[Congressional Record Volume 152, Number 135 (Friday, December 8, 2006)]
[House]
[Pages H9192-H9197]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
PREVENTING HARASSMENT THROUGH OUTBOUND NUMBER ENFORCEMENT ACT
Mr. CANNON. Mr. Speaker, I move to suspend the rules and pass the
bill (H.R. 5304) to amend title 18, United States Code, to provide a
penalty for caller ID spoofing, and for other purposes, as amended.
The Clerk read as follows:
H.R. 5304
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 ``Preventing Harassment
through Outbound Number Enforcement Act''.
SEC. 2. CALLER ID SPOOFING.
(a) In General.--Chapter 47 of title 18, United States
Code, is amended by adding at the end the following:
``Sec. 1039. Caller ID spoofing
``(a) In General.--Whoever knowingly modifies caller ID
information with the intent to defraud or harass another
person, or to use another person's caller ID information
without consent, shall be fined under this title, imprisoned
for not more than five years, or both.
``(b) Attempt; Conspiracy.--Whoever attempts or conspires
to commit an offense under subsection (a) of this section
shall be punished as provided in subsection (a) of this
section.
``(c) Exceptions.--This section does not prohibit the
following:
``(1) Any blocking of caller ID information.
``(2) Any lawfully authorized investigative, protective, or
intelligence activity of a law enforcement agency of the
United States, a State, or a political subdivision of a
State, or of an intelligence agency of the United States, or
any activity authorized under chapter 224 of this title.
``(d) Definitions.--(1) In this section:
``(A) The term `caller ID information' means information
transmitted--
``(i) by a service or device;
``(ii) to the recipient of a telephone call; and
``(iii) regarding the telephone number of, or other
information regarding the origination of, the telephone call.
``(B) The term `telephone call' means a call made using a
telecommunications service or VOIP service.
``(C) The term `VOIP service' means a service that--
``(i) provides real-time 2-way voice communications
transmitted through customer premises equipment using
Transmission Control Protocol/Internet Protocol, or a
successor protocol (including when the voice communication is
converted to or from Transmission Control Protocol/Internet
Protocol by the VOIP service provider and transmitted to the
subscriber without use of circuit switching), for a fee;
``(ii) is offered to the public, or such classes of users
as to be effectively available to the public (whether part of
a bundle of services or separately); and
``(iii) has the capability to originate traffic to, and
terminate traffic from, the public switched telephone
network.
``(D) The term `State' includes a State of the United
States, the District of Columbia, and any commonwealth,
territory, or possession of the United States.
``(2) A term used in a definition in paragraph (1) has the
meaning given such term in section 3 of the Communications
Act of 1934 (47 U.S.C. 153).''.
(b) Clerical Amendment.--The table of sections at the
beginning of chapter 47 of title 18, United States Code, is
amended by adding at the end the following new item:
``1039. Caller ID spoofing.''.
Parliamentary Inquiry
Mr. SCOTT of Virginia. Mr. Speaker, I have a parliamentary inquiry.
The SPEAKER pro tempore. The gentleman will state it.
Mr. SCOTT of Virginia. The Reading Clerk has read the title of the
bill. Does that mean it is the originally introduced bill without
amendments?
The SPEAKER pro tempore. The Chair understands that the motion is to
suspend the rules and pass the bill as amended.
Mr. SCOTT of Virginia. We have looked around the House for a bill,
and we have been unable to find a bill in the Speaker's lobby or on the
Speaker's desk, other than the introduced bill. Could someone explain
to us what we are now considering?
Mr. CANNON. Mr. Speaker, I think that we have five copies at the desk
currently.
The SPEAKER pro tempore. Someone will deliver a copy of the bill to
the committee table.
Mr. CANNON. Mr. Speaker, we are having a copy directed to Mr. Scott.
He has got it.
The SPEAKER pro tempore. Pursuant to the rule, the gentleman from
Utah (Mr. Cannon) and the gentleman from Virginia (Mr. Scott) each will
control 20 minutes.
The Chair recognizes the gentleman from Utah.
General Leave
Mr. CANNON. Mr. Speaker, I ask unanimous consent that all Members
have 5 legislative days within which to revise and extend their remarks
and include extraneous materials on H.R. 5304, as amended, currently
under consideration.
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from Utah?
There was no objection.
Mr. CANNON. Mr. Speaker, I rise in support of H.R. 5304, the
Preventing Harassment through Outbound Number
[[Page H9193]]
Enforcement Act, the PHONE Act, which was introduced by Representative
Tim Murphy. I thank Mr. Murphy for his leadership and commitment to
this issue.
In the last few years, the criminal activity known as ``spoofing''
has been on the rise. Caller ID spoofing occurs when a person
deliberately uses an incorrect, fake or fraudulent caller
identification to hide their identity in order to facilitate a
fraudulent telephone call and to harass, trick or further a fraudulent
scheme. The victims of this activity include the legitimate owner of a
caller ID or the recipient of a fraudulent telephone call, who, as a
result, may divulge legitimate financial or identifying information
such as credit card numbers or other financial information. Spoofing is
nothing less than criminal fraud.
Spoofing technology has become more accessible to the average person,
either through the purchase of Internet telephone equipment or through
Web sites specifically set up to spoof. These Web sites promote
spoofing as a device to commit fraud, prank phone calls and political
attacks, and are used by telemarketers who are attempting to avoid the
current ``do not call'' limits.
H.R. 5304 creates a new Federal crime prohibiting the modification of
caller ID to harass or commit fraud or use another person's ID without
that person's consent. The bill imposes a penalty of a prison term of
up to 5 years and/or a fine for any violation. However, the legislation
does not affect legally available blocking of caller ID technology or
lawfully authorized activities of law enforcement intelligence
agencies.
This legislation will help to deter telephone fraud, to protect
consumers from harassment, and to increase protection of consumers and
their personally identifiable data from fraudulent telephone use.
I urge my colleagues to join together to pass this bipartisan
legislation, H.R. 5304.
Mr. Speaker, I reserve the balance of my time.
Mr. SCOTT of Virginia. Mr. Speaker, I would like to thank the
gentleman from Pennsylvania for introducing the bill that addresses an
important issue. People should be prohibited from defrauding, harassing
others using this technology. A misleading caller ID can enable
criminals to get information that they couldn't otherwise get. It will
enable people to harass. There may be, however, legitimate uses for
this technology, and that is why I have to oppose the motion to suspend
the rules and pass the bill at this point.
{time} 2345
There are a lot of people for whom it should be illegal. But, Mr.
Speaker, I want to express my appreciation for them handing me a bill
as the debate started. We have been negotiating the information in the
bill.
We had a hearing and we found that there are a lot of legitimate uses
for this. For example, women's shelters use misleading caller ID
numbers. Businesses may use a misleading caller ID number if they are
calling from one line of many lines. If they want people to call back
on their main line, they want to use that caller ID.
When we had our hearing we heard that we may want to differentiate
from defrauding and harassing with a criminal intent for criminal gain
as opposed to just harassing. Maybe we might not have a 5-year felony,
you might want to have a misdemeanor.
So I was under the impression earlier today that we were going to
continue negotiating this and work on it and get a decent bill next
year.
Also I heard, Mr. Speaker, that the FBI has made recommendations on
the bill. We don't have that information yet because the
recommendations have not been cleared by OMB. I would ask the chief
sponsor or the proponents of the legislation why it is so important to
pass the legislation before the Bush administration's Federal Bureau of
Investigation comments can be considered?
Mr. Speaker, I reserve the balance of my time.
Mr. CANNON. Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, let me point out to the gentleman that this is in fact
an ongoing problem where we have crimes being committed and some
difficulty in some cases actually having a rationale for prosecuting
people that are using this sometimes in very harsh criminal
circumstances.
The original bill used the term ``misleading.'' I think we have
changed that now to ``defraud or harass.'' There is no legitimate
purpose when you are talking about the defrauding or harassing.
So I would encourage my colleagues to support this bill. It is much
improved, taking into account the concerns of the gentleman from
Virginia, and I believe that it is an appropriate bill, a bill that is
well-drafted now, and I would urge its passage.
Mr. Speaker, I yield such time as he may consume to the gentleman
from Pennsylvania (Mr. Murphy), the author of the bill.
Mr. MURPHY. Mr. Speaker, I rise to ask for support for my bill, H.R.
5304, the Preventing Harassment through Outbound Number Enforcement
Act, or the PHONE Act.
This bill is a critically important consumer protection from fraud,
deception and other crimes. It offers for the first time criminal
penalties for those who falsify a caller ID number in the commission of
a crime.
Over the years, Congress has repeatedly worked to prevent consumers
from identity theft. Unfortunately, with new technology comes new risks
and new opportunities for criminals to evade the law. One of these new
technologies used by thieves is the practice of call spoofing or caller
ID fraud.
With caller ID fraud, one masks their identity by altering their
outbound caller ID number in order to mislead the call recipient. In
other words, you can make a call from your phone, but to the one who is
receiving the call, your caller ID number can be anything you so
choose. In short, caller ID fraud takes away accountability from people
who wish to do harm to others.
Today, 21st century criminals are using fake caller identification to
anonymously defraud and harass Americans all across the country. That
is why I am so pleased that Congress is considering H.R. 5304 tonight,
in order to penalize caller ID fraud perpetrators.
This bill is particularly necessary to protect American families and
the elderly now. It doesn't take much imagination to understand how
dangerous this practice could be for unsuspecting people.
For example, a criminal could try to obtain personal financial
information from individuals by falsely using a bank's phone number. An
ex-spouse can harass a former wife or husband who has blocked calls
from the ex-spouse's phone line. A pedophile could stalk a child by
using a school phone number or the phone number of a friend of the
child. A sexual predator could use a doctor's office phone number. Or a
terrorist could make threats from a government phone number, and there
is no quick way to trace that original call.
The criminal use of caller ID fraud is not just a possibility. Here
are some very real-world examples of caller ID fraud that are very
disturbing.
The AARP Bulletin reported a case in which people received calls
which falsely claimed that they missed jury duty. To avoid prosecution,
callers told their victims that they needed to give their Social
Security number and other personal information. The phone number that
appeared in the caller ID was from the local county courthouse, so
people assumed the caller was telling the truth.
A security company, Secure Science Corporation, has stated that
criminals have accessed these legal call spoofing Internet sites in
order to protect their identities while they buy stolen credit card
numbers. These individuals then call a money transfer service, such as
Western Union, and use a fake caller ID and a stolen credit card number
to order cash transfers to themselves.
If the name on the credit card is John Doe of 123 Main Street and the
caller ID number that shows up is for John Doe of 123 Main Street, it
is easy to see how someone can be deceived into credit card fraud.
Here is another example. In 2005, SWAT teams surrounded an empty
building in New Brunswick, New Jersey, after police received a call
from a woman who said she was being held hostage in an apartment.
However, the woman had intentionally used a false caller ID and she was
not in the apartment at all. Imagine what might have happened when
those SWAT teams showed up. Imagine what might have happened.
[[Page H9194]]
This practice of making a false alarm to a SWAT team has occurred
numerous times across the country. So, not only does this practice have
the potential for tragedy, but it also diverts police and can be used
to mask other crimes or homeland security threats.
It is for these reasons that I introduced H.R. 5304, to punish those
who engage in the intentional practice of misleading others into caller
ID fraud. Violators of the bill will be subject to a penalty of up to 5
years in prison and a maximum fine of $250,000. There is no mandatory
sentencing involved in this bill.
I am hopeful the Senate can quickly approve the bill, so we can send
this bill to the President and protect consumers.
Mr. Speaker, I should point out that the bill came together in a
bipartisan fashion. The bill was examined at hearings of the Judiciary
Subcommittee on Crime, Terrorism, and Homeland Security on November 15
of this year. My two distinguished colleagues, Chairman Howard Coble
and Ranking Member Bobby Scott of Virginia asked many probing questions
and offered insights that were invaluable. Their legal expertise truly
improved this bill and made sure it was not one that dealt at all with
those who may use these in legal fashions, those that would not be
considered crimes.
Thanks to their input, the bill was amended to achieve an agreement
and brought before the House tonight. I sincerely thank them and
everybody else on the Judiciary Committee for their cooperation on this
bill and their commitment to this important consumer protection.
I certainly also want to thank Chairman Sensenbrenner and the full
committee and congratulate him on his remarkable tenure as chairman of
the House Judiciary Committee.
I want to thank Phil Kiko, general counsel of the House Judiciary
Committee; Mike Layman, my legislative director; and especially Susan
Mosychuk, my chief of staff.
Mr. Speaker, over the years, Congress has been routinely criticized
as a reactive institution. Tonight, that Congress takes a proactive
step to move a bill that addresses a problem before further tragedies
occur. This bill will help to stop crime, protect identity theft and
protect lives, and I urge all Members to support the PHONE bill.
Mr. SCOTT of Virginia. Mr. Speaker, I yield myself such time as I may
consume.
Mr. Speaker, this was earlier identified as bipartisan legislation.
It is legislation that is supported in principle by both sides.
However, I would point out that as of this morning, there were no
Democratic cosponsors. But it is important legislation, because of the
examples cited by the gentleman from Pennsylvania, and the bill is
still a work in progress.
It is an improved bill. In fact, it includes many amendments that
have been discussed. One, it limits the application of the bill to
cases where there is harassment or defrauding, not just misleading. I
think that is an important improvement. And there is language offered
by this side that addressed the case we heard where someone else's
caller ID number was being used, people were making insulting phone
calls, they would look at their caller ID and then call the person
whose caller ID number was there. He didn't know anything about it and
he was getting all of these complaining phone calls. Both of these are
good improvements.
But I would still be interested in knowing what the FBI might have to
say about it. They have to enforce the law. They might have some
important suggestions that would be important to include in the bill.
I would ask the proponents of the bill again why it is so important
to consider the legislation before the FBI has had an opportunity to be
heard? We don't have to adopt their ideas, but it seems to me that
since they are going to enforce it, we ought to at least listen to what
they have to say.
We had indicated to the other side that we would bring it up as one
of the first bills next year if we could get the FBI consideration,
continue negotiating the little details and have a bill that we could
be proud of.
However, Mr. Speaker, we are having it today, a work in progress,
where this side just gets handed the legislation as the debate starts,
which is I think insulting, and I think we have heard references to
what happens in the middle of the night. Hopefully we can get the
answer about the FBI from the other side.
Mr. Speaker, I reserve the balance of my time.
Mr. CANNON. Mr. Speaker, I yield myself such time as I may consume.
I would like to introduce for the Record a letter dated today, from
the Department of Justice, that I think answers some of the questions
that the gentleman from Virginia has asked. We will see that a copy of
this is delivered to the gentleman.
Department of Justice, Office of Legislative Affairs,
Office of the Assistant Attorney General,
Washington, DC, December 8, 2006.
Hon. F. James Sensenbrenner, Jr.
Chairman, Committee on the Judiciary,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Department of Justice appreciates
the opportunity to comment on H.R. 5304, the ``Preventing
Harassment through Outbound Number Enforcement Act'' (``PHONE
Act''). As Deputy Assistant Attorney General Barry Sabin
testified before the Subcommittee on Crime, Terrorism, and
Homeland Security last month, we support Congressional action
to give law enforcement better tools to protect our citizens
and our country from identity thieves, stalkers, and other
criminals.
Overall, the bill would support the Department's efforts to
combat the threats caused by the widespread availability of
``caller ID spoofing.'' As noted at the Subcommittee's
hearing on the PHONE Act, these threats include preying on
the elderly, harassment of telephone users, and dangerous
false alarms to public safety personnel. Caller ID spoofing
facilitates a number of serious crimes, including identity
theft, pretexting, and privacy invasions. It can also be used
to hamper important, time sensitive investigations.
The Department was especially pleased to see that the scope
of the bill includes both conventional telephone calling and
many types of voice over Internet protocol (``VOIP'')
services. VOIP is an important new advance in the way
Americans communicate, and our laws need to keep up with such
technological advances if these new innovations are to reach
their full potential.
The drafters also have wisely recognized that, at times, it
may be necessary to modify caller ID information in the
course of authorized law enforcement and intelligence
operations. Accordingly, the bill properly includes an
exception for these legitimate law enforcement and
intelligence activities.
The Department has a number of recommendations (described
below) to clarify the bill and to make it even more
effective.
A. The bill could be made more effective by creating a more
graduated series of offenses.
Proposed Section 1038(a) creates only a single offense, a
felony. A felony is a very serious charge that carries heavy
penalties that may not be proportional to the conduct at
issue in every case. The drafters may wish to consider a more
graduated series of offenses that would allow prosecutors to
charge misdemeanor offenses in appropriate circumstances. For
instance, felony penalties could be reserved for caller ID
spoofing done in furtherance of another crime or tort, while
those playing practical jokes could be charged with a
misdemeanor offense. This could lead to greater use of the
statute and more just results. Such an approach has been
implemented in other federal criminal statutes such as 18
U.S.C. Sec. 1030(c)(2)(B) (part of the Computer Fraud and
Abuse Act) and 18 U.S.C. Sec. 270 I (b) (the criminal
provision in the Electronic Communications Privacy Act).
B. The bill could be made more effective by prohibiting
attempts.
A prosecution should not depend on whether a criminal was
successful in the object of his or her crime. Thus, if a call
placed by a criminal attempting to mislead another does not
go through for some reason, the criminal should be punishable
as if the call had been completed. Such failures may occur
where a service has blocked certain numbers, such as 911, or
even for more mundane technical problems. These failures do
not make the criminal any less culpable for attempting to
mislead others. Thus, we recommend that the bill punish
attempts the same as the substantive offense.
C. The new provision should be numbered 18 U.S.C.
Sec. 1039.
The bill seeks to add a new provision to the end of Chapter
47 of Title 18. Section 1038 in Title 18 already exists,
however, and we understand that there is a good chance that a
bill currently moving through Congress would create a new
section numbered 1039. Thus, this bill should be numbered
either 1039 or 1040 instead.
D. The drafters may wish to include a clear statement of
jurisdiction.
We believe that the bill as written contains a sufficient
nexus to interstate commerce to justify federal jurisdiction
in most cases. Nevertheless, in order to make jurisdiction
even more clear, the Committee may want to consider adding
the phrase ``using any facility or means of interstate or
foreign commerce'' to proposed subsection 1038(a).
Alternatively, it may be helpful to include a specific
finding regarding jurisdiction in the Committee's report.
[[Page H9195]]
E. The bill can be made more effective by prohibiting
``generating and transmitting'' misleading caller
identification information in addition to ``modifying'' such
information.
Some of the caller ID spoofing services available today do
not actually modify caller ID information. As a technical
matter, the service creates a new telephone call, thereby
generating or transmitting new caller ID information. To take
into account such situations, we recommend that, in addition
to modifying information, the bill also cover generating
or transmitting caller ID information with an intent to
mislead.
F. The bill can be made more effective by prohibiting
caller ID spoofing with the intent to mislead any other
person.
Caller ID spoofing can be used not only to mislead call
recipients, but also to defraud communications service
providers. In addition to misreporting the information that
eventually is displayed on call recipients' caller ID
displays, the same methods can be and are used to falsify the
telephone numbers that carriers use to determine appropriate
billing for calls that are carried on their networks. The
bill can be strengthened to include this type of fraud by
prohibiting misleading ``any other person'' rather than only
misleading call recipients.
G. The bill can be made more effective by clarifying the
definition of ``caller ID information. ``
As currently drafted, the definition of ``caller ID
information'' is difficult to parse. We would recommend
rewording proposed subsection 1038(c)(1)(A) to say ``The term
`caller ID information' means information regarding the
origination of the telephone call, including the telephone
number of the originating party.''
H. The bill can be made more effective by focusing the
definition of ``telephone call'' on the service used to
receive calls rather than the service used to make calls.
The bill seeks to cover matters involving ``telephone
calls.'' A ``telephone call'' is defined as a ``call made
using a telecommunications service or a VOIP service.'' See
proposed subsection 1038(c)(1)(B) (emphasis added). This
definition focuses on the service being used to make the
call, thereby allowing the person seeking to mislead others
to avoid criminal liability by choosing a service not covered
by the statute. For example, a caller using a service that
allows only outbound calls to the public switched telephone
network (PSTN) would not be covered (without the
modifications suggested in Section I below), even though
ordinary telephone users would be receiving such calls. The
bill's coverage more properly should depend on the type of
service being used to receive the call, since it is call
recipients that the bill seeks to protect from being misled.
We recommend that the definition of ``telephone call'' be
changed to read ``The term `telephone call' means a
communication made using or received on a telecommunications
service or VOIP service.''
I. The bill can be made more effective by expanding the
definition of ``VOIP service.''
We have a number of concerns with the narrow scope of the
definition of ``VOIP service,'' a definition that soon could
be overtaken by advances in technology. It is important to
craft this definition well not only because of the effect it
would have on the scope of this bill, but because of the
effect it could have on the scope of other important
programs, such as the Communications Assistance for Law
Enforcement Act and emergency response services. As Thomas
Navin, Chief of the Wireline Competition Bureau of the
Federal Communications Commission, testified before the
Subcommittee on Telecommunications and the Internet of the
Energy and Commerce Committee, ``a restrictive definition of
VOIP . . . might establish a statutory precedent that would
restrict the Commission's authority to protect life and
property in both the public safety and law enforcement
contexts.'' The Department has expressed similar concerns in
regulatory proceedings and in connection with other bills
introduced this Congress, and we would respectfully raise
those same concerns with this Committee.
1. The bill can be made more effective by eliminating the
requirement that a VOIP service be transmitted ``through
customer premises equipment.''
It is not clear why protection from being misled by caller
ID information should depend on whether VOIP service is
transmitted ``through customer premises equipment,'' as set
forth in proposed subsection 1038(c)(1)(C)(i). We therefore
suggest deleting these words (``through customer premises
equipment'') to broaden the scope of the bill.
2. The bill can be made more effective by eliminating the
requirement that a VOIP service use Transmission Control
Protocol.
The bill should not be limited to services that use the
Transmission Control Protocol (``TCP''), as many current VOIP
services use another protocol (that is not a successor to
TCP) called the User Datagram Protocol (``UDP''). We
therefore recommend that ``Transmission Control Protocol/''
be deleted from proposed subsection 1038(c)(1)(C)(i).
3. The bill can be made more effective by clarifying the
parenthetical in the definition of a ``VOIP service.''
Proposed subsection 1038(c)(1)(C)(i) provides that a VOIP
service is covered even when the Internet protocol conversion
is performed ``without use of circuit switching.'' The
Department believes that this provision is unclear. We
recommend that the parenthetical be clarified.
4. The bill can be made more effective by eliminating the
requirement that a VOIP service be offered ``for a fee.''
The Department believes it would be preferable that the
bill's prohibition not depend on the provider's business
model, that is, not apply only to those VOIP services offered
``for a fee.'' See proposed subsection 1038(c)(1)(C)(i). At
least some VOIP services are offered at no charge and will be
supported by revenue generated from sources other than user
fees, such as advertising revenue. In fact, several VOIP
providers are currently offering free calls to or from the
PSTN. There is no reason why the business model of the
service provider should have an impact on the scope of the
bill's coverage.
5. The bill can be made more effective by eliminating the
requirement that a VOIP service must offer two-way
interconnection to the PSTN.
The bill also limits ``VOIP service'' to a service that
``has the capability to originate traffic to, and terminate
traffic from, the public switched telephone network [PSTN].''
See proposed 18 U.S.C. Sec. 1038(c)(l)(C)(iii) (emphasis
added). This provision is unnecessarily restrictive for two
reasons. First, some VOIP providers offer services that only
allow one of those two capabilities. Under the definition in
the bill, a call to a person's telephone is not a ``telephone
call'' if the caller's service does not also allow that
originator to receive calls from the PSTN. There is no reason
a person should be allowed to mislead call recipients, even
ones using traditional telephone service, simply because he
or she uses a service that restricts incoming calls. Even if
the bill were amended as suggested above to focus on the
service used to receive calls, there is no reason why
subscribers to receive-only services should be less protected
from fraudulent caller ID information simply because their
ability to call out is limited. We recommend that, at a
minimum, the word ``and'' be changed to ``or'' in proposed
subsection 1038(c)(l)(C)(iii).
In addition, the bill only covers services that are capable
of interconnecting with the PSTN. Reference to the PSTN could
be interpreted to limit its applicability to one particular
set of wires, i.e., the traditional telephone network. If, as
some predict, the future of telephone communications shifts
entirely away from that older network, the bill could become
a dead letter. We recommend adding ``or a successor network''
at the end of proposed subsection 1038(c)(1)(C)(iii).
J. The bill can be more effective by including a forfeiture
provision.
In addition, the Department believes the bill would have
more deterrent effect if it also included a forfeiture
provision. Specifically, a court could order the convicted
party to forfeit the proceeds derived from the offense, along
with equipment used to facilitate the offense. The language
for a forfeiture provision could be modeled on the wording
used for the CAN-SPAM Act of 2003. See 18 U.S.C.A.
Sec. 1037(c).
K. The bill can be made more effective by giving
prosecutors tools to combat money laundering of illegal
proceeds of violations of the PHONE Act and the CAN-SPAM Act.
We recommend adding proposed section 1039 and existing
section 1037 to the list of ``specified unlawful activities''
in section 1956(c)(7)(D) of title 18. This amendment would
make certain financial transactions involving the proceeds of
violations of sections 1037 and 1039 money laundering
offenses under 18 U.S.C. Sec. Sec. 1956 and 1957, and it will
provide for the civil forfeiture of such proceeds. See 18
U.S.C. Sec. 981(a)(l)(C) (providing for the civil forfeiture
of proceeds of crimes designated as ``specified unlawful
activity''). Existing law provides that comparable crimes,
e.g., violations of 18 U.S.C. Sec. 1030 (computer fraud and
abuse) constitute specified unlawful activities.
For convenience, we have included recommended edits to the
text of the bill in order to accomplish many of the
recommendations suggested above (attached hereto as Appendix
A). The Department appreciates the Committee's leadership in
ensuring that our country's laws meet this new challenge.
Thank you for the opportunity to comment on the bill and for
your continuing support.
The Office of Management and Budget has advised that there
is no objection to the presentation of these views from the
standpoint of the Administration's program. If we may be of
additional assistance, please do not hesitate to contact this
office.
Sincerely,
James H. Clinger,
Acting Assistant Attorney General.
Mr. CANNON. Mr. Speaker, the Department of Justice supports the bill.
We recognize that sometimes in the helter-skelter of closing up
Congress, things happen quickly and maybe not perfectly. I think this
bill is a good bill. I think this bill does what we need it to do. I
think we have answered the major questions here. We may have to revisit
it sometime in the future, but I would like to see law enforcement have
this tool.
So I urge my colleagues to support the passage of the bill.
Mr. Speaker, I reserve the balance of my time.
Mr. SCOTT of Virginia. Mr. Speaker, I yield myself such time as I may
consume.
[[Page H9196]]
Mr. Speaker, when the FBI testified on the bill, they indicated they
had some concerns. I assume I will get the concerns after we finish
considering the bill. We had to beg for a copy of the legislation so we
would know what we are debating. Now, I guess, would it hurt your
feelings to let me know what the FBI had to say about it? They had
concerns when they testified on the bill. Let me just say that. I will
just wait over here until I can get a copy of their comments so I know
what they said.
Mr. Speaker, I reserve the balance of my time.
Mr. CANNON. Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, we have a copy of those comments on the way over to the
gentleman from Virginia. I would hope we would never require begging in
this institution for access to information, and I apologize for any
inconvenience.
While we are delivering the Department of Justice's letter, the first
paragraph of which talks about supporting the bill, I would be happy to
yield to the gentleman from Pennsylvania such time as he may consume.
Mr. MURPHY. Mr. Speaker, I wanted to address Mr. Scott's concerns. I
know during the Judiciary Committee the gentleman from Virginia raised
a couple of very important issues. One, he wanted to make sure there
were no mandatory sentencing penalties in this; and, two, to make sure
it did not disallow some legal practices.
For example, businesses may use a caller ID when they call someone to
protect the privacy of people within that business. Indeed, my
understanding is the wording of this does address that, according to
what Judiciary and the Department of Justice has looked at with that
wording.
So it made sure that those within a business may have use or those
with other legitimate uses for using a caller ID. It is only related to
those who harass or defraud others, so only specifically in the
commission of a crime. I just want to say it addressed those issues, as
far as I know.
Mr. CANNON. Mr. Speaker, has the gentleman from Virginia had the
opportunity to review the document and the bill?
Mr. SCOTT of Virginia. Mr. Speaker, I yield myself such time as I may
consume.
Actually I would say to the gentleman from Utah, I haven't gotten any
letter from the Justice Department yet. I assume it is in transit. It
is a long way from that side of the aisle to this side of the aisle. I
don't know what kind of communication method we are using, but I
haven't gotten it yet.
I would point out, as the gentleman from Pennsylvania has indicated,
when we make calls out of our offices in Congress, the caller ID number
that shows up on someone's caller ID machine is some nonworking
switchboard number.
Mr. CANNON. Mr. Speaker, if the gentleman would yield, one of the
greatest pains in my life is the fact that we have colleagues in this
institution who are sometimes troublesome, and so we get that caller ID
and I think it is from my office and I end up talking to one of my
colleagues I might not have talked to if I wasn't being spoofed by the
institution.
My understanding is we had to make a copy of that letter. Apparently
it was the only one we had. So we will have a copy coming to you
momentarily. It is being delivered currently to your staff.
Mr. SCOTT of Virginia. Mr. Speaker, having just been handed the
letter and gone through it very quickly, I would just point out that
the last sentence on the first page says, ``The department has a number
of recommendations (described below) to clarify the bill and to make it
even more effective.''
They suggest, just briefly going through it, A, B, C, D, E, F, G, H,
I, 1, 2, 3, 4, 5, J, K, improvements needed for the bill.
{time} 0000
I do not know if this is a copy or original or what, but I hope
everybody reads the letter that was entered previously in the Record so
they will know that we are taking this action before we have had any
time to consider the recommendations of the FBI which will have the
responsibility of enforcing the bill, if it ever becomes law at the end
of this session.
Mr. Speaker, I reserve the balance of my time.
Mr. CANNON. Mr. Speaker, I yield myself such time as I may consume.
Let me point out to the gentleman that those are not recommendations
of things that are needed to improve the bill but suggestions for
improvement of the bill, and I would ask my colleagues to support the
bill as it stands.
Mr. Speaker, I reserve the balance of my time.
Mr. SCOTT of Virginia. Mr. Speaker, I yield myself such time as I may
consume.
A, the bill could be made more effective by creating a more graduated
series of offenses and then details.
B, the bill could be made more effective by prohibiting attempts,
then a description.
C, a new provision should be numbered 18 U.S.C. 1039 and a
description.
D, the drafters may wish to include a clear statement of
jurisdiction.
E, the bill could be made more effective by prohibiting, generating,
and transmitting misleading caller identification information in
addition to modifying such information, on and on and on.
These are substantive recommendations that we are just going to
ignore by taking this bill up in the middle of the night right here at
the end of the session with a bill that has been handed to this side at
the last minute, with the FBI recommendations that have been hiding the
ball right up until I demanded it, and then they finally let it go.
This is a ridiculous way to put things in the Criminal Code, and I
would hope we would defeat the legislation.
Mr. Speaker, I reserve the balance of my time.
Mr. CANNON. Mr. Speaker, I yield myself such time as I may consume
and would like to point out, I am sure the gentleman when he talks
about hiding the ball he is not referring to us. We have been working
with the Justice Department to get this information.
We got to the gentleman's office this bill by midday today and,
again, we apologize for the technical difficulties. I am not sure if
the gentleman opposes the bill in substance, but I would again
encourage my colleagues to support the bill.
It is my understanding the gentleman is likely to be the chairman of
the Crime Subcommittee next year and can bring this up and improve it
with all of the comments and the suggestions that the Justice
Department has proposed, and therefore I hope that he will join with me
in supporting this bill for its passage. I encourage my colleagues to
pass it.
Mr. Speaker, I reserve the balance of my time.
Mr. SCOTT of Virginia. Mr. Speaker, I yield myself such time as I may
consume.
Mr. Speaker, I cannot support the bill in its present form. I think
we can put a bill together if we are given time. Since we have little
time, we got through E. F is the bill can be made more effective by
prohibiting caller ID spoofing with the intent to mislead any other
person.
G, the bill could be made more effective by clarifying the definition
of ``caller ID information.''
H, the bill can be made more effective by focusing the definition of
``telephone call'' on the service used to receive calls rather than the
service used to make calls.
I, the bill can be made more effective by expanding the definition of
``VOIP service.''
Then one, they could go through what the VOIP service details.
The bill can be made more effective by including a forfeiture
provision.
The bill can be made more effective by giving prosecutors tools to
combat money laundering of illegal proceeds of violations of the PHONE
Act and the CAN-SPAM Act.
Mr. Speaker, you will remember that we were not going to get this
until I demanded it time and time again and they finally produced it,
and now we find out that the information from the FBI is very critical
of the bill, suggesting that it needs a lot of work, and we can do the
work. We could sit down and hammer it out. I think everybody agrees
that something needs to be done about this situation. It is a work in
progress.
I notice in here an amendment that was suggested this afternoon is,
in fact, in the bill in a slightly different wording and I think better
wording in the
[[Page H9197]]
bill than the original suggestion. So it is a work in progress.
But, Mr. Speaker, this is not the way we ought to be legislating. We
can do better than this, and I think we ought to defeat the bill now,
bring it up early in the next session, and have a product that
everybody can be proud of.
Mr. Speaker, I yield back the balance of my time.
Mr. CANNON. Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, I appreciate the gentleman's concerns and would point
out if he had more time with the bill, if the staff had gotten it to
him earlier today, I suspect he would have seen that many of the
suggestions he has made here or suggestions he has read from the
Department of Justice document have actually been taken into account.
Misleading, for instance, is one of the terms that has been adjusted
because it is very difficult to deal with.
The question here is are we going to let the perfect be the enemy of
the good. This is a bill that is very important to the American people.
If you are a divorcee and your husband is harassing you and he is using
a fake phone number to do it, you do not want to wait until next
session. You want the bill passed now so that your former husband is
going to be more careful and not abuse you and your children and maybe
not subject you to injury or harm.
I suggest that those people that are using spoofing need to be told
today that this is inappropriate, and I urge passage of this bill.
Mr. Speaker, I yield back the balance of my time.
The SPEAKER pro tempore. The question is on the motion offered by the
gentleman from Utah (Mr. Cannon) that the House suspend the rules and
pass the bill, H.R. 5304, as amended.
The question was taken.
The SPEAKER pro tempore. In the opinion of the Chair, two-thirds of
those voting have responded in the affirmative.
Mr. SCOTT of Virginia. Mr. Speaker, I object to the vote on the
ground that a quorum is not present and make the point of order that a
quorum is not present.
The SPEAKER pro tempore. Pursuant to clause 8 of rule XX and the
Chair's prior announcement, further proceedings on this question will
be postponed.
The point of no quorum is considered withdrawn.
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