[Congressional Record Volume 145, Number 82 (Thursday, June 10, 1999)]
[Senate]
[Pages S6840-S6843]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                                Y2K ACT

  The Senate continued with the consideration of the bill.
  The PRESIDING OFFICER. The Senator from Washington.
  Mr. GORTON. Mr. President, the distinguished Senator from California 
is now back on the floor, and we are dealing with her amendment.
  There was an extensive effort to reach agreement on a form of that 
amendment. Regrettably those efforts were not successful. There simply 
is a significant difference of opinion on the policies that it 
propounds. I intend to speak for a relatively short period of time in 
opposition to the amendment. I am certain that the Senator from 
California would like to speak for her amendment. I know the Senator 
from Connecticut is here, and I know the Senator from California wishes 
to speak.

  Shortly after that succession is completed, if there is no one else 
who wishes to participate in the debate, there will be a motion to 
table the Boxer amendment.
  The Boxer amendment requires, as a part of the remediation, that a 
manufacturer make available to a plaintiff a repair or replacement at 
cost for any product first introduced after January 1, 1990, and at no 
charge under the same circumstances for a product first introduced for 
sale after the end of 1994.
  The amendment is overwhelmingly too broad. For example, the Internal 
Revenue Service allows, at most, 5, and in many cases only 3, years in 
which to write off the cost of products of this nature, determining 
that is their useful life. If they are used in a business, therefore, 
they have been depreciated to a zero value in every case--not every 
case covered by this matter, but in the vast majority of the cases 
covered by this amendment.
  In many of these cases, under the second subsection, it simply means 
that the plaintiff is entitled to absolutely free replacement. That 
computer, if it is a home computer, may long since have been relegated 
to the attic, unused. Yet the original manufacturer would have to 
replace it. In many cases, the new parts would not work. A 1990 
computer is not very readily upgradeable. It does not have the speed or 
the memory of a 1999 computer. Y2K problems are probably the least of 
the problems with which such a manufacturer is faced.
  I spoke yesterday on the bill as a whole, the tremendous way in which 
our lives and technology have been changed by this revolution; 1990 is 
several generations ago with respect both to hardware and to software. 
How do we go about doing this? Precisely what products are covered?
  We simply have a situation in which the amendment is too broad and 
missing in specificity. We have an attempt to amend a bill that is 
designed to discourage litigation and to limit litigation that, if 
adopted, will significantly increase the amount of litigation and the 
number of causes of action that would take place without any 
legislation at all.
  In other words, this amendment would create new causes of action that 
probably do not exist anywhere under present law. Under those 
circumstances, while we should certainly encourage remediation and 
fixes, this might well have exactly the opposite impact. We have all 
kinds of duties listed in here with respect to manufacturers--and to 
others, for that matter. It is not only unnecessary to add this new 
duty and this new potential for causes of action, this proposal is 180 
degrees in opposition.
  Therefore, with regret and sorrow that we were not able to work it 
out, I must for myself, and I suspect for a majority of the Senate, 
object to the amendment and trust we will soon have a vote on that 
subject.

[[Page S6841]]

  Mrs. BOXER. Mr. President, I thank the Senator from Washington for 
not moving to table at this time so I have an opportunity to respond to 
his comments.
  I want the Senate to understand those who are supporting this bill 
came back to this Senator with a suggestion on how I could change the 
amendment so it would be agreeable to them. We agreed with their 
changes. We said fine, we are willing to back off a little bit.
  Guess what happened? My colleagues on the other side of the aisle 
still would not accept it.
  It is not the Senator from California who was unwilling to make the 
amendment more workable to the other side. It was the other side who 
recommended a change. When we said OK, they decided it was still 
unacceptable.
  I don't quite understand it. Now there is going to be a motion to 
table this amendment.
  I see the Senator from Illinois is on the floor. I wanted to make 
sure he understood we were negotiating to try to reach an agreement. We 
were offered some changes. Even though we did not think they were 
perfect, we accepted them. The other side, however, continues to 
resist.
  I don't know whom they checked with, but it was not the consumers, 
because this is the only proconsumer amendment that I thought had a 
chance to make it into this bill.
  Mr. DURBIN. Will the Senator yield?
  Mrs. BOXER. I am happy to yield to the Senator.
  Mr. DURBIN. Did I understand the Senator from California to say this 
was part of the original legislation on this subject, the idea that the 
businesses which bought the computers and the software that didn't work 
would at least have some help in repairing it so they could keep their 
businesses going and not shut down and cost jobs? Is it correct that 
this was originally part of the proposal?
  Mrs. BOXER. The Senator is exactly right.
  The proposal I had in the form of this amendment was taken almost 
verbatim from a bill that was offered by two Republican House Members, 
Chris Cox and David Dreier, very good friends of the business 
community. The concept for my amendment was essentially taken from that 
bill.
  Mr. DURBIN. Will the gentlelady yield?
  I think the Senator makes a very good point. The Senator said at 
various times this is a consumer amendment, this is a probusiness 
amendment.
  Mrs. BOXER. No question.
  Mr. DURBIN. We are talking about small and medium-sized businesses, 
dependent on computers, that discover, January 2, the year 2000, they 
have a serious problem.
  What the Senator from California is suggesting is, if it is an old 
computer, one that goes back over 5 years, they would have to pay the 
cost of whatever the repair; if it has been purchased in the last 5 
years--a period of time when everyone generally sensed this problem was 
coming--the computer company would fix it without charge.
  A lot of businesses would retain the ability to keep going, making 
their products and keeping their people working.
  This is not just proconsumer, this is probusiness. It troubles me to 
see so many business groups lined up against this amendment. It seems 
to me counterintuitive.
  I think what the Senator from California is doing is showing 
sensitivity that virtually all friends of business should show in this 
legislation.
  Mrs. BOXER. I thank my friend.
  I think the amendment pending--which, unfortunately, the other side 
is going to move to table--is a proconsumer, probusiness, pro-ordinary 
person amendment. It is a commonsense amendment.
  It simply says to the manufacturer, if you have a fix available and 
you determine you do, then fix the problem. We are only talking about 
computers that were made in the last 10 years. We are exempting all the 
rest.
  We are not adding an undue burden. There are a lot of good people out 
there who are making the fixes. We are saying to the rest of business, 
emulate that, fix the problem, and there will be no lawsuits, no 
waiting at the courthouse door; you will be able to get your computer 
back in operation, you will be able to keep your business going and 
growing.
  For some reason, the other side cannot see their way clear to 
accepting this.
  Mr. HOLLINGS. Will the Senator yield?
  I want to credit Senator Durbin for educating this Senator. These 
fellows have to come over from the House and tell Senators how to act. 
I never heard ``gentlelady,'' but now I like it.
  If the distinguished gentlelady will yield, I have been here since, 
of course, the beginning of the debate. It has been what they call 
predatory legalistic, predatory legal practices, lawsuits, racing to 
the courthouse, running to the courthouse, picking out someone down the 
line with deep pockets.
  The distinguished Senator, as I understand it, is only asking for a 
fix. The amendment is not asking to race to the courthouse, but to race 
away from the courthouse.
  Mrs. BOXER. Exactly.
  Mr. HOLLINGS. Just get a fix.
  And now they don't even want to agree on fixing the thing.
  Mrs. BOXER. Right.
  Mr. HOLLINGS. Maybe if we keep to this debate long enough, they, on 
the other side of the aisle, will ask us to send money to the poor 
computer industry. We ought to take up contributions. We have to change 
the laws for them. All we want to do is get the computer fixed, but now 
they even oppose that.
  Is that the case? Isn't that the amendment, really--to get it fixed? 
It has nothing to do with bringing a legal proceeding or economic loss 
or any of that?
  Mrs. BOXER. My friend is so right. We do not touch one thing in the 
underlying bill.
  Mr. HOLLINGS. I see. I thank the Senator.
  Mrs. BOXER. As it relates to lawsuits, it has the same exact 
provisions. All we say is, if a manufacturer has a fix available, do 
the fix. Be a good actor. Be good corporate citizens. Do what most of 
the fine companies are doing up and down the State of California and 
throughout the country. They knew this problem was coming, and the good 
ones have done something about it. This amendment, frankly, was brought 
to me by the consumer groups. They said: You know, no one is really 
talking about fixing the problem. They are all talking about legalisms 
here. It made so much sense to me.
  It was brought to me by the consumer groups, taken straight out of 
the Chris Cox-David Dreier original Y2K legislation. But we cannot even 
get ourselves here to support this very simple matter.
  As a matter of fact, Cox-Dreier went even further than my amendment. 
Let me tell you what they said. They said, if you do not do the fix and 
you had the fix, you do not get the protections of the underlying bill. 
Imagine. David Dreier and Chris Cox. And when I looked at that, I said, 
that is a little tough on my computer people; I am not going to go that 
far. All we say is, if you have a fix and you do not do it, then if you 
do sue, the judge has to consider all these facts when he or she 
determines the damages to be awarded, if any.
  So here we have a proconsumer amendment. My friends on the other side 
come back with some changes to it. I say: Fine, I am willing to do it. 
And they say: Oh, never mind, never mind.
  If we vote down this amendment, I say to my friends, there is nothing 
in this bill, that I see, that does anything for consumers. There is 
nothing in this bill that helps them. There is nothing in this bill 
that helps, by the way, the good corporate actors out there who are 
already doing the right thing. All this is about is protecting the bad 
actors, the bad folks who are not doing the right thing, who, if they 
are listening to this debate and if they are smart--and believe me, 
they are smart--what are they hearing? Hey, if you are really fixing 
matters now, cool it. Why do it? Why spend any money? Under this 
underlying bill, you do not have to do a thing.
  I am just a normal person here, not a lawyer, OK? Maybe that is part 
of my problem. They call it a remediation period: 30-day notice. You 
notify the manufacturer that you have a problem. They have to write 
back. Good, that is

[[Page S6842]]

the McCain bill. They have to write back.
  Then you have a 60-day remediation period, but nothing is required of 
you. What are you remediating? We say, if there is a remediation 
period, let's make that terminology mean something: Remediate. It is a 
60-day period. We ought to fix the problem.
  The Boxer amendment, supported by Senators Durbin and Hollings and 
Torricelli and others, simply says let's make the remediation period 
true to its name.
  Mr. DURBIN. Will the Senator yield?
  Mrs. BOXER. I am happy to.
  Mr. DURBIN. As I look at this legislation which we are considering, 
the underlying bill, it is hard to argue with it. It starts out saying:
  The majority of responsible business enterprises in the United States 
are committed to working in cooperation with their contracting partners 
towards the timely and cost-effective resolution of the many 
technological, business and legal issues associated with the Y2K date 
change.

  That is the first paragraph of this bill. It is a perfect description 
of the Senator's amendment, because it says responsible businesses will 
be working to solve problems. In my colleague's situation, she is 
providing a means of resolving the problem short of going to court. 
That is what this is all about.
  Mrs. BOXER. Exactly.
  Mr. DURBIN. So those who are truly interested in the damage done to 
businesses must really step back and say the Boxer amendment is one 
that really addresses the damage that businesses will face--repeating, 
again: These are businesses depending on computers that may shut down 
because the computer they purchased is not proper, is not ready to deal 
with the new century.
  That is what this legislation, the amendment, is all about: Find a 
way to help these people stay in business. Responsible businesses 
dealing with responsible businesses, not racing off to court, not 
playing with lawyers. I am stunned that at this point the amendment by 
the Senator from California just has not been adopted. It troubles me 
when I think about it in the context of the underlying bill.
  If the people who are bringing this bill to the floor do not care 
that much about small and medium-sized businesses that will face the 
delays, face the layoffs, because of Y2K problems, this is not a 
probusiness bill. This is for an elite group of bad actors in an 
industry who have not done their homework and do not want to be held 
responsible for their bad conduct. That, to me, is not what we should 
be doing on the floor of the Senate.
  I think the Senator from California, when you take a look at the 
first paragraph of this bill, really has an amendment that addresses 
the bottom line.
  Mrs. BOXER. I thank my friend.
  As we pointed out earlier in this debate, when I hear people get up 
and talk about the high-tech industry and how great the high-tech 
industry is, I know it firsthand because I come from Silicon Valley 
country. I meet these people. I am in awe of them. And they are good. 
They are good at what they do. The vast majority of them are taking 
care of this problem. They ought to be encouraged to continue taking 
care of this problem. We should not reward those who are not taking 
care of the problem, who are riding along as if they did not know.
  I just love that quote from the Apple people. I do not have it here 
in front of me, but it is something like:
  We may not know a lot of things, but we knew the century was ending.
  At some point people said, ``Whoops, there is going to be a 
problem.'' I guarantee it was well before 1990. But I think we are 
being very careful in this amendment not to place an undue burden on 
these people. We are saying you can recover your costs from 1990 to 
1995; prior to that, you can charge anything you want. We really are 
being fair in this amendment.
  I am stunned we did not get this amendment accepted. I cannot tell 
you the feeling I have. I am amazed, because when I think about the 
beginnings of this bill--I remember being excited I was going to be the 
Chair on the Y2K problem, because I was in line to take that. I asked 
Senator Dodd if he could do it, because it was a tough time for me; I 
had an election, and I had my regular job. I knew I could not do it 
justice. I knew this was going to be a problem, and I wanted to make 
sure we could help consumers fix the problem and we could do it in a 
way that was fair to business.
  The 90-day cooling off period is a good idea, in my opinion. That is 
why I supported the Kerry bill, and I hope eventually that will be the 
bill that will become law. But the 90-day cooling off period does not 
mean you sit there with a fan. That is not my idea of a 90-day cooling 
off period.
  A 90-day cooling off period should be a time for everyone to sit 
back, see what the problem is, fix it, and remediate the problem.
  I have to ask my friend, Senator Hollings, who knows this bill like 
the back of his hand far better than I do, I keep reading to see what 
the requirement is in this cooling off period for the businesses. All I 
come up with, and please correct me if I am mistaken, is that once a 
company is notified that a consumer has a problem, under this bill, to 
get the protections of this bill, all that company has to do is write 
back to the consumer and say: Yes, I got your letter; I am looking at 
the problem; I don't know what I am going to do, but I will stay in 
touch with you.
  That is my understanding of what you have to do to meet the 
requirements to be protected by this, essentially, rewrite of the laws 
of our land. I want to know if I am correct or incorrect.
  Mr. HOLLINGS. The distinguished Senator from California is manifestly 
correct. We all live in a real world, and then what really happens, as 
we learned from Rosemary Woods, if you want to get rid of evidence, if 
you want to lay the blame--I am the lawyer for the computer company, 
and when I am notified about this particular claim and it comes across 
my desk, let's find out now why this thing really occurred, and if we 
can put it off and save the company some money on that part made in 
India, then we will get on to that or we will move it around here.
  What that does is it gives them 60 days to prepare all the defenses 
and even engage in interrogatories and depositions, which you are not 
allowed to do because you are the one required under this bill to stand 
back and cool off; whereas, I can come immediately then with my 
interrogatories and my depositions and pretty well have the case lined 
up during that 3-month period. Then I will know whether it pays for the 
company, because I am the lawyer, and I want to stay on it as a lawyer, 
my game is to save the company money. I say: Look, don't worry about 
that; we are going to send them to India to try that case and let them 
keep on making motions, because it is going to cost you $30,000 to fix 
it.
  They just sent a doctor in New Jersey $25,000 as a fix for a purchase 
he made the year before for only $13,000. That is why it is silent. 
Everybody knows how they draw up these bills and what really occurs. 
The company is allowed to engage in all kinds of shenanigans--
depositions, interrogatories, prepare defenses--and the poor plaintiff, 
the injured party, is going out of business; he is losing his 
customers. He tells his employees: I cannot make this monthly payment. 
I am not getting any money. I am closing down.
  The employees are angry. What the Senator from California has in her 
bill is just perfect: a fix. That is all we want. Out with the lawyers, 
in with the fix. That is the Boxer amendment. The way the bill reads, 
the Senator has it analyzed correctly.
  Mrs. BOXER. Basically, what we are saying is the amendment is: 
Remediate and you will not need to litigate. That is basically this 
amendment. Remediate and you will not have to litigate. Just fix the 
problem, and let's get on with our lives.
  I want to ask my friend another question. Let's say in this year, 
today, I am a small businessperson. I run a small travel agency, say, 
out of my home. I am very computer dependent. I go to a store. I buy a 
computer. They say it is Y2K compliant; it is not going to be a 
problem. I have it just a few months, say, 6 months. I wake up on that 
day and it is down, and it is down the next day, and it is down the 
next day.
  I want to talk about what happens under the McCain bill. What do I 
do? As I understand it, I write to the company, and I say: I am 
stunned. I bought it 6 months ago. I spent $15,000 for it, and it isn't 
working.

[[Page S6843]]

  Under this bill, as I understand it, if they do not accept this Boxer 
amendment, which clearly they are not, and if it is not adopted, which 
it probably will not be, as I understand it, all the company has to do 
is write back and say: We got your notification; we will stay in touch 
with you.

  Mr. HOLLINGS. Exactly.
  Mrs. BOXER. Right? Now they qualify for the special protections under 
this law. They do not have to fix it. They certainly do not have to fix 
it for free.
  Mr. HOLLINGS. Exactly.
  Mrs. BOXER. If they fix it, they can charge more than what the 
computer costs. My friend has proof of that; does he not?
  Mr. HOLLINGS. That is exactly right. That came out at the hearings. 
Witnesses have attested to it.
  Mrs. BOXER. The bottom line is, if we do not adopt this Boxer 
amendment, then what is in this bill to encourage fixing the problem? 
This is ironic, because the idea is to stop the litigation, fix the 
problem, have a cooling off period where we remediate the problem.
  David Dreier and Chris Cox in 1998 understood it. They put it in 
their bill. My friends on the other side, having indicated they would 
be inclined to take this amendment with some changes, I agreed to those 
changes. Yet, we were still unable to reach an agreement.
  I am perplexed, I say to my friend. What are we doing here anyway? 
What is this about? Is this about protecting the consumer? Is this 
about getting things fixed? Is this about standing proud of the good 
computer companies that are making the fix?
  Mr. HOLLINGS. The last thing a computer purchaser, a user wants to 
get involved with is law. That is the last thing. That is what they are 
saying in the bill. The intent of the McCain measure provides you do 
not get into racing to the courthouse.
  The answer to the Senator's question is, that is exactly what is 
required; namely, I am a computer purchaser and user and it goes on the 
blink. I am trying to get in touch with them, and they know the laws. I 
never heard of the law. They will not hear of it, whatever it is. I 
have written a letter, and I keep calling, and like the doctor from New 
Jersey who testified before the Commerce Committee said, he called at 2 
weeks, 3 weeks and nothing happened. They like that, because the 
computer operator and purchaser do not know anything about these 
special laws and provisions of the McCain measure.
  What happens is, it puts them into a bunch of legal loopholes. It 
actually engages a consumer in a bunch of laws that are unique only to 
him, and he never has heard of and he is going to have to learn the 
hard way about putting a letter in, certain days to cool off, then do 
this, and all these other measures.
  Heaven's above, it is so clearly brought out in Senator Boxer's 
amendment that all we want to do is get the blooming thing fixed and 
get away. Out with the lawyers and in with the fix. That is what the 
Senator is saying, but they do not even accept it.
  Mrs. BOXER. I know, and I am just completely astounded. I have to 
believe the people who vote against this amendment may not want to be 
around here on January 3, or whenever it is we get back. People are 
going to be calling. They are going to say: We heard all about this Y2K 
bill; didn't you fix our problem?
  Mr. HOLLINGS. No, we created a problem.
  Mrs. BOXER. Right. They are going to call up their Senator: Senator 
so and so, you were proud to stand here for that Y2K bill. What did it 
do?
  I view it as an insult to the good people in the Silicon Valley, to 
the good people in San Diego, to the good people in Los Angeles who 
work at this night and day, who knew the century was going to end and 
took steps to prepare for this day, who are making fixes.
  Now what happens? The people who were irresponsible are getting a 
loud message from this Senate, particularly when they vote down this 
Boxer amendment: Oh, boy, we did the right thing by not fixing 
anybody's computer. We did the right thing just to sit back and see 
what happens. We have been protected by the most deliberative body in 
the world; they protected us from not doing the right thing.

  I just do not get it around here. Sometimes I wonder for whom we are 
here. I do not get it, because to not have this amendment accepted, the 
only people you are helping are the people who do not want to make the 
fix. It is outrageous to me. This amendment is probusiness, it is pro 
the good businesspeople, the good corporate citizens. I just do not get 
it. It would reward those who have not done the fixes.
  I have run out of arguments. I have a hunch that minds are made up. I 
don't know how I get that feeling. But I have a feeling that minds are 
made up on this, that this is going to be tabled. We will have a bill, 
then, that has not one thing in it for the consumers of this country. I 
have news for the people who are not going to vote for this: Every 
single American is a consumer, bottom line. I hope they rethink their 
position. I was willing to compromise and get a good amendment through, 
but, unfortunately, the other side could not agree to that. Let's get 
on with the vote. I yield the floor.
  The PRESIDING OFFICER. The Senator from Washington.
  Mr. GORTON. Mr. President, it constantly amazes me, whether the 
subject is education or business regulation or computer software, that 
Members in this Chamber know much more about the subject than do those 
who are in the business. It is the very companies the Senator from 
California so praises is doing things right that have felt, in order to 
concentrate on fixing Y2K problems, rather than having run the gauntlet 
set for them by trial lawyers, that this legislation is necessary.
  It is simply because they prefer to fix the problem in the real world 
than to face endless litigation that we are here today. That same group 
of highly responsible organizations thinks this amendment will actually 
create more litigation, that it ought to be entitled ``The Free 
Computer Act of 1999,'' because really the only way to make sure you 
are not sued will be to replace the computer lock, stock, and barrel, 
even if it is three generations out of date, even if it is in the 
attic.
  So the reasons to oppose this amendment are quite easy to determine. 
They are that we want the problem fixed, we want the problem fixed in 
the real world, not for years and years thereafter, after expensive 
litigation, punitive damages, consequential damages, everything that 
afflicts our legal system today.
  I had hoped we would complete the debate and begin the vote at this 
point. We have, however, taken too much time. There is now a markup of 
the Senate Appropriations Committee that involves both me and two of 
the three other Senators on the floor at the present time. In order to 
not disrupt that markup, I announce that a motion to table will be made 
immediately after that Appropriations Committee markup has been 
concluded.
  With that, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. WELLSTONE. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. WELLSTONE. I ask unanimous consent that I be allowed to speak for 
10 minutes as in morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. WELLSTONE. I thank the Chair.

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