[Congressional Record Volume 145, Number 165 (Friday, November 19, 1999)]
[Senate]
[Pages S14878-S14881]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




 EXEMPTIONS PURSUANT TO THE FEDERAL REPORTS ELIMINATION AND SUNSET ACT 
                                OF 1995

  Ms. COLLINS. Mr. President, I ask unanimous consent that the 
Governmental Affairs Committee be discharged from further consideration 
of H.R. 3111, and that the Senate proceed to its immediate 
consideration.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The clerk will report the bill by title.
  The legislative clerk read as follows:

       A bill (H.R. 3111) to exempt certain reports from automatic 
     elimination and sunset pursuant to the Federal Reports 
     Elimination and Sunset Act.

  There being no objection, the Senate proceeded to consider the bill.


                           Amendment No. 2786

(Purpose: To provide continued reporting of intercepted wire, oral, and 
                       electronic communications)

  Ms. COLLINS. Mr. President, Senator Leahy has an amendment at the 
desk.

[[Page S14879]]

  The PRESIDING OFFICER. The clerk will report.
  The legislative clerk read as follows:

       The Senator from Maine (Ms. Collins), for Mr. Leahy, 
     proposes an amendment numbered 2786.
       Add at the end the following:
       Sec. 2. (a) Short Title.--This Act may be cited as the 
     ``Continued Reporting of Intercepted Wire, Oral, and 
     Electronic Communications Act''.
       (b) 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 that annual report described 
     in section 219(3) of title 18, United States Code, as of 
     December 21, 1999.
       (c) Continued Reporting Requirements.--
       (1) 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).''.
       (2) Exemption.--Section 3003(d) of the Federal Reports 
     Elimination and Sunset Act of 1995 (Public Law 104-66) is 
     amended--
       (a) in paragraph (31), by striking ``or'' at the end;
       (b) in paragraph (32), by striking the period and inserting 
     ``; or''; and
       (c) by adding at the end the following:
       ``(33) section 2519(3) of title 18, United States Code.''.
       (d) Encryption Reporting Requirements.--
       (1) 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)''.
       (2) 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.
       (e) 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 for final passage S. 1769, as amended by the House. I 
introduced S. 1769 with Chairman Hatch on October 22, 1999 and it 
passed the Senate on November 5, 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. The House amendment is the text of H.R. 3111, a bill to 
exempt from automatic elimination and sunset certain reports submitted 
to Congress that are useful and helpful in informing the Congress and 
the public about the activities of federal agencies in the enforcement 
of federal law. I am also glad to support this amendment.
  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 we should avoid any 
disruptions. We know how quickly law enforcement may be subjected to 
criticism over their use of these surreptitious surveillance tools and 
we should avoid aggravating these sensitivities by changing the 
reporting agency and methodology on little to no notice. I appreciate, 
however, the AO's interest in transferring the wiretap reporting 
requirement to another entity. Any such transfer must be accomplished 
with a minimum of disruption to the collection and reporting of 
information and with complete assurances that any new entity is able to 
fulfill this important job as capably as the AO has done.
  S. 1769 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 S. 1769 would codify the information that the 
Attorney General already provides on pen register and trap and trace 
device orders, and would 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.

[[Page S14880]]

  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 S. 1769 
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 Congress 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. President, I am also pleased that the Senate is today considering 
H.R. 3111 to exempt from automatic elimination and sunset certain 
reports submitted to Congress that are useful and helpful in informing 
the Congress and the public about the activities of federal agencies in 
the enforcement of federal law. Senator Hatch and I offer as an 
amendment to H.R. 3111 the text of a bill S. 1769, which I introduced 
with Chairman Hatch on October 22, 1999 and which passed the Senate on 
November 5, 1999. This amendment 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 and we should avoid 
aggravating these sensitivities by changing the reporting agency.
  The amendment would update the reporting requirements currently in 
place with one additional reporting requirement. Specifically, the 
amendment 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 amendment 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 Office 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 
amendment would direct the Attorney General to continue providing these 
specific categories of information. In addition, the amendment 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.

[[Page S14881]]

  Ms. COLLINS. Mr. President, I ask unanimous consent that the 
amendment be agreed to, the bill, as amended, be read a third time and 
passed, the motion to reconsider be laid upon the table, and that any 
statements relating to the bill be printed in the Record.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment (No. 2786) was agreed to.
  The bill (H. R. 3111), as amended, was read the third time and 
passed.

                          ____________________