
``(7) Notwithstanding any other investigative or
enforcement activities of any other Federal agency, the
Commission shall investigate alleged violations of this
section and may proceed to initiate action under section 503
of this Act to impose forfeiture penalties with respect to
such violation upon conclusion of the Commission's
investigation.''.
The CHAIRMAN. Are there any amendments to section 3?
Amendment Offered by Mrs. Wilson
Mrs. WILSON. Mr. Chairman, I offer an amendment.
The CHAIRMAN. The Clerk will designate the amendment.
The text of the amendment is as follows:
Amendment offered by Mrs. Wilson:
Page 5, strike lines 14 and 15 and insert the following:
(B) by striking ``communication and divulge'' and inserting
``communication, and no person having intercepted such a
communication shall intentionally divulge'';
(4) in the fourth sentence of subsection (a)--
(A) by inserting ``(A)'' after ``intercepted, shall''; and
(B) by striking ``thereof) or'' and inserting ``thereof);
or (B)'';
Page 5, line 16, strike ``(4)'' and insert ``(5)''.
Page 5, line 21, strike ``(5)'' and insert ``(6)''.
Page 6, line 1, strike ``(6)'' and insert ``(7)''.
Page 6, line 5, strike ``(7)'' and insert ``(8)''.
Page 6, line 10, strike ``(8)'' and insert ``(9)''.
Mrs. WILSON. Mr. Chairman, concern was raised during the
consideration of this bill by several folks who were concerned about
first amendment rights. It was a drafting point, but it needed to be
fixed in order to make it perfectly clear. We do not want to make it a
crime to divulge or publish information that someone does not know came
from an intercepted cell call. That would criminalize unintentional
acts.
Mr. Chairman, say a reporter gets a scoop from a source, not knowing
that it came from an intercepted call, for example. We do not want that
to be a crime, even if the interception is a crime. But we do wish to
prohibit people divulging information that they know was illegally
intercepted, even if they were not the ones that actually intercepted
the call. If we did not do that, that would be a loophole to drive a
truck through.
How could that happen? Let us say I am illegally monitoring cell
calls, whether for pleasure or just systematically, and I intercept a
cell call of a builder who is talking over his phone who talks about
information on a bid that he is going to give on a job. I give it to my
buddy, and my buddy divulges it to another builder or divulges it
publicly. It should be a crime to divulge that information if one knows
that it came from an intercepted call. It should be a crime for me to
do it or for my buddy to do it, if he knows that I have been scanning
those calls.
This amendment makes that clarification, that it is a crime to
intentionally intercept. It is a crime to intentionally divulge. It is
not a crime to divulge it if one does not know where the information
came from. It sounds a little bit confusing, but this amendment will
protect first amendment rights while criminalizing eavesdropping and
those who are a part of eavesdropping schemes.
Mr. MARKEY. Mr. Chairman, I rise in support of the amendment.
Mr. Chairman, this is a very important clarifying amendment which
will protect innocent people from being swept up in a statute which is
clearly aimed at wrongdoers. I want to congratulate the gentlewoman
from New
[[Page H806]]
Mexico (Mrs. Wilson) for this important refinement, which I think at
the point of enforcement is going to be very helpful to law enforcement
officials because it will make it quite clear what it was that Congress
intended. I would urge all Members to support the amendment.
The CHAIRMAN. The question is on the amendment offered by the
gentlewoman from New Mexico (Mrs. Wilson).
The amendment was agreed to.
The CHAIRMAN. Are there any further amendments to the bill?
If there are no further amendments, under the rule the committee now
rises.
Accordingly, the Committee rose; and the Speaker pro tempore (Mr.
Young of Florida) having assumed the chair, Mr. LaHood, 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. 514) to
amend the Communications Act of 1934 to strengthen and clarify
prohibitions on electronic eavesdropping, and for other purposes,
pursuant to House Resolution 77, 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.
The question is on the amendment.
The amendment 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. TAUZIN. Mr. Speaker, I object to the vote on the ground that a
quorum is not present and make the point of order that a quorum is not
present.
The SPEAKER pro tempore. Evidently, a quorum is not present.
The Sergeant at Arms will notify absent Members.
The vote was taken by electronic device, and there were--yeas 403,
nays 3, not voting 28, as follows:
[Roll No. 28]
YEAS--403
Abercrombie
Aderholt
Allen
Andrews
Archer
Armey
Bachus
Baird
Baker
Baldacci
Baldwin
Ballenger
Barcia
Barr
Barrett (NE)
Barrett (WI)
Bartlett
Barton
Bass
Bateman
Becerra
Bentsen
Bereuter
Berkley
Berman
Berry
Biggert
Bilbray
Bilirakis
Bishop
Blagojevich
Bliley
Blumenauer
Blunt
Boehlert
Boehner
Bonilla
Bono
Borski
Boswell
Boucher
Boyd
Brady (PA)
Brady (TX)
Brown (CA)
Brown (FL)
Brown (OH)
Bryant
Burr
Burton
Buyer
Callahan
Calvert
Camp
Campbell
Canady
Cannon
Capuano
Cardin
Carson
Castle
Chabot
Chambliss
Chenoweth
Clay
Clayton
Clement
Clyburn
Coble
Coburn
Collins
Combest
Condit
Conyers
Cook
Cooksey
Costello
Cox
Coyne
Cramer
Crane
Crowley
Cubin
Cummings
Cunningham
Danner
Davis (FL)
Davis (IL)
Deal
DeFazio
DeGette
Delahunt
DeLauro
DeLay
DeMint
Deutsch
Diaz-Balart
Dicks
Dingell
Dixon
Doggett
Dooley
Doolittle
Doyle
Dreier
Duncan
Dunn
Edwards
Ehlers
Ehrlich
Emerson
Engel
English
Etheridge
Evans
Everett
Ewing
Farr
Fattah
Filner
Fletcher
Foley
Forbes
Ford
Fossella
Fowler
Franks (NJ)
Frelinghuysen
Frost
Gallegly
Ganske
Gejdenson
Gekas
Gibbons
Gilchrest
Gillmor
Gilman
Gonzalez
Goode
Goodlatte
Gordon
Goss
Graham
Granger
Green (TX)
Green (WI)
Greenwood
Gutierrez
Gutknecht
Hall (OH)
Hall (TX)
Hansen
Hastings (FL)
Hastings (WA)
Hayes
Hayworth
Hefley
Herger
Hill (IN)
Hill (MT)
Hilleary
Hilliard
Hinojosa
Hobson
Hoeffel
Hoekstra
Holden
Holt
Hooley
Horn
Hostettler
Houghton
Hoyer
Hulshof
Hunter
Hutchinson
Hyde
Inslee
Isakson
Istook
Jackson (IL)
Jackson-Lee (TX)
Jefferson
Jenkins
John
Johnson (CT)
Johnson, E. B.
Johnson, Sam
Jones (NC)
Jones (OH)
Kanjorski
Kaptur
Kelly
Kildee
Kilpatrick
Kind (WI)
King (NY)
Kingston
Kleczka
Klink
Knollenberg
Kucinich
Kuykendall
LaFalce
LaHood
Lampson
Lantos
Largent
Larson
Latham
LaTourette
Lazio
Leach
Levin
Lewis (CA)
Lewis (GA)
Lewis (KY)
Linder
Lipinski
LoBiondo
Lofgren
Lowey
Lucas (KY)
Lucas (OK)
Luther
Maloney (CT)
Maloney (NY)
Manzullo
Markey
Martinez
Mascara
Matsui
McCarthy (MO)
McCarthy (NY)
McCollum
McCrery
McGovern
McHugh
McInnis
McIntosh
McIntyre
McKeon
McKinney
McNulty
Meehan
Meek (FL)
Menendez
Metcalf
Mica
Millender-McDonald
Miller (FL)
Miller, Gary
Minge
Mink
Mollohan
Moore
Moran (KS)
Moran (VA)
Morella
Murtha
Myrick
Nadler
Napolitano
Neal
Nethercutt
Ney
Northup
Norwood
Nussle
Oberstar
Obey
Olver
Ortiz
Ose
Owens
Oxley
Packard
Pallone
Pascrell
Pease
Peterson (MN)
Peterson (PA)
Petri
Phelps
Pickering
Pickett
Pitts
Pombo
Pomeroy
Porter
Portman
Price (NC)
Pryce (OH)
Quinn
Radanovich
Rahall
Ramstad
Rangel
Reynolds
Riley
Rivers
Rodriguez
Roemer
Rogers
Rohrabacher
Ros-Lehtinen
Rothman
Roukema
Roybal-Allard
Ryan (WI)
Ryun (KS)
Sabo
Salmon
Sanchez
Sanders
Sandlin
Sanford
Sawyer
Saxton
Scarborough
Schaffer
Schakowsky
Scott
Sensenbrenner
Serrano
Sessions
Shadegg
Shaw
Shays
Sherman
Sherwood
Shimkus
Shows
Shuster
Simpson
Sisisky
Skeen
Skelton
Slaughter
Smith (MI)
Smith (NJ)
Smith (TX)
Smith (WA)
Snyder
Souder
Spence
Spratt
Stabenow
Stark
Stearns
Stenholm
Strickland
Stump
Stupak
Sununu
Sweeney
Talent
Tancredo
Tanner
Tauscher
Tauzin
Taylor (MS)
Taylor (NC)
Terry
Thomas
Thompson (CA)
Thompson (MS)
Thornberry
Thune
Thurman
Tiahrt
Tierney
Toomey
Traficant
Turner
Udall (CO)
Udall (NM)
Upton
Velazquez
Vento
Visclosky
Walden
Walsh
Wamp
Watkins
Watt (NC)
Watts (OK)
Waxman
Weiner
Weldon (FL)
Weldon (PA)
Weller
Wexler
Weygand
Whitfield
Wicker
Wilson
Wise
Wolf
Wu
Wynn
Young (AK)
Young (FL)
NAYS--3
Hinchey
McDermott
Paul
NOT VOTING--28
Ackerman
Bonior
Capps
Davis (VA)
Dickey
Eshoo
Frank (MA)
Gephardt
Goodling
Kasich
Kennedy
Kolbe
Lee
Livingston
Meeks (NY)
Miller, George
Moakley
Pastor
Payne
Pelosi
Regula
Reyes
Rogan
Royce
Rush
Towns
Waters
Woolsey
{time} 1147
Mr. HINCHEY changed his vote from ``yea'' to ``nay.''
So the bill was passed.
The result of the vote was announced as above recorded.
A motion to reconsider was laid on the table.
Stated for:
Ms. LEE. Mr. Speaker, on rollcall No. 28, I was traveling with the
Chairman, Subcommittee on Africa and was unavoidably absent for the
vote on H.R. 514. Had I been present, I would have voted ``yes.''
Mr. GOODLING. Mr. Speaker, regrettably I was unavoidably detained for
rollcall vote 28. Had I been present, I would have voted ``yes.''
____________________