Congressional Record, Volume 150 Issue 106 (Thursday, September 9, 2004)

[Congressional Record Volume 150, Number 106 (Thursday, September 9, 2004)]
[Senate]
[Pages S9033-S9037]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS

By Mr. LUGAR (for himself, Mr. Biden, Mr. Alexander, Mr. Hagel,
Mr. Leahy, Mr. DeWine, and Mr. Coleman):
S. 2781. A bill to express the sense of Congress regarding the
conflict in Darfur, Sudan, to provide assistance for the crisis in
Darfur and for comprehensive peace in Sudan, and for other purposes; to
the Committee on Foreign Relations.
Mr. LUGAR. Mr. President, I ask unanimous consent that the text of
the bill be printed in the Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:

S. 2781

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 ``Comprehensive Peace in Sudan
Act of 2004''.

SEC. 2. DEFINITIONS.

In this Act:
(1) Appropriate congressional committees.--The term
``appropriate congressional committees'' means the Committee
on Foreign Relations of the Senate and the Committee on
International Relations of the House of Representatives.
(2) JEM.--The term ``JEM'' means the Justice and Equality
Movement.
(3) SLA.--The term ``SLA'' means the Sudanese Liberation
Army.
(4) SPLM.--The term ``SPLM'' means the Sudan People's
Liberation Movement.

SEC. 3. FINDINGS.

Congress makes the following findings:
(1) A comprehensive peace agreement for Sudan, as
envisioned in the Sudan Peace Act (50 U.S.C. 1701 note), and
in the Machakos Protocol of 2002, is in grave jeopardy.
(2) Since 1989, the Government of Sudan has repeatedly
engaged in and sponsored orchestrated campaigns of attacking
and dislocating targeted civilian populations, disrupting
their ability to sustain themselves, and subsequently
restricting assistance to those displaced in a coordinated
policy of ethnic cleansing and Arabization that is most
recently evident in the Darfur region of Sudan.
(3) In response to 2 decades of civil conflict in Sudan,
the United States has helped to establish an internationally
supported peace process to promote a negotiated settlement to
the war that has resulted in a framework peace agreement, the
Nairobi Declaration on the Final Phase of Peace in the Sudan
signed June 5, 2004.
(4) At the same time that the Government of Sudan was
negotiating for a final countrywide peace, enumerated in the
Nairobi Declaration on the Final Phase of Peace in the Sudan,
it refused to engage in any discussion with regard to its
ongoing campaign of ethnic cleansing in the region of Darfur.
(5) It was not until the international community expressed
its outrage, through high level visits by Secretary of State
Colin Powell and others, and through United Nations Security
Council Resolution 1556 of July 30, 2004, that the Government
of Sudan agreed to engage in talks to bring peace to the
Darfur region.
(6) According to the Government of the United States and
United Nations officials, the Government of Sudan has engaged
in an orchestrated campaign, with the assistance of its Arab
Sudanese proxy militia, the

[[Page S9034]]

Janjaweed, to remove a significant part of the ethnically
African population from North Darfur, West Darfur, and South
Darfur, Sudan.
(7) The United Nations High Commissioner for Human Rights
identified ``massive human rights violations in Darfur
perpetrated by the Government of Sudan and the Janjaweed,
which may constitute war crimes and/or crimes against
humanity''.
(8) Evidence collected by international observers in the
Darfur region between January 2003 and September 2004
indicate a coordinated effort to target African Sudanese
civilians in a scorched earth policy, from both air and
ground, that has destroyed African Sudanese villages, killing
and driving away its people, while Arab Sudanese villages
have been left unscathed.
(9) As a result of this coordinated campaign, which
Congress has declared to be genocide, reports indicate tens
of thousands of African Sudanese civilians killed, the
systematic rape of thousands of women and girls, the
destruction of hundreds of Fur, Masalit, and Zaghawa villages
and other ethnically African populations, including the
poisoning of their wells and the plunder of crops and cattle
upon which they sustain themselves.
(10) According to the United Nations High Commissioner for
Refugees, 1,400,000 people have been displaced in the Darfur
region of Sudan, of whom over 200,000 have been forced to
flee to Chad as refugees.
(11) The Government of Sudan conducted aerial attack
missions and deadly raids across the international border
between Sudan and Chad in an illegal effort to pursue
Sudanese civilians seeking refuge in Chad.
(12) In addition to the thousands of violent deaths
directly caused by ongoing Sudanese military and government
sponsored Janjaweed attacks in the Darfur region, the
Government of Sudan has restricted humanitarian and human
rights workers' access to the Darfur area, primarily through
bureaucratic and administrative obstruction in an attempt to
inflict the most devastating harm on those displaced from
their villages and homes without any means of sustenance or
shelter.
(13) The Government of Sudan's continued support for the
Janjaweed and their obstruction of the delivery of food,
shelter, and medical care to the Darfur region--
(A) is estimated to be causing 500 deaths each day; and
(B) is projected to escalate to 2,400 deaths each day by
December 2004, so that even a best-case scenario will likely
result in the death of more than 320,000 people between April
1, 2004 and December 31, 2004.
(14) The Government of Chad served an important role in
facilitating the Darfur humanitarian cease-fire (the
N'Djamena Agreement dated April 8, 2004) for the Darfur
region between the Government of Sudan and the 2 opposition
rebel groups in Darfur (the JEM and the SLA) although both
sides have violated it repeatedly.
(15) The people of Chad have responded courageously to the
plight of over 200,000 Darfur refugees even though such
assistance has adversely affected their own means of
livelihood.
(16) The cooperation and inclusion of all Sudanese is
essential to the establishment of peace and security
throughout all of Sudan.
(17) The African Union has demonstrated renewed vigor in
regional affairs through its willingness to respond to the
crisis in Darfur, by convening talks between the parties and
deploying several hundred monitors and security forces to the
region, as well as by recognizing the need for a far larger
force with a broader mandate.
(18) Despite the threat of international action expressed
through United Nations Security Council Resolution 1556 of
July 30, 2004, the Government of Sudan continues to obstruct
and prevent efforts to reverse the catastrophic consequences
that loom over Darfur.

SEC. 4. SENSE OF CONGRESS REGARDING THE CONFLICT IN DARFUR,
SUDAN.

(a) Sudan Peace Act.--It is the sense of Congress that the
Sudan Peace Act (50 U.S.C. 1701 note) remains relevant and
should be extended to include the Darfur region of Sudan.
(b) Actions To Address the Conflict.--It is the sense of
Congress that--
(1) a legitimate countrywide peace in Sudan will only be
possible if the principles of the Machakos Protocol of 2002
and the Nairobi Declaration on the Final Phase of Peace in
the Sudan signed June 5, 2004, negotiated with the SPLM,
apply to all of Sudan and to all of the people of Sudan,
including the Darfur region;
(2) the parties to the N'Djamena Agreement (the Government
of Sudan, the SLA, and the JEM) must meet their obligations
under that Agreement to allow safe and immediate access of
all humanitarian assistance throughout the Darfur region and
must expedite the conclusion of a political agreement to end
the conflict in Darfur;
(3) the United States should continue to provide
humanitarian assistance to the areas of Sudan to which the
United States has access and, at the same time, develop a
plan similar to that described in section 10 of the Sudan
Peace Act to provide assistance to the areas of Sudan to
which United States access has been obstructed or denied;
(4) the international community, including African, Arab,
and Muslim nations, should immediately provide resources
necessary to save the lives of hundreds of thousands of
individuals at risk as a result of the Darfur crisis;
(5) the United States Ambassador-at-Large for War Crimes
should travel to Chad and the Darfur region immediately to
investigate war crimes and crimes against humanity to develop
a more accurate portrayal of the situation on the ground and
to better inform the report required in section 11(b) of the
Sudan Peace Act;
(6) the United States and the international community
should--
(A) provide all necessary means to assist in the immediate
deployment of a contingent of 4,200 African Union forces as
recommended by the United Nations and to sustain such forces;
and
(B) work to increase the authorized level and expand the
mandate of such forces commensurate with the gravity and
scope of the problem in a region the size of France;
(7) the President should use all means to facilitate a
comprehensive solution to the conflict in Sudan, including by
directing the United States Permanent Representative to the
United Nations to pursue a resolution of the United Nations
Security Council that--
(A) condemns the actions of the Government of Sudan in
engaging in an orchestrated campaign of ethnic cleansing in
Darfur;
(B) calls on the Government of Sudan to cease support of
ethnic cleansing and the killing of innocent civilians,
disarm the Janjaweed militias, prevent such militias from
harassing and killing civilians, and ensure immediate access
for all humanitarian assistance to all areas of Darfur;
(C) calls on all parties to the conflict in the Darfur
region to permit unimpeded delivery of humanitarian
assistance directly to Darfur, in particular to allow such
assistance to cross directly from countries that border
Sudan;
(D) calls on the Government of Sudan to provide all
assistance possible, including release of its strategic food
reserves, to respond to the Darfur crisis;
(E) calls on the international community, particularly
those countries with strong economic ties to Sudan, to
expedite the provision of humanitarian assistance to Darfur;
(F) authorizes the African Union Mission in Sudan (AUMIS)
now deploying to the Darfur region of Sudan, and calls for
the expansion of such force, and extension of the force's
mandate to include protection of civilians;
(G) establishes an international commission of inquiry to
examine the actions and accountability of those responsible
for war crimes and crimes against humanity in the Darfur
region; and
(H) confirms the right of all displaced Sudanese to return
to their villages under safe and secure conditions;
(8) an international commission of inquiry should be
established to conduct an investigation of atrocities in the
Darfur region and to preserve evidence of atrocities for use
in the prosecution of those responsible for war crimes and
crimes against humanity;
(9) sanctions should be imposed on the assets and
activities of those Sudanese Government officials and other
individuals that are involved in carrying out the policy of
ethnic cleansing in the Darfur region;
(10) the Government of the United States should not
normalize relations with Sudan, including through the lifting
of any sanctions, until the Government of Sudan agrees to,
and takes demonstrable steps to implement, peace agreements
for all areas of Sudan, including Darfur; and
(11) Presidential Proclamation 6958 issued November 22,
1996, which suspends entry into the United States of members
of the Government of Sudan, officials of that Government, and
members of the Sudanese Armed Forces, should continue to
remain in effect and be strictly enforced.

SEC. 5. AMENDMENTS TO THE SUDAN PEACE ACT.

(a) Assistance for the Crisis in Darfur and for
Comprehensive Peace in Sudan.--
(1) In general.--The Sudan Peace Act (50 U.S.C. 1701 note)
is amended by adding at the end the following new section:

``SEC. 12. ASSISTANCE FOR THE CRISIS IN DARFUR AND FOR
COMPREHENSIVE PEACE IN SUDAN.

``(a) Authorization of Appropriations.--
``(1) Humanitarian assistance.--There is authorized to be
appropriated to the President for assistance to address the
humanitarian and human rights crisis in the Darfur region and
its impact on eastern Chad, pursuant to the authority in
section 491 of the Foreign Assistance Act of 1961 (22 U.S.C.
2292), $200,000,000 for fiscal year 2005, in addition to any
other funds otherwise available for such purpose.
``(2) Additional assistance.--Subject to subsections (b)
and (c), there is authorized to be appropriated to the
President, for assistance for Sudan upon the conclusion of a
North-South peace agreement, $100,000,000 for fiscal year
2005 in addition to any other funds otherwise available for
such purpose.
``(3) Availability.--Amounts appropriated pursuant to the
authorization of appropriations under paragraph (1) or (2)
are authorized to remain available until expended,
notwithstanding any other provision of law other than the
provisions in this section.
``(b) Requirement for Certification.--The assistance
authorized under subsection (a)(2) may be provided to the
Government of Sudan only if the President submits the
certification described in subsection (c).
``(c) Certification for the Government of Sudan.--The
certification referred to in

[[Page S9035]]

subsection (b) is a certification submitted by the President
to the appropriate congressional committees that the
Government of Sudan has taken demonstrable steps to--
``(1) ensure that the armed forces of Sudan and any
associated militias are not attacking civilians or
obstructing human rights monitors or the provision of
humanitarian assistance;
``(2) demobilize and disarm militias supported or created
by the Government of Sudan;
``(3) allow full and unfettered access for the provision of
humanitarian assistance to all regions of Sudan, including
Darfur; and
``(4) cooperate fully with the African Union, the United
Nations, and all other observer, monitoring, and protection
missions mandated to operate in Sudan.
``(d) Suspension of Assistance.--If, on a date after the
President submits the certification described in subsection
(c), the President determines that the Government of Sudan--
``(1) has ceased taking the actions described in such
subsection, the President shall immediately suspend the
provision of any assistance to such Government until the date
on which the President certifies that the Government of Sudan
has resumed taking such actions; or
``(2) has not shown good faith in working to establish
sustainable peace in all parts of Sudan, including but not
limited to the Darfur region, the President may suspend all
assistance until such time as these expectations are met.''.
(b) Reporting Requirement.--Section 8 of the Sudan Peace
Act (50 U.S.C. 1701 note) is amended in the first sentence by
striking ``Sudan.'' and inserting ``Sudan, including the
conflict in the Darfur region.''.

SEC. 6. OTHER RESTRICTIONS.

(a) Blocking of Assets.--On the date that is 120 days after
the date of enactment of this Act, if the President has not
submitted the certification described in subsection (c) of
section 12 of the Sudan Peace Act, as added by section 5, the
President shall, consistent with the authorities granted in
the International Emergency Economic Powers Act (50 U.S.C.
1701 et seq.), block the assets of appropriate senior
officials of the Government of Sudan.
(b) Continuation of Restrictions.--Restrictions against the
Government of Sudan that were imposed pursuant to title III
and sections 508, 512, and 527 of the Foreign Operations,
Export Financing, and Related Programs Appropriations Act,
2004 (Division D of Public Law 108-199; 118 Stat. 143) shall
remain in place until the President makes the certification
described in subsection (c) of section 12 of the Sudan Peace
Act, as added by section 5.

SEC. 7. REQUIREMENT FOR REPORT.

(a) Requirement.--Not later than 60 days after the date of
enactment of this Act, the President shall submit to the
appropriate congressional committees a report on the planned
United States response to a comprehensive peace agreement for
Sudan.
(b) Content.--The report required by subsection (a) shall
include--
(1) a description of the planned United States response to
a modified peace process between the Government of Sudan and
the SPLM that would account for the implementation of a peace
in all regions of Sudan, in particular Darfur; and
(2) a contingency plan for extraordinary humanitarian
assistance should the Government of Sudan continue to
obstruct or delay the international humanitarian response to
the crisis in Darfur.
(c) Form of Report.--The report required by subsection (a)
may be submitted in classified form.

SEC. 8. TECHNICAL CORRECTION.

Section 12 of the International Organizations Immunities
Act (22 U.S.C. 288f-2) is amended by striking ``Organization
of African Unity'' and inserting ``African Union''.

Mr. BIDEN. Mr. President, today Senator Lugar and I, along with
several other colleagues, introduce a bill that is designed to increase
pressure on the government of Sudan to stop its campaign of genocide in
Darfur.
There is now--at least in the U.S. Government--no dispute that
genocide has occurred in Darfur. The Congress so stated by resolution
in July. Today, in testimony to the Committee on Foreign Relations, the
Secretary of State affirmed that ``genocide has been committed in
Darfur'' and that the Government of Sudan and the janjaweed militia
bear responsibility for it.
The situation in Darfur is dire. As many as 50,000 black Africans
have been killed. Sexual violence is routinely used as a weapon by the
Sudanese-sponsored janjaweed militia. Over a million people are
displaced from their homes. And, because the Sudanese government
refused to allow unrestricted access to war-affected populations at the
onset of this crisis--a crisis of the government's making--hundreds of
thousands of people are likely to die by the end of the year.
Unless we act quickly and decisively to stop the violence in Darfur,
history is going to judge us harshly for our lack of action. It may
already be too late to avoid the condemnation of future generations.
On July 30, following UN Secretary General Kofi Annan's visit to
Sudan, the United Nations Security Council passed resolution 1556. The
resolution was, in my view, inadequate. It provided an arms embargo and
travel ban against the janjaweed, but did little to pressure the very
government sponsoring the militia. The resolution provided only a vague
threat to apply the sanctions to the government of Sudan if it failed
to take certain steps, including ending all restrictions on
humanitarian workers, investigating and punishing human rights abuses,
immediately beginning disarmament of the janjaweed, and resuming talks
with the rebels. Sudan was given 30 days to comply.
Sudan has not satisfied the conditions for the resolution. On
September 2, the Secretary General's Special Representative to Sudan
reported to the Security Council that the government of Sudan has not
taken any steps to disarm the janjaweed or improve security of
internally displaced persons.
The administration's response was to propose a new draft UN
resolution yesterday. Unfortunately, this resolution only delays a
decision about whether or not to impose sanctions for another 30 days.
It does not label what is happening in Khartoum as genocide, although
it does call upon the Secretary General to establish a commission of
inquiry into violations of international humanitarian law and human
rights. It does not call for a chapter 7 peacekeeping mission in
Darfur, and it does not call for an expansion of the mandate of the
African Union Mission in Sudan.
I believe the Congress must do its part to pressure the government of
Sudan, and to provide additional tools to the Administration.
On July 21, Senator DeWine and I introduced S. 2705, which was aimed
at pressuring the government of Sudan to fulfill commitments it made to
the UN. On July 22, the chairman of the Committee on Foreign Relations,
Senator Lugar, also introduced a bill on Sudan, S. 2720. It had the
same objective, though its provisions were different from the Biden-
DeWine bill in several respects.
Over the recess, the chairman and I worked together to develop a
joint bill. I believe it is important that the committee speak with one
voice on the genocide in Darfur. I also recognize that this late in the
congressional session, most legislation will require unanimous consent
to pass. So I hope our joint effort will prove successful.
The bill we introduce today authorizes $200 million in humanitarian
assistance for Darfur. It holds out the promise of $100 million in
assistance for Sudan in connection with a peace agreement between the
government and rebels in the south, but only if the President certifies
that Khartoum takes demonstrable steps that it has stopped attacking
civilians, disarmed the janjaweed and allowed unfettered access to
Darfur for humanitarian workers. If the President cannot make this
certification within 120 days, the bill requires that the President
block the assets of senior members of the government of Khartoum.
The bill does not go as far as I would have liked. The Biden-DeWine
bill provided additional resources to implement a north-south peace
agreement as an incentive to the Khartoum government, and it provided
for additional sanctions, including those sanctions already set forth
in the Sudan Peace Act. But I have agreed to join with the chairman to
take this intermediate action.
I want to make clear that this bill should only be considered a first
step. If the tragedy in Darfur continues, and if Khartoum continues to
ignore the demands of the international community that it cease the
violence in Darfur, I intend to introduce stronger legislation next
year.
Today the Secretary of State spoke clearly, for all the world to
hear--genocide has occurred in western Sudan. Hundreds of thousands of
lives are on the line. We cannot say we were not warned. We cannot say
we did not know. We cannot say that we lacked the means to respond. We
are obligated, by the Genocide Convention and our collective
conscience, to act to assist the people suffering and to prevent
further violence. Immediate support for the African Union is necessary,
but

[[Page S9036]]

not sufficient to respond to the situation in Darfur. In addition, we
need to press for a UN resolution that authorizes a multilateral force
with a mandate to protect civilians. We also should look outside Africa
for military and logistical assistance, rather than relying solely on
the African Union.
What is occurring in Darfur is a travesty. Our response has not been
commensurate with the suffering there. It is imperative that the United
States and the international community increase assistance to the
displaced, and increase pressure on the government of Sudan to take
action.
______

By Mr. FEINGOLD:
S. 2783. A bill to clarify conditions for the interceptions of
computer trespass communications under the USA-PATRIOT Act; to the
Committee on the Judiciary.
Mr. FEINGOLD. Mr. President, I am pleased to introduce the Computer
Trespass Clarification Act of 2004, which would amend and clarify
section 217 of the USA-PATRIOT Act. Section 217 addresses the
interception of computer trespass communications. This bill would
modify existing law to more accurately reflect the intent of the
provision, and also protect against invasions of privacy.
Section 217 was designed to permit law enforcement to assist computer
owners who are subject to denial of service attacks or other episodes
of hacking. The original Department of Justice draft of the bill that
later became the PATRIOT Act included this provision. A section-by-
section analysis provided by the Department on September 19, 2001,
stated the following:
Current law may not allow victims of computer trespassing
to request law enforcement assistance in monitoring
unauthorized attacks as they occur. Because service providers
often lack the expertise, equipment, or financial resources
required to monitor attacks themselves as permitted under
current law, they often have no way to exercise their rights
to protect themselves from unauthorized attackers. Moreover,
such attackers can target critical infrastructures and engage
in cyberterrorism. To correct this problem, and help to
protect national security, the proposed amendments to the
wiretap statute would allow victims of computer attacks to
authorize persons ``acting under color of law'' to monitor
trespassers on their computer systems in a narrow class of
cases.

I strongly supported the goal of giving computer system owners the
ability to call in law enforcement to help defend themselves against
hacking. Including such a provision in the PATRIOT Act made a lot of
sense. Unfortunately, the drafters of the provision made it much
broader than necessary, and refused to amend it at the time we debated
the bill in 2001. As a result, the law now gives the government the
authority to intercept communications by people using computers owned
by others as long as they have allegedly engaged in some unauthorized
activity on the computer, and the owner gives permission for the
computer to be monitored.
Only people who have a ``contractual relationship'' with the owner
allowing the use of a computer are exempt from the definition of a
computer trespasser under section 217 of the PATRIOT Act. Many people--
for example, college students, patrons of libraries, Internet cafes or
airport business lounges, and guests at hotels--use computers owned by
others with permission, but without a contractual relationship. They
could end up being the subject of government snooping if the owner of
the computer gives permission to law enforcement.
My bill would clarify that someone who has been given permission to
use a computer by the owner or operator of that computer is not a
computer trespasser. It would bring the existing computer trespass
provision in line with the purpose of section 217 as expressed in the
Department of Justice's initial explanation of the provision. Section
217 was intended to target only a narrow class of people: unauthorized
cyberhackers. It was not intended to give the government the
opportunity to engage in widespread surveillance of computer users
without a warrant.
We don't know, of course, whether such surveillance is taking place.
Unless criminal charges are brought against someone as a result of such
surveillance, there would never be any notice at all that the
surveillance has taken place. The computer owner authorizes the
surveillance, and the FBI carries it out. There is no warrant, no court
proceeding, no opportunity even for the subject of the surveillance to
challenge the assertion of the computer owner that some unauthorized
use of the computer has occurred.
The Computer Trespass Clarification Act would modify the computer
trespass provision to protect against abuse, while still maintaining
its usefulness in cases of denial of service attacks and other forms of
hacking.
First, it would require that the owner or operator of the protected
computer authorizing the interception has been subject to
``communications activity that threatens the integrity or operation of
such computer.'' In other words, the owner has to be the target of some
kind of hacking.
Second, the bill would clarify that to be excluded from the
definition of computer trespasser, a person who has permission to use a
computer does not need to have a contractual relationship granting that
permission.
Third, the bill limits the length of warrant-less surveillance to 96
hours. This is twice as long as is allowed for an emergency wiretap.
With four days of surveillance, it should not be difficult for the
government to gather sufficient evidence of wrongdoing to obtain a
warrant if continued surveillance is necessary.
In addition, the bill would require the Attorney General to annually
report on the use of Section 217 to the Senate and House Judiciary
Committees. Section 217 is one of the provisions that is subject to the
sunset provision in the PATRIOT Act and will expire at the end of 2005.
We in the Congress need to do more oversight of the use of this and
other provisions of the PATRIOT Act in order to evaluate their
effectiveness.
The computer trespass provision now in the law as a result of section
217 of the PATRIOT Act leaves open the possibility for significant and
unnecessary invasions of privacy. The reasonable and modest changes to
the provision contained in this bill preserve the usefulness of the
provision for investigations of cyberhacking, but reduce the
possibility of abuse. We must continually seek to balance the need for
effective tools to fight crime and terrorism and the civil liberties of
our citizens. The Computer Trespass Clarification Act strikes the right
balance and I urge my colleagues to support it.
I ask unanimous consent that the text of the bill be printed in the
Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:

S. 2783

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 ``Computer Trespass
Clarification Act of 2004''.

SEC. 2. AMENDMENTS TO TITLE 18.

(a) Definitions.--Section 2510(21)(B) of title 18, United
States Code, is amended by--
(1) inserting ``or other'' after ``contractual''; and
(2) striking for ``for access'' and inserting ``permitting
access''.
(b) Interception and Disclosure.--Section 2511(2)(i) of
title 18, United States Code, is amended--
(1) in clause (I), by inserting after ``the owner or
operator of the protected computer'' the following: ``is
attempting to respond to communications activity that
threatens the integrity or operation of such computer and
requests assistance to protect rights and property of the
owner or operator, and''; and
(2) in clause (IV), by inserting after ``interception'' the
following: ``ceases as soon as the communications sought are
obtained or after 96 hours, whichever is earlier, unless an
interception order is obtained under this chapter, and''.
(c) Report.--The Attorney General shall annually report to
the Committees on the Judiciary of the Senate and the House
of Representatives on the use of section 2511 of title 18,
United States Code, relating to computer trespass provisions
as amended by subsection (b).
______

By Mr. DODD (for himself and Mr. Lieberman):
S. 2785. A bill to amend title 4 of the United States Code to
prohibit the double taxation of telecommuters and others who work at
home; to the Committee on Finance.
Mr. DODD. Mr. President, I am pleased to rise today, together with my
colleague Senator Lieberman, to introduce The Telecommuter Tax Fairness
Act of 2004.
The Telecommuter Tax Fairness Act of 2004 will put an end to an
outdated

[[Page S9037]]

legal doctrine that unfairly penalizes thousands of workers in
Connecticut and in other States throughout the country whose only
offense is that they sometimes work from home.
Technology has changed the way business is conducted in America. With
the use of cell phones, lap-top computers, email, the Internet, mobile
networking, and many other telecommunication advancements of the 21st
century, Americans have a greater flexibility in where they can work
without compromising productivity. Many citizens now choose to work
from home or alternative offices when their physical presence is not
necessary at their primary place of work.
Telecommuting provides enormous benefits for businesses, families,
and communities. It helps businesses lower costs and raise worker
productivity. It reduces congestion on our roads and rails, and in so
doing it lowers pollution. It helps workers better manage the demands
of work and family. And last but not least, it can mean lower income
taxes.
Yet, the many benefits to workers of telecommuting are today placed
in jeopardy because of current law in New York. Today, New York State
requires that workers pay income tax on income even if it is not earned
in the State through their ``convenience of the employer'' rule. While
there are several States that have the ``convenience of the employer''
rule, no other State applies it with the same rigor as New York.
New York's ``convenience of the employer'' rule requires that by
working for a New York employer, all income earned from that employer
must be declared in New York so long as the worker ``could'' perform
his or her duties in New York. A worker for a New York employer who
works part-time from home in Connecticut or another State is still
subject to taxation by New York on 100 percent of his or her income. At
the same time, the work done by that worker in a State outside New York
is subject to taxation by that State.
This unfairly subjects many workers who telecommute from their homes
or from satellite offices outside of New York to a double tax on that
part of the income earned from home. According to Connecticut's
Attorney General, thousands of Connecticut residents alone are affected
by this unfair double taxation.
This potential for double taxation is not only unfair, but it is an
incentive for workers not to telecommute, when what we should be doing
is providing an incentive to encourage telecommuting.
Legislation is needed to protect these honest workers who deserve
fair and equitable treatment under the law. The Telecommuter Tax
Fairness Act of 2004 does this specifically by preventing a state from
engaging in the current fiction of deeming a nonresident to be in the
taxing State when the nonresident is actually working in another State.
In doing so, it will eliminate the possibility that citizens will be
double-taxed when telecommuting.
Establishing a ``physical presence'' test--as this legislation would
do--is the most logical basis for determining tax status. If a worker
is in a State, and taking advantage of that State's infrastructure, the
worker should pay taxes in that State.
Some suggest that the double-taxation quandary can easily be fixed by
having other States provide a tax credit to those telecommuters.
However, why should Connecticut, or any other State, be required to
allow a credit on income actually earned in the State? If a worker is
working in Connecticut, he or she is benefiting from a range of
services paid for and maintained by Connecticut including roads, water,
police, fire protection, and communications services. It's only fair
that Connecticut ask that worker to help support the services that he
or she uses.
This is not just an issue which deals with a small group of citizens
from one small State. Rather, this is an issue which affects workers
all over the country. It will only grow more pressing as people and
businesses continue to seek to take advantage of new technologies that
affect the way we live and work.
I hope our colleagues will favorably consider this legislation.
I ask unanimous consent that the text of the bill be printed in the
Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:

S. 2785

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 ``Telecommuter Tax Fairness
Act of 2004''.

SEC. 2. PROHIBITION ON DOUBLE TAXATION OF TELECOMMUTERS.

(a) In General.--Chapter 4 of title 4, United States Code,
is amended by adding at the end the following new section:

``Sec. 127. Prohibition on double taxation of telecommuters
and others who work at home

``(a) Physical Presence Required.--
``(1) In general.--In applying its income tax laws to the
salary of a nonresident individual, a State may only deem
such nonresident individual to be present in or working in
such State for any period of time if such nonresident
individual is physically present in such State for such
period and such State may not impose nonresident income taxes
on such salary with respect to any period of time when such
nonresident individual is physically present in another
State.
``(2) Determination of physical presence.--For purposes of
determining physical presence, no State may deem a
nonresident individual to be present in or working in such
State on the grounds that such nonresident individual is
present at or working at home for the nonresident
individual's convenience.
``(b) Definitions.--As used in this section--
``(1) State.--The term `State' includes any political
subdivision of a State, the District of Columbia, and the
possessions of the United States.
``(2) Income tax.--The term `income tax' has the meaning
given such term by section 110(c).
``(3) Income tax laws.--The term `income tax laws' includes
any statutes, regulations, administrative practices,
administrative interpretations, and judicial decisions.
``(4) Nonresident individual.--The term `nonresident
individual' means an individual who is not a resident of the
State applying its income tax laws to such individual.
``(5) Salary.--The term `salary' means the compensation,
wages, or other remuneration earned by an individual for
personal services performed as an employee or as an
independent contractor.
``(c) No Inference.--Nothing in this section shall be
construed as bearing on--
``(1) any tax laws other than income tax laws,
``(2) the taxation of corporations, partnerships, trusts,
estates, limited liability companies, or other entities,
organizations, or persons other than nonresident individuals
in their capacities as employees or independent contractors,
``(3) the taxation of individuals in their capacities as
shareholders, partners, trust and estate beneficiaries,
members or managers of limited liability companies, or in any
similar capacities, and
``(4) the income taxation of dividends, interest,
annuities, rents, royalties, or other forms of unearned
income.''.
(b) Clerical Amendment.--The table of sections of such
chapter 4 is amended by adding at the end the following new
item:

``127. Prohibition on double taxation of telecommuters and others who
work at home.''.

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