[Congressional Record Volume 145, Number 155 (Friday, November 5, 1999)]
[Senate]
[Pages S14222-S14223]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




     CONTINUED REPORTING OF INTERCEPTED WIRE, ORAL, AND ELECTRONIC 
                           COMMUNICATIONS ACT

  Mr. DOMENICI. Mr. President, I ask unanimous consent that the Senate 
proceed to the immediate consideration of Calendar No. 355, S. 1769.
  The PRESIDING OFFICER. The clerk will report the bill by title.
  The assistant legislative clerk read as follows:

       A bill (S. 1769) to continue the reporting requirements of 
     section 2519 of title 18, United States Code, beyond December 
     21, 1999, and for other purposes.

  There being no objection, the Senate proceeded to consider the bill 
which had been reported from the Committee on the Judiciary with 
amendments, as follows:
  (The parts of the bill intended to be stricken are shown in boldface 
brackets and the parts of the bill intended to be inserted are shown in 
italic.)

                                S. 1769

       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 ``Continued Reporting of 
     Intercepted Wire, Oral, and Electronic Communications Act''.

     SEC. 2. FINDINGS.

       Congress makes the following findings:
       (1) Section 2519(3) of title 18, United States Code, 
     requires the Director of the Administrative Office of the 
     United States Courts to transmit to Congress a full and 
     complete annual report concerning the number of applications 
     for orders authorizing or approving the interception of wire, 
     oral, or electronic communications. This report is required 
     to include information specified in section 2519(3).
       (2) The Federal Reports Elimination and Sunset Act of 1995 
     provides for the termination of certain laws requiring 
     submittal to Congress of annual, semiannual, and regular 
     periodic reports as of December 21, 1999, 4 years from the 
     effective date of that Act.
       (3) Due to the Federal Reports Elimination Act and Sunset 
     Act of 1995, the Administrative Office of United States 
     Courts is not required to submit the annual report described 
     in section 2519(3) of title 18, United States Code, as of 
     December 21, 1999.

     SEC. 3. CONTINUED REPORTING REQUIREMENTS.

       (a) Continued Reporting Requirements.--Section 2519 of 
     title 18, United States Code, is amended by adding at the end 
     the following:
       ``(4) The reports required to be filed by subsection (3) 
     are exempted from the termination provisions of section 
     3003(a) of the Federal Reports Elimination and Sunset Act of 
     1995 (Public Law 104-66).''.
       (b) Exemption.--Section 3003(d) of the Federal Reports 
     Elimination and Sunset Act of 1995 (Public Law 104-66) is 
     amended--
       (1) in paragraph (31), by striking ``or'' at the end;
       (2) in paragraph (32), by striking the period and inserting 
     ``; or''; and
       (3) by adding at the end the following:
       ``(33) section 2519(3) of title 18, United States Code.''.

     SEC. 4. ENCRYPTION REPORTING REQUIREMENTS.

       [Section 2519(1)(b)] (a) Section 2519(2)(b) of title 18, 
     United States Code, is amended by striking ``and (iv)'' and 
     inserting ``(iv) the number of orders in which encryption was 
     encountered and whether such encryption prevented law 
     enforcement from obtaining the plain text of communications 
     intercepted pursuant to such order, and (v)''.
       (b) The encryption reporting requirement in subsection (a) 
     shall be effective for the report transmitted by the Director 
     of the Administrative Office of the Courts for calendar year 
     2000 and in subsequent reports.

     SEC. 5. REPORTS CONCERNING PEN REGISTERS AND TRAP AND TRACE 
                   DEVICES.

       Section 3126 of title 18, United States Code, is amended by 
     striking the period and inserting ``, which report shall 
     include information concerning--
       ``(1) the period of interceptions authorized by the order, 
     and the number and duration of any extensions of the order;
       ``(2) the offense specified in the order or application, or 
     extension of an order;
       ``(3) the number of investigations involved;
       ``(4) the number and nature of the facilities affected; and
       ``(5) the identity, including district, of the applying 
     investigative or law enforcement agency making the 
     application and the person authorizing the order.''.

  Mr. LEAHY. Mr. President, I am pleased that the Senate is today 
considering S. 1769, which I introduced with Chairman Hatch on October 
22, 1999. This bill will continue and enhance the current reporting 
requirements for the Administrative Office of the Courts and the 
Attorney General on the eavesdropping and surveillance activities of 
our federal and state law enforcement agencies.
  For many years, the Administrative Office (AO) of the Courts has 
complied with the statutory requirement, in 18 U.S.C. Sec.  2519(3), to 
report to Congress annually the number and nature of federal and state 
applications for orders authorizing or approving the interception of 
wire, oral or electronic communications. By letter dated September 3, 
1999, the AO advised that it would no longer submit this report because 
``as of December 21, 1999, the report will no longer be required 
pursuant to the Federal Reports Elimination and Sunset Act of 1995.'' I 
commend the AO for alerting Congress that their responsibility for the 
wiretap reports would lapse at the end of this year, and for doing so 
in time for Congress to take action.
  The AO has done an excellent job of preparing the wiretap reports. We 
need to continue the AO's objective work in a consistent manner. If 
another agency took over this important task at this juncture and the 
numbers came out in a different format, it would immediately generate 
questions and concerns over the legitimacy and accuracy of the contents 
of that report.
  In addition, it would create difficulties in comparing statistics 
from prior years going back to 1969 and complicate the job of 
congressional oversight. Furthermore, transferring this reporting duty 
to another agency might create delays in issuance of the report since 
no other agency has the methodology in place. Finally, federal, state 
and local agencies are well accustomed to the reporting methodology 
developed by the AO. Notifying all these agencies that the reporting 
standards and agency have changed would inevitably create more 
confusion and more expense as law enforcement agencies across the 
country are forced to learn a new system and develop a liaison with a 
new agency.
  The system in place now has worked well and should be continued. We 
know how quickly law enforcement may be subjected to criticism over 
their use of these surreptitious surveillance tools

[[Page S14223]]

and we should avoid aggravating these sensitivities by changing the 
reporting agency.
  The bill would update the reporting requirements currently in place 
with one additional reporting requirement. Specifically, the bill would 
require the wiretap reports prepared beginning in calendar year 2000 to 
include information on the number of orders in which encryption was 
encountered and whether such encryption prevented law enforcement from 
obtaining the plain text of communications intercepted pursuant to such 
order.
  Encryption technology is critical to protect sensitive computer and 
online information. Yet, the same technology poses challenges to law 
enforcement when it is exploited by criminals to hide evidence or the 
fruits of criminal activities. A report by the U.S. Working Group on 
Organized Crime titled, ``Encryption and Evolving Technologies: Tools 
of Organized Crime and Terrorism,'' released in 1997, collected 
anecdotal case studies on the use of encryption in furtherance of 
criminal activities in order to estimate the future impact of 
encryption on law enforcement. The report noted the need for ``an 
ongoing study of the effect of encryption and other information 
technologies on investigations, prosecutions, and intelligence 
operations''. As part of this study, ``a database of case information 
from federal and local law enforcement and intelligence agencies should 
be established and maintained.'' Adding a requirement that reports be 
furnished on the number of occasions when encryption is encountered by 
law enforcement is a far more reliable basis than anecdotal evidence on 
which to assess law enforcement needs and make sensible policy in this 
area.
  The final section of this bill would codify the information that the 
Attorney General already provides on pen register and trap and trace 
device orders, and require further information on where such orders are 
issued and the types of facilities--telephone, computer, pager or other 
device--to which the order relates. Under the Electronic Communications 
Privacy Act (``ECPA'') of 1986, P.L. 99-508, codified at 18 U.S.C. 
Sec. 3126, the Attorney General of the United States is required to 
report annually to the Congress on the number of pen register orders 
and orders for trap and trace devices applied for by law enforcement 
agencies of the Department of Justice. As the original sponsor of ECPA, 
I believed that adequate oversight of the surveillance activities of 
federal law enforcement could only be accomplished with reporting 
requirements such as the one included in this law.
  The reports furnished by the Attorney General on an annual basis 
compile information from five components of the Department of Justice: 
the Federal Bureau of Investigation, the Drug Enforcement 
Administration, the Immigration and Naturalization Service, the United 
States Marshals Service and the Office of the Inspector General. The 
report contains information on the number of original and extension 
orders made to the courts for authorization to use both pen register 
and trap and trace devices, information concerning the number of 
investigations involved, the offenses on which the applications were 
predicted and the number of people whose telephone facilities were 
affected.
  These specific categories of information are useful, and the bill we 
have introduced would direct the Attorney General to continue providing 
these specific categories of information. In addition, the bill would 
direct the Attorney General to include information on the identity, 
including the district, of the agency making the application and the 
person authorizing the order. In this way, the Congress and the public 
will be informed of those jurisdictions using this surveillance 
technique--information which is currently not included in the Attorney 
General's annual reports.
  The requirement for preparation of the wiretap reports will soon 
lapse so I am delighted to see the Senate take prompt action on this 
legislation to continue the requirement for submission of the wiretap 
reports and to update the reporting requirements for both the wiretap 
reports submitted by the AO and the pen register and trap and trace 
reports submitted by the Attorney General.
  Mr. DOMENICI. Mr. President, I ask unanimous consent that the 
committee amendments be agreed to, the bill be considered read for a 
third time and passed, the motion to reconsider be laid upon the table, 
and any statements relating to the bill be printed in the Record.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The committee amendments were agreed to.
  The bill (S. 1769), as amended, was read the third time and passed, 
as follows:

                                S. 1769

       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 ``Continued Reporting of 
     Intercepted Wire, Oral, and Electronic Communications Act''.

     SEC. 2. FINDINGS.

       Congress makes the following findings:
       (1) Section 2519(3) of title 18, United States Code, 
     requires the Director of the Administrative Office of the 
     United States Courts to transmit to Congress a full and 
     complete annual report concerning the number of applications 
     for orders authorizing or approving the interception of wire, 
     oral, or electronic communications. This report is required 
     to include information specified in section 2519(3).
       (2) The Federal Reports Elimination and Sunset Act of 1995 
     provides for the termination of certain laws requiring 
     submittal to Congress of annual, semiannual, and regular 
     periodic reports as of December 21, 1999, 4 years from the 
     effective date of that Act.
       (3) Due to the Federal Reports Elimination Act and Sunset 
     Act of 1995, the Administrative Office of United States 
     Courts is not required to submit the annual report described 
     in section 2519(3) of title 18, United States Code, as of 
     December 21, 1999.

     SEC. 3. CONTINUED REPORTING REQUIREMENTS.

       (a) Continued Reporting Requirements.--Section 2519 of 
     title 18, United States Code, is amended by adding at the end 
     the following:
       ``(4) The reports required to be filed by subsection (3) 
     are exempted from the termination provisions of section 
     3003(a) of the Federal Reports Elimination and Sunset Act of 
     1995 (Public Law 104-66).''.
       (b) Exemption.--Section 3003(d) of the Federal Reports 
     Elimination and Sunset Act of 1995 (Public Law 104-66) is 
     amended--
       (1) in paragraph (31), by striking ``or'' at the end;
       (2) in paragraph (32), by striking the period and inserting 
     ``; or''; and
       (3) by adding at the end the following:
       ``(33) section 2519(3) of title 18, United States Code.''.

     SEC. 4. ENCRYPTION REPORTING REQUIREMENTS.

       (a) Section 2519(2)(b) of title 18, United States Code, is 
     amended by striking ``and (iv)'' and inserting ``(iv) the 
     number of orders in which encryption was encountered and 
     whether such encryption prevented law enforcement from 
     obtaining the plain text of communications intercepted 
     pursuant to such order, and (v)''.
       (b) The encryption reporting requirement in subsection (a) 
     shall be effective for the report transmitted by the Director 
     of the Administrative Office of the Courts for calendar year 
     2000 and in subsequent reports.

     SEC. 5. REPORTS CONCERNING PEN REGISTERS AND TRAP AND TRACE 
                   DEVICES.

       Section 3126 of title 18, United States Code, is amended by 
     striking the period and inserting ``, which report shall 
     include information concerning--
       ``(1) the period of interceptions authorized by the order, 
     and the number and duration of any extensions of the order;
       ``(2) the offense specified in the order or application, or 
     extension of an order;
       ``(3) the number of investigations involved;
       ``(4) the number and nature of the facilities affected; and
       ``(5) the identity, including district, of the applying 
     investigative or law enforcement agency making the 
     application and the person authorizing the order.''.

                          ____________________