Congressional Record, Volume 157 Issue 68 (Tuesday, May 17, 2011)

[Congressional Record Volume 157, Number 68 (Tuesday, May 17, 2011)]
[Senate]
[Pages S3054-S3059]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS

By Mr. LEAHY:
S. 1011. A bill to improve the provisions relating to the privacy of
electronic communications; to the Committee on the Judiciary.
Mr. LEAHY. Mr. President, today I am pleased to introduce the
Electronic Communications Privacy Act Amendments Act of 2011, a bill to
bring our Federal electronic privacy laws into the digital age. Since
the Electronic Communications Privacy Act, ECPA, was first enacted in
1986, the ECPA has been one of our Nation's premiere privacy laws. But,
today, this law is significantly outdated and out-paced by rapid
changes in technology and the changing mission of our law enforcement
agencies after September 11.
In the digital age, American consumers and businesses face threats to
privacy like no time in history. With the explosion of new
technologies, including social networking sites, smartphones and other
mobile applications, there are many new benefits to consumers. But,
there are also many new risks to their privacy.
Just in the past few weeks, we have witnessed significant data
breaches involving Sony and Epsilon that impact the privacy of millions
of American consumers. We are also learning that smartphones and other
new mobile technologies may be using and storing our location and other
sensitive information posing other new risks to privacy.
When I led the effort to write the ECPA 25 years ago, no one could
have contemplated these and other emerging threats to our digital
privacy. Updating this law to reflect the realities of our time is
essential to ensuring that our Federal privacy laws keep pace with new
technologies and the new threats to our security.
This bill takes several steps to protect Americans' privacy in the
digital age. First, the bill makes common sense changes to the law
regarding the privacy protections afforded to consumers' electronic
communications. Under the current law, a single e-mail could be subject
to as many a four different levels of privacy protections, depending
upon where it is stored and when it was sent. The bill gets rid of the
so-called ``180-day rule'' and replaces this confusing mosaic with one
clear legal standard for the protection of the content of e-mails and
other electronic communications. Under my bill, service providers are
expressly prohibited from disclosing customer content and the
government must obtain a search warrant, based on probable cause, to
compel a service provider to disclose the content of a customer's
electronic communications to the government.
This bill also provides important new consumer privacy protections
for location information that is collected, used, or stored by service
providers, smartphones, or other mobile technologies. To protect
consumer privacy, my bill requires that the government obtain either a
search warrant, or a court order under the Foreign Intelligence
Surveillance Act, in order to access or use an individual's smartphone
or other electronic communications device to obtain geolocation
information. There are well-balanced exceptions to the warrant
requirement if the government needs to obtain location information to
address an immediate threat to safety or national security, or when
there is user consent or a call for emergency services. The bill also
requires that the government obtain a search warrant in order to obtain
contemporaneous, real-time, location information from a provider. There
is an exception to the warrant requirement for emergency calls for
service.
To address the role of new technologies in the changing mission of
law enforcement, the bill also provides important new tools to law
enforcement to fight crime and keep us safe. The bill clarifies the
authority under the ECPA for the government to temporarily delay
notifying an individual of that fact that the government has accessed
the contents of their electronic communications, to protect the
integrity of a government investigation. The bill also gives new
authority to the government to delay notification in order to protect
national security.
Lastly, the ECPA Amendments Act strengthens the tools available in
ECPA to protect our national security and the security of our computer
networks. The legislation creates a new limited exception to the
nondisclosure requirements under the ECPA, so that a service provider
can voluntarily disclose content to the government that is pertinent to
addressing a cyberattack. To protect privacy and civil liberties, the
bill also requires that, among other things, the Attorney General and
the Secretary of Homeland Security submit an annual report to Congress
detailing the number of accounts from which their departments received
voluntary disclosures under this new cybersecurity exception.
In addition, the bill clarifies the kinds of subscriber records that
the Federal Bureau of Investigations may obtain from a provider in
connection with a counterintelligence investigation. This reform will
help to make the process for obtaining this information more certain
and efficient for both the government and providers.
I drafted this bill with one key principle in mind, that updates to
the Electronic Communication Privacy Act must carefully balance the
interests and needs of consumers, law enforcement, and our Nation's
thriving technology sector. I also drafted this bill in careful
consultation with many government and private sector stakeholders,
including the Departments of Justice and Commerce, State and local law
enforcement, and members of the technology and privacy communities.
I thank the Digital Due Process Coalition and the many other
stakeholders who support this bill. I also thank the Departments of
Commerce and Justice for their guidance on how the ECPA impacts the
needs of our law enforcement community and our national economy. I look
forward to continuing to work with all of these stakeholders as this
bill moves forward.
Two decades before Congress first enacted the Electronic
Communications Privacy Act, Chief Justice Earl Warren wisely opined
that ``the fantastic advances in the field of electronic communications
constitute a greater danger to the privacy of the individual.'' This
aptly describes the state of our digital privacy rights today. The
balanced reforms in this bill will help ensure that our Federal privacy
laws address the many dangers to personal privacy posed by the rapid
advances in electronic communications technologies. Accomplishing this
challenging task will not be easy. But, with the introduction of the
Electronic Communications Privacy Act Amendments Act of 2011, we take a
significant step towards this very important goal.

[[Page S3055]]

Mr. President, I ask unanimous consent that the text of the bill be
printed in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:

S. 1011

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 ``Electronic Communications
Privacy Act Amendments Act of 2011''.

SEC. 2. PROHIBITION ON DISCLOSURE OF CONTENT.

Section 2702(a)(3) of title 18, United States Code, is
amended to read as follows:
``(3) a provider of electronic communication service,
remote computing service, or geolocation information service
to the public shall not knowingly divulge to any governmental
entity the contents of any communication described in section
2703(a), or any record or other information pertaining to a
subscriber or customer of such provider or service.''.

SEC. 3. ELIMINATION OF 180 DAY RULE AND SEARCH WARRANT
REQUIREMENT; REQUIRED DISCLOSURE OF CUSTOMER
RECORDS.

(a) In General.--Section 2703 of title 18, United States
Code, is amended--
(1) by striking subsections (a), (b), and (c) and inserting
the following:
``(a) Contents of Wire or Electronic Communications in
Electronic Storage.--
``(1) In general.--A governmental entity may require the
disclosure by a provider of electronic communication service,
remote computing service, or geolocation information service
of the contents of a wire or electronic communication that is
in electronic storage with or otherwise held or maintained by
the provider if the governmental entity obtains a warrant
issued and executed in accordance with the Federal Rules of
Criminal Procedure (or, in the case of a State court, issued
using State warrant procedures) that is issued by a court of
competent jurisdiction directing the disclosure.
``(2) Notice.--Except as provided in section 2705, not
later than 3 days after a governmental entity receives the
contents of a wire or electronic communication of a
subscriber or customer from a provider of electronic
communication service, remote computing service, or
geolocation information service under paragraph (1), the
governmental entity shall serve upon, or deliver to by
registered or first-class mail, electronic mail, or other
means reasonably calculated to be effective, as specified by
the court issuing the warrant, the subscriber or customer--
``(A) a copy of the warrant; and
``(B) a notice that includes the information referred to in
section 2705(a)(5)(B)(i).
``(b) Records Concerning Electronic Communication Service,
Remote Computing Service, or Geolocation Information
Service.--
``(1) In general.--Subject to paragraph (2) and subsection
(g), a governmental entity may require a provider of
electronic communication service, remote computing service,
or geolocation information service to disclose a record or
other information pertaining to a subscriber or customer of
the provider or service (not including the contents of
communications), only if the governmental entity--
``(A) obtains a warrant issued and executed in accordance
with the Federal Rules of Criminal Procedure (or, in the case
of a State court, issued using State warrant procedures) that
is issued by a court of competent jurisdiction directing the
disclosure;
``(B) obtains a court order directing the disclosure under
subsection (c);
``(C) has the consent of the subscriber or customer to the
disclosure; or
``(D) submits a formal written request relevant to a law
enforcement investigation concerning telemarketing fraud for
the name, address, and place of business of a subscriber or
customer of the provider or service that is engaged in
telemarketing (as defined in section 2325).
``(2) Subpoenas.--
``(A) In general.--A governmental entity may require a
provider of electronic communication service, remote
computing service, or geolocation information service to
disclose information described in subparagraph (B) if the
governmental entity obtains--
``(i) an administrative subpoena under a Federal or State
statute; or
``(ii) a Federal or State grand jury subpoena or trial
subpoena.
``(B) Requirements.--The information described in this
subparagraph is--
``(i) the name of the subscriber or customer;
``(ii) the address of the subscriber or customer;
``(iii) the local and long distance telephone connection
records, or records of session times and durations, of the
subscriber or customer;
``(iv) length of service (including start date) and types
of service utilized by the subscriber or customer;
``(v) telephone or instrument number or other subscriber
number or identity, including any temporarily assigned
network address, of the subscriber or customer; and
``(vi) means and source of payment for such service
(including any credit card or bank account number) of the
subscriber or customer.
``(3) Notice not required.--A governmental entity that
receives records or information under this subsection is not
required to provide notice to a subscriber or customer.'';
and
(2) by redesignating subsections (d) through (g) as
subsections (c) through (f), respectively.
(b) Technical and Conforming Amendments.--
(1) Section 2258a.--Section 2258A(h)(1) of title 18, United
States Code, is amended by striking ``section 2703(f)'' and
inserting ``section 2703(e)''.
(2) Section 2703.--Section 2703(c) of title 18, United
States Code, as redesignated by subsection (a), is amended--
(A) by striking ``A court order for disclosure under
subsection (b) or (c)'' and inserting ``A court order for
disclosure under subsection (b)(1)(B) or (g)(3)(A)(ii)''; and
(B) by striking ``the contents of a wire or electronic
communication, or the records or other information sought,''
and inserting ``the records, other information, or historical
geolocation information sought''.
(3) Section 2707.--Section 2707(a) of title 18, United
States Code, is amended by striking ``section 2703(e)'' and
inserting ``section 2703(d)''.
(4) Section 3486.--Section 3486(a)(1)(C)(i) of title 18,
United States Code, is amended by striking ``section
2703(c)(2)'' and inserting ``section 2703(b)(2)(B)''.

SEC. 4. DELAYED NOTICE.

Section 2705 of title 18, United States Code, is amended to
read as follows:

``Sec. 2705. Delayed notice

``(a) Delay of Notification.--
``(1) In general.--A governmental entity that is seeking a
warrant under section 2703(a) may include in the application
for the warrant a request for an order delaying the
notification required under section 2703(a) for a period of
not more than 90 days.
``(2) Determination.--A court shall grant a request for
delayed notification made under paragraph (1) if the court
determines that there is reason to believe that notification
of the existence of the warrant may result in--
``(A) endangering the life or physical safety of an
individual;
``(B) flight from prosecution;
``(C) destruction of or tampering with evidence;
``(D) intimidation of potential witnesses;
``(E) otherwise seriously jeopardizing an investigation or
unduly delaying a trial; or
``(F) endangering national security.
``(3) Extension.--Upon request by a governmental entity, a
court may grant 1 or more extensions of the delay of
notification granted under paragraph (2) of not more than 90
days.
``(4) Expiration of the delay of notification.--Upon
expiration of the period of delay of notification under
paragraph (2) or (3), the governmental entity shall serve
upon, or deliver to by registered or first-class mail,
electronic mail or other means reasonably calculated to be
effective as specified by the court approving the search
warrant, the customer or subscriber--
``(A) a copy of the warrant; and
``(B) notice that informs the customer or subscriber--
``(i) that information maintained for the customer or
subscriber by the provider of electronic communication
service, remote computing service, or geolocation information
service named in the process or request was supplied to, or
requested by, the governmental entity;
``(ii) of the date on which the request to the provider for
information was made by the governmental entity and the date
on which the information was provided by the provider to the
governmental entity;
``(iii) that notification of the customer or subscriber was
delayed;
``(iv) the identity of the court authorizing the delay; and
``(v) of the provision of this chapter under which the
delay was authorized.
``(b) Preclusion of Notice to Subject of Governmental
Access.--
``(1) In general.--A governmental entity that is obtaining
the contents of a communication or information or records
under section 2703 or geolocation information under section
2713 may apply to a court for an order directing a provider
of electronic communication service, remote computing
service, or geolocation information service to which a
warrant, order, subpoena, or other directive under section
2703 or 2713 is directed not to notify any other person of
the existence of the warrant, order, subpoena, or other
directive for a period of not more than 90 days.
``(2) Determination.--A court shall grant a request for an
order made under paragraph (1) if the court determines that
there is reason to believe that notification of the existence
of the warrant, order, subpoena, or other directive may
result in--
``(A) endangering the life or physical safety of an
individual;
``(B) flight from prosecution;
``(C) destruction of or tampering with evidence;
``(D) intimidation of potential witnesses;
``(E) otherwise seriously jeopardizing an investigation or
unduly delaying a trial; or
``(F) endangering national security.
``(3) Extension.--Upon request by a governmental entity, a
court may grant 1 or more extensions of an order granted
under paragraph (2) of not more than 90 days.''.

SEC. 5. LOCATION INFORMATION PRIVACY.

(a) In General.--Chapter 121 of title 18, United States
Code, is amended by adding at the end the following:

[[Page S3056]]

``Sec. 2713. Location tracking of electronic communications
device

``(a) Prohibition.--Except as provided in subsection (b),
(c), or (d), no governmental entity may access or use an
electronic communications device to acquire geolocation
information.
``(b) Acquisition Pursuant to a Warrant or Court Order.--A
governmental entity may access or use an electronic
communications device to acquire geolocation information if
the governmental entity obtains--
``(1) a warrant issued and executed in accordance with the
Federal Rules of Criminal Procedure relating to tracking
devices (or, in the case of a State court, issued using State
warrant procedures), issued by a court of competent
jurisdiction authorizing the accessing or use of an
electronic communications device to acquire geolocation
information; or
``(2) a court order under title I or title VII of the
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801
et seq. and 1881 et seq.) authorizing the accessing or use of
an electronic communications device to acquire geolocation
information.
``(c) Permitted Acquisitions Without Court Order.--A
governmental entity may access or use an electronic
communications device to acquire geolocation information--
``(1) as permitted under section 222(d)(4) of the
Communications Act of 1934 (47 U.S.C. 222(d)(4)) in order to
respond to a call for emergency services by a user of an
electronic communications device; or
``(2) with the express consent of the owner or user of the
electronic communications device concerned.
``(d) Emergency Acquisition of Geolocation Information.--
``(1) In general.--Subject to paragraph (2), an
investigative or law enforcement officer specially designated
by the Attorney General, the Deputy Attorney General, the
Associate Attorney General, any Assistant Attorney General,
any acting Assistant Attorney General, any United States
attorney, any acting United States attorney, or the principal
prosecuting attorney of any State or political subdivision
thereof acting pursuant to a statute of that State may access
or use an electronic communications device to acquire
geolocation information if the investigative or law
enforcement officer reasonably determines that--
``(A) an emergency situation exists that--
``(i) involves--

``(I) immediate danger of death or serious bodily injury to
any person;
``(II) conspiratorial activities characteristic of
organized crime; or
``(III) an immediate threat to national security; and

``(ii) requires the accessing or use of an electronic
communications device to acquire geolocation information
before an order authorizing the acquisition may, with due
diligence, be obtained; and
``(B) there are grounds upon which an order could be
entered under this section to authorize the accessing or use
of an electronic communications device to acquire geolocation
information.
``(2) Order and termination.--If an investigative or law
enforcement officer accesses or uses an electronic
communications device to acquire geolocation information
under paragraph (1)--
``(A) not later than 48 hours after the activity to acquire
the geolocation information has occurred, or begins to occur,
the investigative or law enforcement officer shall seek a
warrant or order described in subsection (b) approving the
acquisition; and
``(B) unless a warrant or order described in subsection (b)
is issued approving the acquisition, the activity to acquire
the geolocation information shall terminate immediately at
the earlier of the time--
``(i) the information sought is obtained;
``(ii) the application for the warrant or order is denied;
or
``(iii) at which 48 hours have elapsed since the activity
to acquire the geolocation information began to occur.
``(3) Violation and suppression of evidence.--
``(A) In general.--In a circumstance described in
subparagraph (B), a court may determine that--
``(i) no information obtained, or evidence derived from,
geolocation information acquired as part of the accessing or
use of an electronic communications device to acquire
geolocation information may be received into evidence or
otherwise disclosed in any trial, hearing, or other
proceeding in or before any court, grand jury, department,
office, agency, regulatory body, legislative committee, or
other authority of the United States, a State, or political
subdivision thereof; and
``(ii) no information concerning any person acquired from
the geolocation information may be used or disclosed in any
other manner, without the consent of the person.
``(B) Circumstances.--A circumstance described in this
subparagraph is any instance in which--
``(i) an investigative or law enforcement officer does
not--

``(I) obtain a warrant or order described in subsection (b)
within 48 hours of commencing the accessing or use of the
electronic communications device; or
``(II) terminate the activity to acquire geolocation
information in accordance with paragraph (2)(B); or

``(ii) a court denies the application for a warrant or
order approving the accessing or use of an electronic
communications device to acquire geolocation information.
``(e) Assistance and Compensation.--
``(1) In general.--A warrant described in subsection (b)(1)
authorizing the accessing or use of an electronic
communications device to acquire geolocation information
shall, upon request of the applicant, direct that a provider
of electronic communication service, remote computing
service, or geolocation information service shall provide to
the applicant forthwith all information, facilities, and
technical assistance necessary to accomplish the acquisition
unobtrusively and with a minimum of interference with the
services that the provider is providing to or through the
electronic communications device in question.
``(2) Compensation.--Any provider of electronic
communication service, remote computing service, or
geolocation information service providing information,
facilities, or technical assistance under a directive under
paragraph (1) shall be compensated by the applicant for
reasonable expenses incurred in providing the information,
facilities, or assistance.
``(f) No Cause of Action Against a Provider.--No cause of
action shall lie in any court against any provider of
electronic communication service, remote computing service,
or geolocation information service, or an officer, employee,
or agent of the provider or other specified person for
providing information, facilities, or assistance necessary to
accomplish an acquisition of geolocation information
authorized under this section.''.
(b) Technical and Conforming Amendments.--Title 18 of the
United States Code is amended--
(1) in the table of sections for chapter 121, by adding at
the end the following:

``2713. Location tracking of electronic communications device.'';

(2) in section 2703--
(A) in subsection (d), as redesignated by section 3, by
inserting ``geolocation information service, or remote
computing service,'' after ``electronic communication
service,'';
(B) in subsection (e)(1), as redesignated by section 3, by
striking ``electronic communication services or a'' and
inserting ``electronic communication service, geolocation
information service, or''; and
(C) in subsection (f), as redesignated by section 3--
(i) by inserting ``, geolocation information service,''
after ``electronic communication service''; and
(ii) by inserting ``, geolocation information,'' after
``contents of communications'';
(3) in section 2711--
(A) in paragraph (3), by striking ``and'' at the end;
(B) in paragraph (4), by striking the period at the end and
inserting a semicolon; and
(C) by adding at the end the following:
``(5) the term `electronic communications device' means any
device that enables access to or use of an electronic
communications system, electronic communication service,
remote computing service, or geolocation information service;
``(6) the term `geolocation information'--
``(A) means any information concerning the location of an
electronic communications device that is in whole or in part
generated by or derived from the operation or use of the
electronic communications device;
``(B) does not include--
``(i) information described in section 2703(b)(2)(B); or
``(ii) the contents of a communication;
``(7) the term `geolocation information service' means the
provision of a global positioning service or other mapping,
locational, or directional information service;
``(8) the term `electronic communication identifiable
information' means the--
``(A) name of a person or entity;
``(B) address of a person or entity;
``(C) records of session times and durations of a person or
entity;
``(D) length of service and types of service used by a
person or entity;
``(E) telephone or instrument number or other subscriber
number or identity (including any temporarily assigned
network address) of a person or entity; and
``(F) dialing, routing, addressing, and signaling
information associated with each communication to or from the
subscriber account of a person or entity (including the date,
time, and duration of the communications, without
geographical limit);
``(9) the term `toll billing records' means the--
``(A) name of a person or entity;
``(B) address of a person or entity;
``(C) length of service of a person or entity; and
``(D) local and long distance billing records of a person
or entity; and
``(10) the term `customer' means any person, or authorized
representative of that person, who used or is using any
service provided by an electronic communication service,
remote computing service, or geolocation information service,
regardless of whether the service was, or is, being provided
for a monetary fee.''; and
(4) in section 3127--
(A) in paragraph (1), by striking ``and `contents' have''
and inserting `` `contents', and `geolocation information'
have'';
(B) in paragraph (3), by inserting `` or geolocation
information,'' after ``contents of any communication''; and

[[Page S3057]]

SEC. 6. REQUIRED DISCLOSURE OF LOCATION INFORMATION AND
WARRANT REQUIREMENT.

Section 2703 of title 18, United States Code, as amended by
section 3, is amended by adding at the end the following:
``(g) Location Information.--
``(1) In general.--Except as provided in paragraph (2), a
governmental entity may not require a provider of electronic
communication service, remote computing service, or
geolocation information service to disclose geolocation
information contemporaneously or prospectively.
``(2) Exceptions.--
``(A) Warrants.--A governmental entity may require a
provider of electronic communication service, remote
computing service, or geolocation information service to
disclose geolocation information contemporaneously or
prospectively pursuant to a warrant issued and executed in
accordance with the Federal Rules of Criminal Procedure (or,
in the case of a State court, issued using State warrant
procedures), issued by a court of competent jurisdiction.
``(B) Call for emergency services.--A provider of
electronic communication service, remote computing service,
or geolocation information service may provide geolocation
information contemporaneously or prospectively to a
governmental entity as permitted under section 222(d)(4) of
the Communications Act of 1934 (47 U.S.C. 222(d)(4)) in order
to respond to a call for emergency services by a user of an
electronic communications device.
``(3) Historical location information.--
``(A) In general.--A governmental entity may require a
provider of electronic communication service, remote
computing service, or geolocation information service to
disclose historical geolocation information pertaining to a
subscriber or customer of the provider only if the
governmental entity--
``(i) obtains a warrant issued and executed in accordance
with the Federal Rules of Criminal Procedure (or, in the case
of a State court, issued using State warrant procedures) that
is issued by a court of competent jurisdiction directing the
disclosure;
``(ii) obtains a court order directing the disclosure under
subsection (c); or
``(iii) has the consent of the subscriber or customer to
the disclosure.
``(B) Notice not required.--A governmental entity that
receives historical geolocation information under
subparagraph (A) is not required to provide notice to a
subscriber or customer.''.

SEC. 7. VOLUNTARY DISCLOSURES TO PROTECT CYBERSECURITY.

Section 2702 of title 18, United States Code is amended--
(1) in subsection (b)(5), by inserting ``, cybersecurity,''
after ``rights'';
(2) in subsection (c)(3), by inserting ``, cybersecurity,''
after ``rights''; and
(3) by adding at the end the following:
``(e) Reporting of Cybersecurity Disclosures.--On an annual
basis, the Attorney General of the United States shall submit
to the Committee on the Judiciary of the House of
Representatives and the Committee on the Judiciary of the
Senate a report containing--
``(1) the number of accounts from which the Federal
Government has received voluntary disclosures under
subsection (b)(5) that pertain to the protection of
cybersecurity; and
``(2) a summary of the basis for disclosure in each
instance where--
``(A) a voluntary disclosure under subsection (b)(5) that
pertains to the protection of cybersecurity was made to the
Department of Justice; and
``(B) the investigation pertaining to the disclosure was
closed without the filing of criminal charges.''.

SEC. 8. ELECTRONIC COMMUNICATION IDENTIFIABLE INFORMATION.

(a) In General.--Section 2709(a) of title 18, United States
Code, is amended by striking ``electronic communication
transactional records'' and inserting ``electronic
communication identifiable information''.
(b) Required Certification.--Section 2709(b) of title 18,
United States Code, is amended to read as follows:
``(b) Required Certification.--The Director of the Federal
Bureau of Investigation, or a designee in a position not
lower than Deputy Assistant Director at Bureau headquarters
or a Special Agent in Charge in a Bureau field office
designated by the Director, may request the toll billing
records and electronic communication identifiable information
of a person or entity if the Director (or designee) certifies
in writing to the wire or electronic communication service
provider or geolocation information service provider to which
the request is made that the toll billing records and
electronic communication identifiable information sought are
relevant to an authorized investigation to protect against
international terrorism or clandestine intelligence
activities, provided that such an investigation of a United
States person is not conducted solely on the basis of
activities protected by the First Amendment to the
Constitution of the United States.''.
______

By Mr. BAUCUS (for himself, Mr. Hatch, Mr. Rockefeller, and Mr.
Enzi):
S. 1013. A bill to renew the authority of the Secretary of Health and
Human Services to approve demonstration projects designed to test
innovative strategies in State child welfare programs; to the Committee
on Finance.
Mr. BAUCUS. Mr. President, the Finance Committee has a long history
of working together in a bi-partisan fashion in the interest of
children in Montana and across the Nation. I am happy to have you as a
partner on child welfare issues. The Fostering Connections to Success
and Increasing Adoptions Act of 2008 was a first step on the road to
reforming the child welfare system. Today, with the introduction of the
State Child Welfare Innovation Act, we take another step on the path
toward making lives better for the children we serve.
As the authors of this legislation, we build on the successes of
waivers since they were first authorized in 1994. Since that time,
these waivers have given States the flexibility needed to focus on new
practices that prevent abuse and neglect and encourage permanency for
children in our child welfare system.
It is important for us to understand that the goal of reauthorizing
child welfare waivers is not simply to develop and test new service
delivery models, but to put in place sound practices that state
innovation has determined to be effective in increasing positive
outcomes for youth in the system.
Our March 11 hearing entitled ``Innovations in Child Welfare
Waivers'' continued a productive conversation and helped us to craft
legislation to address some of the issues facing our Nation's most-
vulnerable youth. I was happy we were able to welcome two graduates of
the foster care system to share their perspectives. In our
conversations with youth, service providers and local government
officials, we have noted the successes of the program in spurring
innovative new practices while listening to the concerns regarding the
challenges that they have faced in the implementation of these waivers
and in the system overall.
In this legislation, we continued to focus the waivers on producing
improvements in three important areas: the prevention of abuse and
neglect; safety for children at home and in placements; and permanency
outcomes. We have also asked States to focus on increasing the quality
of care for kids in the foster care system. We heard from youth about
what is important to them, including knowing what your rights are and
understanding how to reconnect with biological parents in a healthy
way. I am so pleased we were able to work together to give States the
opportunity and incentive to address these concerns.
Mr. HATCH. Mr. President, I am also pleased to join with my partner
on the Senate Finance Committee in producing bipartisan legislation
that gives States increased flexibility to improve the lives of
children and youth.
The legislation we will introduce today is the product of many months
of work and is the result of an open and transparent process bringing
together relevant stakeholders. The Committee has heard from the state
groups, the advocacy community and most importantly, youth both in and
out of the foster care system. Young people in ``Foster Club,'' have a
saying: ``Nothing about us, without us.'' We have taken their motto to
heart and the legislation we are introducing today reflects years of
input for youth in and out of foster care.
I agree with the Chairman of the Finance Committee when he
characterized the State Child Welfare Innovation Act as another step on
the pathway to comprehensive child welfare reform.
Comprehensive child welfare reform is desperately needed. The current
financing system is antiquated, relying on an income eligibility proxy
dating back to pre-welfare reform standards. The majority of Federal
support goes to the least desirable outcome: the placement of a child
or youth into foster care. Federal priorities should be aligned so that
States are able to keep families together, safely.
But financing reform is not enough. The underlying foster care system
needs to be improved. Often times when children enter foster care,
siblings are separated. Children and youth are shuttled from place to
place. Their education is disrupted. Their ability to play sports or
engage in after school

[[Page S3058]]

activities is thwarted. Under the current system, about 30,000 young
people a year exit foster care without a permanent connection and are
at risk for homelessness, incarceration and drug abuse.
My State of Utah informs me that with flexibility, Utah can improve
on the State's decade-old effort to protect children and strengthen
families.
As we look to make improvements to our social service delivery
systems, we should be relying on the States to chart the way through
flexibility and innovation. The States are the critical units within
our constitutional democracy. The States are the laboratories of
democracy, where appropriate solutions to problems are best crafted.
The Federal Government needs to give States maximum flexibility in
crafting solutions that work for their citizens. I am pleased that this
legislation is consistent with that approach and look forward to making
further progress to improve the lives of children and young people.
Mr. BAUCUS. I am happy to introduce this legislation with my partner
on the Senate Finance Committee, the Ranking Member of that Committee,
Senator Hatch. I look forward to a new chapter in our work together
that helps put our Nation's child welfare system on the pathway to
reform.
______

By Mrs. FEINSTEIN (for herself, Mr. Kyl, Mr. Cornyn, Ms.
Klobuchar, Mr. McCain, Mrs. Hutchison, and Mr. Franken):
S. 1014. A bill to provide for additional Federal district
judgeships; to the Committee on the Judiciary.
Mrs. FEINSTEIN. Mr. President, I rise to introduce, together with my
colleague and friend Senator Kyl, the Emergency Judicial Relief Act of
2011.
This bill would create a total of ten District judgeships in five
courts across the country that are facing true emergency situations.
I want to thank our cosponsors, Senators Cornyn, Klobuchar, Boxer,
McCain, Hutchison, and Franken, for working with Senator Kyl and me on
this bill.
As a member of the Senate, I take very seriously our duty to ensure
that the Nation's Federal courts have the resources they need to
administer justice for the American people. Our Federal courts bear
responsibility for adjudicating criminal cases, deciding civil rights
and employment cases, and resolving commercial disputes between
companies. When our courts become overburdened, we leave crime victims
and criminal defendants in limbo and civil litigants without resolution
to their problems.
In the Eastern District of California, the need for additional judges
is acute. This District, which extends over 87,000 miles and
encompasses California's Central Valley, faces far and away the worst
caseload crisis in the Nation.
The District is home to more than eight million Californians, but it
has only 6 active District Judges. For three decades, the District's
population has been steadily growing, but the size of the Court has
been unchanged. Congress has not created a permanent judgeship in the
Eastern District since 1978 and the only temporary judgeship created
was allowed to expire and never renewed despite repeated attempts by
myself and Senator Leahy.
The result is unacceptable. As of December 31, 2010, the District was
managing 1,133 weighted filings per authorized judgeship, a caseload
that is not only the highest in the Nation, but also 300 weighted
filings per judge higher than any other District Court in the country
and almost three times the threshold at which the Judicial Conference
recommends additional judgeships.
For everyday life, what this means is that individuals and businesses
must wait months, or even years to have their disputes resolved.
According to the most recent statistics, criminal felony cases remained
pending in this court for a median of 12.7 months; and more than 10
percent of all civil cases were taking more than 3 years from the date
of filing to be decided.
The delay is not for lack of effort. As Judge Lawrence O'Neill
testified before the Senate Judiciary Committee in 2009, the Eastern
District's judges are among the most productive in the Nation, and the
court is utilizing every resource currently at its disposal. The
caseloads are simply unmanageable.
U.S. Supreme Court Chief Justice John Roberts has publicly remarked
on the problems in the District; so has Associate Justice Anthony
Kennedy; and the Judicial Conference of the United States has formally
called on Congress to create more judgeships here.
The Emergency Judicial Relief Act of 2011 would provide a narrow,
targeted solution.
The bill would create new judgeships in five Districts across the
country where the need is most staggering, four in the Eastern District
of California, two in the District of Arizona; two in the Western
District of Texas; one in the Southern District of Texas; and one in
the District of Minnesota. Additionally, the bill would convert a
temporary judgeship in the District of Arizona and one in the Central
District of California to permanent status. The bill would be offset by
raising civil filing fees $10, from $350 to $360.
Let me be clear. California needs far more judgeships than this bill
would create, and I will work with my colleagues to create those badly
needed judgeships.
In the meantime, this bill is a narrow, emergency measure to provide
relief in the handful of Districts that need it the very most.
I urge my colleagues to work with me to pass this commonsense, good
government bill.
Mr. President, I ask unanimous consent that the text of the bill be
printed in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:

S. 1014

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 ``Emergency Judicial Relief
Act of 2011''.

SEC. 2. FEDERAL DISTRICT JUDGESHIPS.

(a) Additional Permanent District Judgeship.--The President
shall appoint, by and with the advice and consent of the
Senate--
(1) 2 additional district judges for the district of
Arizona;
(2) 4 additional district judges for the eastern district
of California;
(3) 1 additional district judge for the district of
Minnesota;
(4) 1 additional district judge for the southern district
of Texas; and
(5) 2 additional district judges for the western district
of Texas.
(b) Conversion of Temporary Judgeships.--The existing
judgeships for the district of Arizona and the central
district of California authorized by section 312(c) of the
21st Century Department of Justice Appropriations
Authorization Act (28 U.S.C. 133 note; Public Law 107-273;
116 Stat. 1788), as of the effective date of this Act, shall
be authorized under section 133 of title 28, United States
Code, and the incumbents in those offices shall hold the
office under section 133 of title 28, United States Code, as
amended by this Act.
(c) Technical and Conforming Amendments.--The table
contained in section 133(a) of title 28, United States Code,
is amended--
(1) by striking the item relating to the district of
Arizona and inserting the following:

``Arizona.................................................. 15'';

(2) by striking the item relating to California and
inserting the following:

``California:
Northern................................................. 14
Eastern.................................................. 10
Central.................................................. 28
Southern................................................. 13'';

(3) by striking the item relating to the district of
Minnesota and inserting the following:

``Minnesota................................................ 8''; and

(4) by striking the item relating to Texas and inserting
the following:

``Texas:
Northern................................................. 12
Southern................................................. 20
Eastern.................................................. 7
Western.................................................. 15''.

(d) Increase in Filing Fees.--Section 1914(a) of title 28,
United States Code, is amended by striking ``$350'' and
inserting ``$360''.
______

By Mr. BINGAMAN (for himself, Mr. Crapo, Mr. Kerry, Ms. Snowe,
Mr. Cardin, and Mr. Grassley):
S. 1016. A bill to amend the Internal Revenue Code of 1986 to
permanently modify the limitations on the deduction of interest by
financial institutions which hold tax-exempt bonds, and for other
purposes; to the Committee on Finance.
Mr. BINGAMAN. Mr. President, I rise today to introduce the Municipal
Bond Market Support Act of 2011. This bill is

[[Page S3059]]

similar to ones that Senator Crapo and I introduced in the 110th and
111th Congresses. I am grateful for Senator Crapo's continued
leadership on this issue, as well as the cosponsorship of our Finance
Committee colleagues, Senators Kerry, Snowe, Cardin, and Grassley.
Municipal bonds have long played an essential role in financing the
construction, expansion, and repair of schools; highways, roads, and
bridges; affordable housing; hospitals; public transit; water and
sewage systems; and community-owned utilities. Since the enactment of
the Federal income tax in 1913, Congress has supported the municipal
bond market by exempting municipal bond interest from taxation. Tax
exemption confers Federal assistance on State and local capital
investments; it also recognizes that decisions about which projects to
fund are most appropriately made at the State or local level.
Historically, banks were significant purchasers of tax-exempt debt.
But the Tax Reform Act of 1986 severely curtailed banks' participation
by automatically disallowing deductions for interest expense whenever
municipal bonds are purchased. The 1986 Act left an exception only for
bonds purchased from smaller municipalities, those selling no more than
$10 million of bonds each year. But because the $10 million level was
not indexed to inflation, its purchasing power has eroded significantly
since 1986, leaving many smaller governments and non-profit educational
and health care facilities either to defer projects to comply with this
low limit or find non-bank purchasers.
I was very pleased that the American Recovery and Reinvestment Act
incorporated a bill that Senator Crapo and I introduced, the Municipal
Bond Market Support Act of 2009, raising the $10 million small issuer
exception to $30 million. Additionally, the Recovery Act included a
provision ensuring that the small issuer is made applicable at the
ultimate borrower level, so that bonds benefiting non-profit
universities and hospitals will not exceed the limitation merely
because they issue bonds through statewide authorities.
Taken together, those steps significantly enhanced demand for debt
issued by small municipal governments, enabling municipalities across
the Nation, and particularly those in small and rural communities, to
finance the critical infrastructure projects that play an important
role in growing our national economy.
In 2009, the dollar amount of bank qualified issuances reached $32.7
billion, double the prior year's level, with more than 6,000 issuances.
Beneficiaries included a broad range of counties, cities, and school
districts in all corners of my home state of New Mexico. For instance,
the proceeds of a $17 million bond issued by Santa Fe County financed
roads, trails and parks for open space, a fire facility, a solid waste
transfer station, water rights acquisition and water projects. The City
of Artesia completed two bank-qualified transactions, to finance
building a public safety complex and a new waste water treatment
facility. The Bloomfield School District placed $19 million in bank-
qualified debt to finance capital expenditures. Similarly, in 2010,
issuances climbed even further, to $36.8 billion, with more than 6,700
issuances representing a similarly diverse array of counties, cities,
school districts, infrastructure districts, and hospitals across my
home state of New Mexico and the country.
The ARRA-enacted provisions helped small communities across New
Mexico and the country finance critical infrastructure needs and create
jobs. The higher bank-qualified limit is a great success and deserves
to be made permanent. The bill that Senators Crapo, Kerry, Snowe,
Cardin, Grassley, and I are introducing today would do just that,
ensuring that smaller governments and non-profit educational and health
care facilities can finance their capital needs, particularly in
periods of tight credit, and save taxpayer dollars.
At least 14 national organizations representing issuers of tax-exempt
bonds are supporting the Act. These include the American Hospital
Association; American Public Power Association; Council of Development
Finance Authorities; Council of Infrastructure Financing Authorities;
Government Finance Officers Association; International City/County
Management Association; International Municipal Lawyers Association;
National Association of College and University Business Officers;
National Association of Counties; National Association of Health and
Educational Facilities Finance Authorities; National Association of
State Auditors, Comptrollers, and Treasurers; National Association of
State Treasurers; National League of Cities; and the U.S. Conference of
Mayors. I urge my colleagues to join these organizations in supporting
our bill, to ensure that small municipalities across the country are
able to finance critical infrastructure projects at reduced costs to
their residents.
Mr. President, I ask unanimous consent that the text of the bill be
printed in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:

S. 1016

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 ``Municipal Bond Market
Support Act of 2011''.

SEC. 2. PERMANENT MODIFICATION OF SMALL ISSUER EXCEPTION TO
TAX-EXEMPT INTEREST EXPENSE ALLOCATION RULES
FOR FINANCIAL INSTITUTIONS.

(a) Permanent Increase in Limitation.--Subparagraphs
(C)(i), (D)(i), and (D)(iii)(II) of section 265(b)(3) of the
Internal Revenue Code of 1986 are each amended by striking
``$10,000,000'' and inserting ``$30,000,000''.
(b) Permanent Modification of Other Special Rules.--
Paragraph (3) of section 265(b) of the Internal Revenue Code
of 1986 is amended--
(1) by redesignating clauses (iv), (v), and (vi) of
subparagraph (G) as clauses (ii), (iii), and (iv) of such
subparagraph, respectively, and
(2) by striking so much of subparagraph (G) as precedes
such clauses and inserting the following:
``(G) Qualified 501(c)(3) bonds treated as issued by exempt
organization.--In the case of a qualified 501(c)(3) bond (as
defined in section 145), this paragraph shall be applied by
treating the 501(c)(3) organization for whose benefit such
bond was issued as the issuer.
``(H) Special rule for qualified financings.--
``(i) In general.--In the case of a qualified financing
issue--

``(I) subparagraph (F) shall not apply, and
``(II) any obligation issued as a part of such issue shall
be treated as a qualified tax-exempt obligation if the
requirements of this paragraph are met with respect to each
qualified portion of the issue (determined by treating each
qualified portion as a separate issue which is issued by the
qualified borrower with respect to which such portion
relates).''.

(c) Inflation Adjustment.--Paragraph (3) of section 265(b)
of the Internal Revenue Code of 1986, as amended by
subsection (b), is amended by adding at the end the following
new subparagraph:
``(I) Inflation adjustment.--In the case of any calendar
year after 2011, the $30,000,000 amounts contained in
subparagraphs (C)(i), (D)(i), and (D)(iii)(II) shall each be
increased by an amount equal to--
``(i) such dollar amount, multiplied by
``(ii) the cost-of-living adjustment determined under
section 1(f)(3) for such calendar year, determined by
substituting `calendar year 2010' for `calendar year 1992' in
subparagraph (B) thereof.

Any increase determined under the preceding sentence shall be
rounded to the nearest multiple of $100,000.''.
(d) Effective Date.--The amendments made by this section
shall apply to obligations issued after the date of the
enactment of this Act.

____________________