[Congressional Record Volume 151, Number 137 (Tuesday, October 25, 2005)]
[Senate]
[Page S11850]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




       ANTITRUST CRIMINAL INVESTIGATIVE IMPROVEMENTS ACT OF 2005

  Mr. FRIST. Mr. President, I ask unanimous consent that the Senate 
proceed to the immediate consideration of Calendar No. 250, S. 443.
  The PRESIDING OFFICER. The clerk will report the bill by title.
  The assistant legislative clerk read as follows:

       A bill (S. 443) to improve the investigation of criminal 
     antitrust offenses.

  There being no objection, the Senate proceeded to consider the bill.
  Mr. KOHL. Mr. President, I rise in support of the Antitrust 
Investigative Improvements Act of 2005, a bill I am cosponsoring with 
Senators DeWine and Leahy. This important measure will give the 
antitrust criminal enforcers at the Department of Justice a vital tool 
to investigate, detect, and prevent antitrust conspiracies. It will 
allow the Justice Department, upon a showing of probable cause to a 
Federal judge, authority to obtain a wiretap order for a limited time 
period to monitor communications between those suspected of engaging in 
illegal antitrust conspiracies.
  The current Federal criminal code lists over 150 predicate offenses 
for which the Justice Department may obtain a wiretap during the course 
of a criminal investigation. These offenses include basic white collar 
crimes such as mail fraud, wire fraud, and bank fraud. However, under 
current law, if the Government is investigating a criminal antitrust 
conspiracy, such as a scheme to fix prices to consumers, the Government 
cannot obtain a wiretap of the suspected conspirators. This inability 
to obtain wiretaps unquestionably severely handicaps the detection and 
prevention of such conspiracies. Only with the consent of a member of 
the conspiracy who has already agreed to cooperate with the Government 
may the Government surreptitiously record the meetings of the 
conspirators.
  There is no logical basis to exclude criminal antitrust violations 
from the list of predicate offenses for a wiretap. A criminal antitrust 
offense, such as price fixing, is every bit as serious--and causes 
every bit as much financial loss to its victims--as other white collar 
crimes, such as mail fraud or wire fraud. A price-fixing conspiracy 
raises prices to consumers, stealing hard earned dollars from citizens 
as surely as does a salesman promoting a bogus investment from a 
``boiler room'' or, indeed, a thief with a gun. Moreover, by its secret 
nature as an agreement among competitors, such a conspiracy is likely 
harder to detect than a fraudulent offering over the phone or through 
the mail. A properly issued wiretap, therefore, is even more necessary 
to detect criminal antitrust conspiracies than other white collar 
offenses.
  Detecting, preventing, and punishing criminal antitrust offenses are 
one of the principal missions of the Justice Department's Antitrust 
Division. Such offenses are punished severely with corporations facing 
fines of up to $100 million and individuals subject to jail terms of up 
to 10 years for each offense. Indeed, last year we passed legislation 
raising criminal penalties to these new levels. Yet, despite the damage 
these conspiracies do to the economy and individual consumers, our law 
enforcement agencies lack the one vital tool essential to uncover these 
secret conspiracies--the ability to obtain a wiretap to monitor 
communications between the suspected conspirators upon a showing of 
probable cause. This legislation will remedy this defect by granting to 
our law enforcement officials the necessary means to protect consumers 
and end illegal antitrust conspiracies.
  I urge my colleagues to join with me in supporting this legislation.
  Mr. LEAHY. Mr. President, earlier this year I was pleased to join the 
chairman and ranking member of the Judiciary Committee's Subcommittee 
on Antitrust, Competition Policy and Consumer Rights, Senators DeWine 
and Kohl, on the introduction of the ``Antitrust Criminal Investigative 
Improvements Act of 2005, ACIIA. Today, I am even more pleased to see 
the Senate pass this bill. This is important legislation, and I hope 
that it will receive the speedy vote in the House of Representatives 
that it deserves. Once the President signs it into law, the Department 
of Justice will finally have another vital tool to enforce antitrust 
laws--wiretap authority to investigate and prosecute criminal antitrust 
violations.
  America's antitrust laws play a critical role in protecting consumers 
and ensuring a fair and competitive marketplace for business. 
Congress's first antitrust law, the Sherman Antitrust Law, was enacted 
in 1890 to prohibit abusive monopolies and restraints of trade. Since 
that time, enforcement of the antitrust laws has benefited consumers 
through lower prices, greater variety, and higher quality products and 
services. But antitrust criminal offenses have been somewhat anomalous 
in the law, for they have not qualified for judicially approved 
wiretaps. The ACIIA will add criminal price fixing and bid rigging to 
the many crimes that are already ``predicate offenses'' for wiretap 
purposes. There are over 150 offenses that currently qualify for 
judicial approved wiretaps. These ``predicate offenses'' under Title 
III of the Omnibus Crime Control and Safe Streets Act, include crimes 
of lesser impact and significance than criminal antitrust violations. 
The ACIIA will ensure that the Department of Justice has the tools 
commensurate with the seriousness of the violations.
  Under current law, the Department of Justice must often rely on the 
FBI or other investigative agencies to obtain evidence. While the 
Justice Department may engage in court-authorized searches of business 
records, it may only monitor phone calls of informants or the 
conversations of consenting parties. In light of the seriousness of 
economic harms caused by violations of the Sherman Antitrust Act, the 
inability of the Department of Justice to obtain wiretaps when 
investigating criminal antitrust violations makes little sense. The 
evidence that can be acquired through wiretaps is precisely the type of 
evidence that is essential for the successful prosecution and 
prevention of serious antitrust violations. This bill equips the 
Department of Justice investigators and prosecutors the opportunity to 
zealously enforce the criminal antitrust laws of the United States.
  Mr. FRIST. Mr. President, I ask unanimous consent that the bill 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 bill (S. 443) was read the third time and passed, as follows:

                                 S. 443

       Be it enacted by the Senate and House of Representative of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Antitrust Criminal 
     Investigative Improvements Act of 2005''.

     SEC. 2. AMENDMENT OF PREDICATE CRIMES FOR AUTHORIZATION FOR 
                   INTERCEPTION OF WIRE, ORAL, AND ELECTRONIC 
                   COMMUNICATIONS.

       Section 2516(1) of title 18, United State Code, is 
     amended--
       (1) in subparagraph (q), by striking ``or'' after the 
     semicolon;
       (2) by redesignating subparagraph (r) as subparagraph (s); 
     and
       (3) by adding after subparagraph (q) the following:
       ``(r) any criminal violation of section 1 (relating to 
     illegal restraints of trade or commerce), 2 (relating to 
     illegal monopolizing of trade or commerce), or 3 (relating to 
     illegal restraints of trade or commerce in territories or the 
     District of Columbia) of the Sherman Act (15 U.S.C. 1, 2, 3); 
     or''.

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