[Congressional Record (Bound Edition), Volume 145 (1999), Part 5]
[Senate]
[Pages 7159-7182]
[From the U.S. Government Publishing Office, www.gpo.gov]




                  OTAY MOUNTAIN WILDERNESS ACT OF 1999

  Mrs. FEINSTEIN. Mr. President, I rise today to introduce the Otay 
Mountain Wilderness Act of 1999. This bill would designate an 18,500 
acre portion of the Otay Mountain region in Southern California as 
wilderness. The bill passed the House last week on a voice vote, with 
broad bi-partisan support.
  Otay Mountain, which is located near the U.S.-Mexico border in 
eastern San Diego County, is one of California's most special wild 
places. The mountain is a unique ecosystem, home to 20 sensitive plant 
and animal species. The endangered quino checkerspot butterfly calls 
Otay Mountain home, and the only known stand of Tecate cypress, as well 
as the only known population of the Mexican flannel bush, also thrive 
on the mountain. For these reasons, the U.S. Bureau of Land Management 
first recommended Otay Mountain for wilderness designation in the 
1980s.
  In addition, Otay Mountain is key to San Diego County's habitat 
conservation planning efforts. The County has identified the region as 
a core reserve in the multi-species habitat conservation plan that it 
is currently developing.
  Otay Mountain is scenic, rugged, and beautiful. The area is well 
worth preserving as wilderness for generations to come. This bill will 
ensure that San Diegans, and indeed all Americans, will be able to 
experience and enjoy Otay Mountain in all its unique splendor.
  Unfortunately, in recent years Otay Mountain's sensitive habitat has 
been damaged by illegal immigration and narcotics activity in the area. 
The U.S. Bureau of Land Management has worked closely with the U.S. 
Border Patrol to bring these problems under control, and they have 
experienced great success. This legislation would specifically allow 
Border Patrol and firefighting activities to continue in the new 
wilderness area, so long as they remain in accordance with the 1964 
Wilderness Act. This provision in the legislation is specific to Otay 
Mountain and will not apply to any other wilderness area.
  I want to thank Congressman Brian Bilbray for his leadership in 
introducing the Otay Mountain Wilderness Act and guiding it through the 
House of Representatives. I also want to thank Congressman Filner, who 
has been a steadfast supporter of the legislation, along with the 
Clinton Administration. The California Departments of Fish and Game and 
Fire and Forestry Protection support the bill, as do the Endangered 
Habitats League and other environmental groups. Finally, the bill has 
strong support from the San Diego County Board of Supervisors and the 
San Diego Association of Governments.
  Mr. President, I hope that the Senate will move expeditiously to 
approve the Otay Mountain Wilderness Act and send the bill to the 
President for signature.
  Mr. President, I ask unanimous consent that the text of the bill be 
printed in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                 S. 848

       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 ``Otay Mountain Wilderness Act 
     of 1999''.

     SEC. 2. FINDINGS.

       Congress finds that--
       (1) the public land in the Otay Mountain region of 
     California is one of the last remaining pristine locations in 
     western San Diego County, California;
       (2) this rugged mountain adjacent to the United States-
     Mexico border is internationally known for having a diversity 
     of unique and sensitive plants;
       (3) this area plays a critical role in San Diego's multi-
     species conservation plan, a national model made for 
     maintaining biodiversity;
       (4) due to the proximity of the Otay Mountain region to the 
     international border, this area is the focus of important law 
     enforcement and border interdiction efforts necessary to 
     curtail illegal immigration and protect the area's wilderness 
     values; and
       (5) the illegal immigration traffic, combined with the 
     rugged topography, present unique fire management challenges 
     for protecting lives and resources.

     SEC. 3. DEFINITIONS.

       In this Act:
       (1) Public land.--The term ``public land'' has the meaning 
     given the term ``public lands'' in section 103 of the Federal 
     Land Policy and Management Act of 1976 (43 U.S.C. 1702).
       (2) Secretary.--The term ``Secretary'' means the Secretary 
     of the Interior.
       (3) Wilderness area.--The term ``Wilderness Area'' means 
     the Otay Mountain Wilderness designated by section 4.

     SEC. 4. DESIGNATION.

       (a) In General.--In accordance with the Wilderness Act (16 
     U.S.C. 1131 et seq.), there is designated as wilderness and 
     as a component of the National Wilderness Preservation System 
     certain public land in the California Desert District of the 
     Bureau of Land Management, California, comprising 
     approximately 18,500 acres as generally depicted on a map 
     entitled ``Otay Mountain Wilderness'' and dated May 7, 1998.
       (b) Otay Mountain Wilderness.--The area designated under 
     subsection (a) shall be known as the Otay Mountain 
     Wilderness.

     SEC. 5. MAP AND LEGAL DESCRIPTION.

       (a) In General.--As soon as practicable after the date of 
     enactment of this Act, a map and a legal description for the 
     Wilderness Area shall be filed by the Secretary with--
       (1) the Committee on Energy and Natural Resources of the 
     Senate; and
       (2) the Committee on Resources of the House of 
     Representatives.
       (b) Force and Effect.--The map and legal description shall 
     have the same force and effect as if included in this Act, 
     except that the Secretary, as appropriate, may correct 
     clerical and typographical errors in the map and legal 
     description.
       (c) Availability.--The map and legal description for the 
     Wilderness Area shall be on file and available for public 
     inspection in the offices of the Director and California 
     State Director of the Bureau of Land Management.
       (d) United States-Mexico Border.--In carrying out this 
     section, the Secretary shall ensure that the southern 
     boundary of the Wilderness Area is--
       (1) 100 feet north of the trail depicted on the map 
     referred to in subsection (a); and
       (2) not less than 100 feet from the United States-Mexico 
     international border.

     SEC. 6. WILDERNESS REVIEW.

       All public land not designated as wilderness within the 
     boundaries of the Southern Otay Mountain Wilderness Study 
     Area (CA-060-029) and the Western Otay Mountain Wilderness 
     Study Area (CA-060-028) managed by the Bureau of Land 
     Management and reported to the Congress in 1991--
       (1) have been adequately studied for wilderness designation 
     under section 603 of the Federal Land Policy and Management 
     Act of 1976 (43 U.S.C. 1782); and
       (2) shall no longer be subject to the requirements 
     contained in section 603(c) of that Act pertaining to the 
     management of wilderness study areas in a manner that does 
     not impair the suitability of those areas for preservation as 
     wilderness.

     SEC. 7. ADMINISTRATION OF WILDERNESS AREA.

       (a) In General.--Subject to valid existing rights and to 
     subsection (b), the Wilderness Area shall be administered by 
     the Secretary in accordance with the Wilderness Act (16 
     U.S.C. 1131 et seq.), except that for the purposes of the 
     Wilderness Area--
       (1) any reference in that Act to the effective date of that 
     Act shall be considered to

[[Page 7160]]

     be a reference to the effective date of this Act; and
       (2) any reference in that Act to the Secretary of 
     Agriculture shall be considered to be a reference to the 
     Secretary of the Interior.
       (b) Border Enforcement, Drug Interdiction, and Wildland 
     Fire Protection.--Because of the proximity of the Wilderness 
     Area to the United States-Mexico international border, drug 
     interdiction, border operations, and wildland fire management 
     operations are common management actions throughout the area 
     encompassing the Wilderness Area. This Act recognizes the 
     need to continue such management actions so long as such 
     management actions are conducted in accordance with the 
     Wilderness Act (16 U.S.C. 1131 et seq.) and are subject to 
     such conditions as the Secretary considers appropriate.

     SEC. 8. FURTHER ACQUISITIONS.

       Any land within the boundaries of the Wilderness Area that 
     is acquired by the United States after the date of enactment 
     of this Act shall--
       (1) become part of the Wilderness Area; and
       (2) be managed in accordance with this Act and other laws 
     applicable to wilderness areas.

     SEC. 9. NO BUFFER ZONES.

       (a) In General.--The designation of the Wilderness Area by 
     this Act shall not lead to the creation of protective 
     perimeters or buffer zones outside the boundary of the 
     Wilderness Area.
       (b) Nonwilderness Activities.--The fact that nonwilderness 
     activities or uses can be seen or heard from areas within the 
     Wilderness Area shall not, in and of itself, preclude 
     nonwilderness activities or uses outside the boundary of the 
     Wilderness Area.
                                 ______
                                 
      By Mr. BINGAMAN:
  S. 849. A bill to amend the Public Health Service Act to provide 
grant programs for youth substance abuse prevention and treatment; to 
the Committee on Health, Education, Labor, and Pensions.


           youth substance abuse prevention and treatment act

  Mr. Bingaman. Mr. President, I rise today to introduce the Youth 
Substance Abuse Prevention and Treatment Act. This bill is designed to 
increase access to drug prevention and treatment services for our 
nation's youth. It also provides for critical training of health care 
professionals who work tirelessly with young people with drug problems.
  Nationwide only 20% of the 648,000 youth with severe substance use or 
dependency receive treatment. The statistics tell the tale and it is an 
unacceptable story.
  Heroin use has doubled among teenagers in the 1990's.
  More than 50% of 12th graders have tried an illicit drug.
  In senior high schools across the country, 25% of students use an 
illicit drug on a monthly basis, and by the 12th grade, more than 
three-fourths of students have used alcohol, and over 30 percent are 
binge drinkers (more than five drinks at a sitting).
  By the time they are seniors, almost one in four teens are current 
marijuana users and 1 in 20 use every day and this number is on the 
rise.
  Studies have also indicated that youth who have used marijuana and 
other drugs in the past year were more likely than non-users to report 
problem behaviors including running away from home, stealing, skipping 
school, selling drugs, drunkdriving, and considering suicide.
  Over the past several months, I have had the opportunity to hear 
first hand about the drug problem in New Mexico and the barriers for 
providing services that confront health care professionals and families 
everyday.
  Drug use seems to be more common among youth in New Mexico than 
nationally. In fact, most underage teens in New Mexico drink alcohol; 
over one-third of seventh grade students and over three-fourths of 12th 
grade student reported drinking alcohol. Eighteen percent of 8th 
graders in New Mexico used illegal drugs other than marijuana in the 
past year compared to 12% nationally. In my state, ninth graders' 
illicit drug use has been increasing. This trend is of great concern 
because we also know that the younger people begin to use drugs or 
alcohol, the greater the chance they will continue to use drugs as 
adults.
  With drug and alcohol use come other problem behaviors, violence, 
property damage, and threatening behavior; and in New Mexico these 
behaviors occur at a greater frequency than the national rates. In 
fact, nationally, the majority of teens enter substance abuse treatment 
only after they have had contact with juvenile justice authorities.
  There is another significant problem confronting our nation. Illicit 
drug use among Native American youth is very high. According to Bureau 
of Indian Affairs officials, alcohol-related automobile accidents are 
the leading cause of death among Native American youth. We must address 
this issue.
  The Youth Substance Abuse Prevention and Treatment Act provides funds 
for:
  School-based community after-school prevention programs; schools and 
health providers working hand-in-hand with students and families to 
assure early identification and referral for at-risk students.
  This bill also provides funding for youth treatment and encourages 
the use of community-based wrap around services.
  This measure also includes special provisions for youth who live in 
rural areas as well as for Native Americans. These two youth 
populations are particularly suffering from a serious lack of 
prevention and treatment services.
  The Director of the National Institute of Drug Abuse, Dr. Alan 
Leschner has stated that addiction is a treatable disease. While there 
have been advances in the prevention and treatment of substance abuse, 
dissemination of this valuable and potentially life-saving information 
is not consistently getting out to grassroots health care providers. 
That is why this legislation also assists healthcare professionals in 
accessing the latest information on emerging drug threats and the most 
recent advances in prevention and treatment techniques.
  I am especially concerned with rural and remote areas where health 
care professionals may have to travel hours to attend a conference, 
many times on their limited time off.
  The evidence in support of prevention and treatment is overwhelming; 
both in social and economic terms. Several studies have demonstrated 
that for every dollar spent on drug treatment the community gets back 
anywhere from six to seven dollars in reduced crime, and other lowered 
social costs. For youth especially, we see improved school attendance, 
better grades, and a reduction in violent and other anti-social 
behaviors.
  There is one other benefit that is derived from adequately treating 
young people; when we help these young people, they are healthier and 
happier. We cannot forget the personal and family tragedy associated 
when youth are involved with drugs.
  I recognize that this bill does not provide the entire solution, but 
it is a necessary step in addressing this national problem. I am 
committed to solving the problem of inadequate access to drug 
prevention and treatment services for all young people. I welcome my 
colleagues to work with me to ensure that all American youth who need 
access to these services, have the opportunity to pursue their dreams 
and when they stumble, we are there as a community to help. That is 
what this bill is all about and I ask my colleagues for their support.
  Mr. President, I ask unanimous consent to have the text of the Youth 
Substance Abuse Prevention and Treatment Act printed in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                 S. 849

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

     SEC. 1. SHORT TITLE.

       This Act may be cited as the ``Youth Substance Abuse 
     Prevention and Treatment Act''.

     SEC. 2. GRANT PROGRAMS.

       Title V of the Public Health Service Act (42 U.S.C. 290aa 
     et seq.) is amended by adding at the end the following:

     ``PART G--COMPETITIVE GRANT PROGRAMS FOR YOUTH SUBSTANCE 
                   ABUSE PREVENTION AND TREATMENT

     ``SEC. 581. GRANTS TO CONSORTIA.

       ``(a) In General.--The Secretary shall award grants on a 
     competitive basis to eligible consortia to enable such 
     consortia to establish the programs described in subsection 
     (c).

[[Page 7161]]

       ``(b) Priority.--In awarding grants under subsection (a), 
     the Secretary shall give priority to applications from 
     eligible consortia that provide services in rural areas or 
     for Native Americans.
       ``(c) Use of Funds.--An eligible consortium receiving 
     amounts under subsection (a) shall use such amounts to 
     establish school-based substance abuse prevention and student 
     assistance programs for youth, including after school 
     programs, to provide services that address youth substance 
     abuse, including services that--
       ``(1) identify youth at risk for substance abuse;
       ``(2) refer any youth at risk for substance abuse for 
     substance abuse treatment;
       ``(3) provide effective primary prevention programing;
       ``(4) target underserved areas, such as rural areas; and
       ``(5) target populations, such as Native Americans, that 
     are underserved.
       ``(d) Application.--An eligible consortium that desires a 
     grant under subsection (a) shall submit an application to the 
     Secretary at such time, in such manner, and containing such 
     information as the Secretary may require.
       ``(e) Report.--Not later than 1 year after the date of 
     enactment of this section and annually thereafter, an 
     eligible consortium receiving a grant under subsection (a) 
     shall submit to the Secretary a report describing the 
     programs carried out pursuant to this section.
       ``(f) Definitions.--In this section:
       ``(1) Eligible consortium.--The term `eligible consortium' 
     means an entity composed of a local educational agency and 
     community-based substance abuse prevention providers and 
     student assistance providers in which the agency and 
     providers maintain equal responsibility in providing the 
     services described in subsection (c).
       ``(2) Local educational agency.--The term `local 
     educational agency' has the meaning given such term in 
     section 14101 of the Elementary and Secondary Education Act 
     of 1965 (20 U.S.C. 8801).
       ``(g) Authorization of Appropriations.--There is authorized 
     to be appropriated to carry out this section, $15,000,000 for 
     each of fiscal years 2000 through 2004.

     ``SEC. 582. GRANTS TO TREATMENT FACILITIES.

       ``(a) In General.--The Secretary shall award grants on a 
     competitive basis to inpatient and outpatient treatment 
     facilities that provide the substance abuse treatment 
     services described in subsection (d).
       ``(b) Eligible Applicant.--To be eligible to receive a 
     grant under subsection (a), a treatment facility must provide 
     or propose to provide alcohol or drug treatment services for 
     individuals under the age of 22 years.
       ``(c) Priority.--In awarding grants under subsection (a), 
     the Secretary shall give priority to applications from 
     treatment facilities that provide treatment services in rural 
     areas, for Native Americans, or for underserved populations.
       ``(d) Use of Funds.--A treatment facility receiving amounts 
     under subsection (a) shall use such amounts to provide 
     substance abuse treatment services for youth, including 
     community-based aftercare services that provide treatment for 
     the period of time following an individual's discharge from a 
     drug treatment center.
       ``(e) Application.--A treatment facility that desires a 
     grant under subsection (a) shall submit an application to the 
     Secretary at such time, in such manner, and containing such 
     information as the Secretary may require.
       ``(f) Report.--Not later than 1 year after the date of 
     enactment of this section and annually thereafter, a 
     treatment facility receiving a grant under subsection (a) 
     shall submit to the Secretary a report describing the 
     services provided pursuant to this section.
       ``(g) Authorization of Appropriations.--There is authorized 
     to be appropriated to carry out this section, $15,000,000 for 
     each of the fiscal years 2000 through 2004.

     ``SEC. 583. GRANTS TO SUBSTANCE ABUSE PREVENTION AND 
                   TREATMENT PROVIDERS.

       ``(a) In General.--The Secretary shall award grants on a 
     competitive basis to State and local substance abuse 
     prevention and treatment providers to enable such providers 
     to offer training to provide prevention and treatment 
     services for youth.
       ``(b) Priority.--In awarding grants under subsection (a), 
     the Secretary shall give priority to applications from areas 
     in which--
       ``(1) there is a demonstrated high rate of substance abuse 
     by youth; and
       ``(2) the population is identified as underserved or the 
     prevention and treatment providers in the area use distance 
     learning.
       ``(c) Application.--A treatment provider that desires a 
     grant under subsection (a) shall submit an application to the 
     Secretary at such time, in such manner, and containing such 
     information as the Secretary may require.
       ``(d) Report.--Not later than 1 year after the date of 
     enactment of this section and annually thereafter, a 
     treatment provider receiving a grant under subsection (a) 
     shall submit to the Secretary a report describing the 
     services provided pursuant to this section.
       ``(e) Authorization of Appropriations.--There is authorized 
     to be appropriated to carry out this section, $2,000,000 for 
     each of the fiscal years 2000 through 2004.
                                 ______
                                 
      By Mrs. BOXER:
  S. 850. A bill to make schools safer by waiving the local matching 
requirement under the Community Policing program for the placement of 
law enforcement officers in local schools; to the Committee on the 
Judiciary.


                      cops in schools act of 1999

  Mrs. BOXER. Mr. President, today we are faced again with an tragedy 
in one of America's schools. There are many things that schools are and 
could be doing to prevent violence--and many ways the federal 
government could help. But, today, I am going to speak to just one of 
them.
  Under the COPS program--President Clinton's initiative to put 100,000 
new police officers on our streets--local governments are required to 
provide 25 percent of the funding. But, the Attorney General has the 
authority to waive the local matching requirement for any reason.
  Last summer, I called on the Justice Department to establish a 
blanket waiver policy for any local community that wanted to place a 
law enforcement officer in a public school. To its credit, the 
Department has done so in some cases, and it says it will continue to 
do so on a case-by-case basis.
  But, Mr. President, that is not good enough. We need to tell our 
local communities that the local match will be waived, period, for any 
new police officer hired to be in the schools. I have again called on 
the Administration to establish such a waiver policy--and to tell our 
local communities about it. Just in case, however, I am also 
introducing legislation today--the COPS in Schools Act--to require a 
waiver.
  I am not advocating putting police officers in the schools just to 
patrol. Nor do I want people to think our schools are or should be 
jails or combat zones. Police officers in schools are important to work 
with school staff to develop anti-crime policies on campus, to 
implement procedures to ensure a safer school environment, and to 
reassure parents that a police officer is there to deal with those 
students that might cause problems.
  Children in public schools have a right to be safe, and it is our 
obligation to ensure their safety. It is as fundamental as the right to 
a free public education. Let's not wait for yet another tragedy to get 
adequate protection for America's school children. My bill is a small 
step, and it is not the only step we need to take. But, it can help to 
reduce the chance of more bloodshed at yet another school.
                                 ______
                                 
      By Mr. CHAFEE (for himself and Mr. Moynihan)
  S. 851. A bill to allow Federal employees to take advantage of the 
transportation fringe benefit provisions of the Internal Revenue Code 
that are available to private sector employees; to the Committee on 
Governmental Affairs.


                FEDERAL EMPLOYEE FLEXIBILITY ACT OF 1999

  Mr. CHAFEE. Mr. President, I rise today to introduce, with Senator 
Moynihan, the Federal Employee Flexibility Act of 1999, a bill that 
would provide flexibility and choices for Federal employees.
  This flexibility was provided to private sector employees in the 
Taxpayer Relief Act of 1997 and the Transportation Equity Act for the 
21st Century (TEA 21). We believe that these provisions provide to 
employers and employees important new flexibility which should reduce 
single occupant vehicle trips from our highways and therefore 
contribute to reduced congestion, a cleaner environment, and increased 
energy conservation.
  The Taxpayer Relief Act of 1997 and the Transportation Equity Act for 
the 21st Century include significant changes to the way the Internal 
Revenue Code treats employer-provided transportation fringe benefits. 
Unfortunately, we have become aware that personnel compensation law for 
Federal employees restricts implementation of this new flexibility.
  Prior to enactment of these two bills, the Federal tax code provided 
that employer-provided parking is not subject to Federal taxation, up 
to $170 per

[[Page 7162]]

month. However, this tax exemption was lost for all employees if the 
parking was offered in lieu of compensation for just one employee. In 
other words, if an employer gave just one employee a choice between 
parking and some other benefit (such as a transit pass, or increased 
salary), the parking of all other employees in the company became 
taxable. It goes without saying that no employers jeopardized a tax 
benefit for the overwhelming majority of their employees to provide 
flexibility to others. In effect, the tax code prohibited employers 
from offering their employees a choice. Parking was a take-it or leave-
it benefit.
  The changes in these two laws make it possible for employers to offer 
their employees more choices by eliminating the take-it or leave-it 
restriction in the Federal tax code. Employees whose only 
transportation benefit is parking can now instead accept a salary 
enhancement, and find other means to get to work such as car pooling, 
van pooling, biking, walking, or taking transit.
  Unfortunately, Federal employees will not be able to benefit from the 
increased flexibility available to private sector employees, unless 
Federal compensation law is modified. Current Federal law provides that 
a Federal employee may not receive additional pay unless specifically 
authorized by law. Therefore, a Federal employee could not ``cash out'' 
a parking space at work, and instead receive cash or other benefits.
  To address this limitation for transit passes and similar benefits, 
the ``Federal Employees Clean Air Incentives Act'' enacted in 1993 
allows the Federal government to provide transit benefits, bicycle 
services, and non-monetary incentives to employees. However, when this 
legislation was enacted, the Federal tax code prohibited the so-called 
``cash out'' option discussed above, and therefore was not included in 
the list of transportation-related exemptions in that statute.
  The short and simple bill we introduce today would add ``taxable cash 
reimbursement for the value of an employer-provided parking space'' to 
the list of benefits that can be received by Federal employees.
  This bill is very similar to a bill Senator Moynihan and I sponsored 
in the 105th Congress, S. 2575 and H.R. 4777 sponsored in the House by 
Representatives Norton, Nadler, Morella, and Moran. These same House 
colleagues are today introducing a bill identical to the bill we 
introduce today.
  Let me assure my colleagues and Federal employees that this bill 
would not require that Federal employees lose their parking spaces, as 
may be feared when there is discussion of Federal employee parking 
spaces. The bill simply provides Federal employees the same flexibility 
that is available to private sector employees. Employees who want to 
retain their tax-free parking space would be free to do so.
  We think it is vital that the Federal government show leadership on 
the application of new and innovative ways to solve our transportation 
and environmental problems. I hope that my colleagues will join me in 
supporting this bill and that we can act swiftly on it in this session 
of Congress.
  Mr. President, I ask that the text of the bill be inserted in the 
Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                 S. 851

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

     SECTION 1. CASH PAYMENT TO FEDERAL EMPLOYEES FOR PARKING 
                   SPACES.

       (a) Short Title.--This Act may be cited as the ``Federal 
     Employee Flexibility Act of 1999''.
       (b) In General.--Section 7905 of title 5, United States 
     Code, is amended--
       (1) in subsection (a)--
       (A) in paragraph (2)(C) by inserting ``and'' after the 
     semicolon;
       (B) in paragraph (3) by striking ``; and'' and inserting a 
     period; and
       (C) by striking paragraph (4); and
       (2) in subsection (b)(2)--
       (A) by amending subparagraph (A) to read as follows:
       ``(A) a qualified transportation fringe as defined in 
     section 132(f)(1) of the Internal Revenue Code of 1986;'';
       (B) in subparagraph (B) by striking ``and'' after the 
     semicolon;
       (C) in subparagraph (C) by striking the period and 
     inserting a semicolon and ``and''; and
       (D) by adding at the end the following:
       ``(D) taxable cash payment to an employee in lieu of an 
     agency-provided parking space.''.
                                 ______
                                 
      By Mrs. FEINSTEIN:
  S. 852. A bill to award grants for school construction; to the 
Committee on Health, Education, Labor, and Pensions.


                  excellence in education act of 1999

  Mrs. FEINSTEIN. Mr. President, today I am introducing a bill to 
provide funds to build new schools. It is the Excellence in Education 
Act of 1999.
  The purpose of this bill is to (1) reduce the size of schools and (2) 
reduce the size of classes. The bill would create a 50-50 matching 
grant program to build new schools to meet the following size 
requirements:
  School size requirement:
  for kindergarten through 5th grade, not more than 500 students;
  for grades 6 through 8, not more than 750 students; and
  for grades 9 through 12, not more than 1,500 students.
  Class size requirement:
  for kindergarten through grade 6, not more than 20 students per 
teacher;
  for grades 7 through 12, not more than 28 students per teacher.
  The bill authorizes $5 billion each year for the next five years for 
the U.S. Department of Education to award grants to local school 
districts. School districts would have to match federal funds with an 
equal amount. In addition to making the above reductions, school 
districts would be required to terminate social promotion, provide 
remedial education and require that students be subject to state 
achievement standards in the core academic curriculum.
  Why do we need this bill?
  First, many of our schools are just too big, especially in urban 
areas. The ``shopping mall'' high school is all too common. ``It's not 
unusual to find high schools of 2,000, 3,000, or even 4,000 students 
and junior high schools of 1,500 or more, especially in urban school 
systems,'' writes Thomas Toch in the Washington Post. In these 
monstrous schools, the principal is just a disembodied voice over the 
public address system.
  Equally serious is the fact that our classes are too big. Even though 
we have begun to reduce class sizes in my state, California still has 
some of the largest class sizes in the U.S. The National Center for 
Education Statistics says California's classrooms have the highest 
pupil-teacher ratios in the nation.
  This bill will provide a new funding source for school districts or 
states to match to build new schools and reduce both school size and 
class size. There is no good estimate of how many schools would be 
needed to reduce schools and classes to the levels specified in the 
amendment, but we all know that there are many large schools and large 
classes in public education today.
  The U.S. Department of Education estimates that we need to build 
6,000 new schools just to meet enrollment growth projections. This 
estimate does not take into account the need to cut class and school 
sizes. The needs are no doubt huge.
  My state that has some of the largest schools in the country. Our 
students are crammed into every available space, even in cafeterias and 
libraries. Today, 20 percent of our students are in portable 
classrooms. There were 63,000 relocatable classrooms in use in 1998. 
Here are some examples:
  High Schools:
  Roosevelt High School (Los Angeles), 4,902;
  Huntington Park High School, 4,275;
  Roosevelt High School, Fresno, 3,692;
  Berkeley High School, Berkeley, 3,025; and
  Mt. Carmel High School, San Diego, 3,279.
  Intermediate Schools:
  Clark Intermediate School, Clovis, 2,744 students;
  Gianni Middle School, San Francisco, 1,336; and
  O'Farrell Middle School, San Diego, 1,441.

[[Page 7163]]

  Elementary Schools:
  Rosa Parks Elementary School, San Diego, 1,423;
  Winchell Elementary School Fresno, 1,392;
  Zamorano Elementary School, San Diego, 1,424; and
  Kerman/Floyd Elementary School, Fresno, 1,000.
  California also has some of the largest classes sizes in the nation. 
In 1996-1997, California had the second highest teacher-pupil ratio in 
the nation, at 22.8 students per teacher. Fortunately since 1996, the 
state has significantly cut class sizes in grades K-3, but 15 percent 
or 300,000 of our K-3 students have not benefitted from this reform. 
And students above grade 3 have not been touched.
  Here are some examples of classes in my state:
  Fourth grade, statewide, 29 students; sixth grade, statewide, 29.5 
students.
  National City Middle School San Diego, English and math, 34 to 36 
students.
  Berryessa School District in San Jose--fourth grade, 32 students; 
eighth grade, 31 students.
  Long Beach and El Cajon School Districts, tenth grade English, 35 
students.
  Santa Rosa School District--fourth grade, 32 students.
  San Diego City Schools, tenth grade biology, 38 students.
  Hoover Elementary and Knox Elementary in E. San Diego Elementary, 
grades 5 and 6, 31 to 33 students.
  Hoover High School 10th grade Algebra, 39 students.
  To add to the problem, California will have a school enrollment rate 
between 1997 and 2007 of 15.7 percent, triple the national rate of 4.1 
percent. We will have the largest enrollment increase of all states 
during the next ten years. By 2007, our enrollment will have increased 
by 35.3 percent. To put it another way, California needs to build seven 
new classrooms a day at 25 students per class just to keep up with the 
surge in student enrollment. The California Department of Education 
says that we need to add about 327 schools over the next three years, 
just to keep pace with the projected growth.
  The cost of building a high school in California is almost twice the 
national cost. The U.S. average is $15 million; in California, it is 
$27 million. In California, our costs are higher than other states in 
part because our schools must be built to withstand earthquakes, 
floods, El Nino and a myriad of other natural disasters. California's 
state earthquake building standards add 3 to 4 percent to construction 
costs. Here's what it costs to build a schools in California: an 
elementary school (K-6), $5.2 million; a middle school (7-8), $12.0 
million; a high school (9-12), $27.0 million.
  Studies show that student achievement improves when school and class 
sizes are reduced.
  The American Education Research Association says that the ideal high 
school size is between 600 and 900 students. Study after study shows 
that small schools have more learning, fewer discipline problems, lower 
dropout rates, higher levels of student participating, higher 
graduation rates (The School Administrator, October 1997). The nation's 
school administrators are calling for more personalized schools.
  California's education reforms relied on a Tennessee study called 
Project STAR, in which 6,500 kindergartners were put in 330 classes of 
different sizes. The students stayed in small classes for four years 
and then returned to larger ones in the fourth grade. The test scores 
and behavior of students in the small classes were better than those of 
children in the larger classes. A similar 1997 study by Rand found that 
smaller classes benefit students from low-income families the most.
  Take the example of Sandy Sutton, a teacher in Los Angeles's Hancock 
Park Elementary School. She used to have 32 students in her second 
grade class. In the fall of 1997, she had 20. She says she can spend 
more time on individualized reading instruction with each student. She 
can now more readily draw out shy children and more easily identify 
slow readers early in the school year.
  The November 25, 1997, Sacramento Bee reported that when teachers in 
the San Juan Unified School Districts started spending more time with 
students, test scores rose and discipline problems and suspensions 
dropped. A San Juan teacher, Ralphene Lee, said, ``This is the most 
wonderful thing that has happened in education in my lifetime.''
  A San Diego initiative to bring down class sizes found that smaller 
classes mean better classroom management; more individual instruction; 
more contact with parents; more time for team teaching; more diverse 
instructional methods; and a higher morale.
  Teachers say that students in smaller classes pay better attention, 
ask more questions and have fewer discipline problems. Smaller schools 
and smaller classes make a difference, it is clear.
  My state needs a total of $34 billion to build schools from 1998 to 
2008. Of this, $26 billion is needed to modernize and repair existing 
schools and $8 billion is needed to build schools to meet enrollment 
growth. In November 1998, California voters approved state bonds 
providing $6.5 billion for school construction.
  California needs to build 7 new classrooms a day at 25 students per 
class between now and 2001 just to keep up with the growth in student 
population. By 2007, California will need 22,000 new classrooms. 
California needs to add about 327 schools over the next three years 
just to keep pace with the projected growth.
  Other bills in the Congress that I am supporting provide tax 
incentives for holders of school bonds to modernize old schools and we 
have many old schools. One third of the nation's 110,000 schools were 
built before World War II and only about one of 10 schools was built 
since 1980. More than one-third of the nation's existing schools are 
currently over 50 or more years old and need to be repaired or 
replaced. The General Accounting Office has said that nationally we 
need over $112 billion for construction and repairs to bring schools up 
to date.
  Big schools and big classes place a heavy burden on teachers and 
students. They can be a stressful learning environment.
  The American public supports increased federal funding for school 
construction. The Rebuild American Coalition last month announced that 
82 percent of Americans favor federal spending for school construction, 
up from 74 percent in a 1998 National Education Association poll.
  Every parent knows the importance of a small class where the teacher 
can give individualized attention to a student. Every parent knows the 
importance of the sense of a school community that can come with a 
small school.
  I hope my colleagues will join me today in passing this important 
education reform.
  Mr. President, I ask unanimous consent that the text of the bill and 
a summary be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                 S. 852

       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 ``Excellence in Education Act 
     of 1999''.

     SEC. 2. DEFINITIONS

       In this Act:
       (1) Core curriculum.--The term ``core curriculum'' means 
     curriculum in subjects such as reading and writing, language 
     arts, mathematics, social sciences (including history), and 
     science.
       (2) Elementary school; local educational agency; secondary 
     school; secretary.--The terms ``elementary school'', ``local 
     educational agency'', ``secondary school'' and ``Secretary'' 
     have the meanings given the terms in section 14101 of the 
     Elementary and Secondary Education Act of 1965 (20 U.S.C. 
     8801).
       (3) Practice of social promotion.--The term ``practice of 
     social promotion'' means a formal or informal practice of 
     promoting a student from the grade for which the 
     determination is made to the next grade when the student 
     fails to meet State achievement standards in the core 
     academic curriculum, unless the practice is consistent with 
     the student's individualized education program under section 
     614(d) of the Individuals with Disabilities Education Act (20 
     U.S.C. 1414(d)).

[[Page 7164]]

       (4) Construction.--
       (A) In general.--Subject to subparagraph (B), the term 
     ``construction'' means--
       (i) preparation of drawings and specifications for school 
     facilities;
       (ii) building new school facilities, or acquiring, 
     remodeling, demolishing, renovating, improving, or repairing 
     facilities to establish new school facilities; and
       (iii) inspection and supervision of the construction of new 
     school facilities.
       (B) Rule.--An activity described in subparagraph (A) shall 
     be considered to be construction only if the labor standards 
     described in section 439 of the General Education Provisions 
     Act (20 U.S.C. 1232b) are applied with respect to such 
     activity.
       (5) School facility.--The term ``school facility'' means a 
     public structure suitable for use as a classroom, laboratory, 
     library, media center, or related facility the primary 
     purpose of which is the instruction of public elementary 
     school or secondary school students. The term does not 
     include an athletic stadium or any other structure or 
     facility intended primarily for athletic exhibitions, 
     contests, or games for which admission is charged to the 
     general public.

     SEC. 3. AUTHORIZATION OF APPROPRIATIONS.

       There are authorized to be appropriated to carry out this 
     Act $5,000,000,000 for each of the fiscal years 2000 through 
     2004.

     SEC. 4. PROGRAM AUTHORIZED.

       The Secretary is authorized to award grants to local 
     educational agencies to enable the local educational agencies 
     to carry out the construction of new public elementary school 
     and secondary school facilities.

     SEC. 5. CONDITIONS FOR RECEIVING FUNDS.

       In order to receive funds under this Act a local 
     educational agency shall meet the following requirements:
       (1) Reduce class and school sizes for public schools served 
     by the local educational agency as follows:
       (A) Limit class size to an average student-to-teacher ratio 
     of 20 to 1, in classes serving kindergarten through grade 6 
     students, in the schools served by the agency.
       (B) Limit class size to an average student-to-teacher ratio 
     of 28 to 1, in classes serving grade 7 through grade 12 
     students, in the schools served by the agency.
       (C) Limit the size of public elementary schools and 
     secondary schools served by the agency to--
       (i) not more than 500 students in the case of a school 
     serving kindergarten through grade 5 students;
       (ii) not more than 750 students in the case of a school 
     serving grade 6 through grade 8 students; and
       (iii) not more than 1,500 students in the case of a school 
     serving grade 9 through grade 12 students.
       (2) Terminate the practice of social promotion in the 
     public schools served by the agency.
       (3) Require that students be subject to State achievement 
     standards in the core curriculum at key transition points, to 
     be determined by the State, for all kindergarten through 
     grade 12 students.
       (4) Use tests and other indicators, such as grades and 
     teacher evaluations, to assess student performance in meeting 
     the State achievement standards, which tests shall be valid 
     for the purpose of such assessment.
       (5) Provide remedial education for students who fail to 
     meet the State achievement standards, including tutoring, 
     mentoring, summer programs, before-school programs, and 
     after-school programs.
       (6) Provide matching funds, with respect to the cost to be 
     incurred in carrying out the activities for which the grant 
     is awarded, from non-Federal sources in an amount equal to 
     the Federal funds provided under the grant.

     SEC. 6. APPLICATIONS.

       (a) In General.--Each local educational agency desiring to 
     receive a grant under this Act shall submit an application to 
     the Secretary at such time and in such manner as the 
     Secretary may require.
       (b) Contents.--Each application shall contain--
       (1) an assurance that the grant funds will be used in 
     accordance with this Act;
       (2) a brief description of the construction to be 
     conducted;
       (3) a cost estimate of the activities to be conducted; and
       (4) a description of available non-Federal matching funds.
                                  ____


           Summary of the Excellence in Education Act of 1999

       Funds authorized, purpose: Authorizes $20 billion over 5 
     years ($5 billion each year) for the U.S. Department of 
     Education to award grants to local education agencies to 
     construct new school facilities from fiscal year 2000 to 
     2004.
       Eligibility: Local education agencies as defined in 14101 
     of the Elementary and Secondary Education Act of 1965 (public 
     schools).
       Use of funds: Local education agencies are authorized to 
     use funds to construct new school facilities.
       Conditions for receiving funds: As a condition of receiving 
     funds, local education agencies are required to--
       Reduce school and class sizes as follows:
       Limit class size to--
       In the elementary grades to an average student-teacher 
     ratio of 20 to one.
       In grades 7 through 12 to an average student-teacher ratio 
     of 28 to one.
       Limit school size to--
       Elementary schools (K-5): no more than 500 students.
       Middle schools (6-8): no more than 750 students.
       High schools (9-12): no more than 1,500 students.
       Terminate the practice of social promotion;
       Require that students be subject to state academic 
     achievement standards, to be determined by the states, for 
     all K-12 students in the core curriculum, defined as subjects 
     such as reading and writing, language arts, mathematics, 
     social sciences (including history); and science;
       Test student achievement in meeting achievement standards 
     periodically for advancement to the next grade, in at least 
     three grades (such as the 4th, 8th and 12th grades), 
     distributed evenly over the course of a student's education;
       Provide remedial education for students who fail to meet 
     academic achievement standards, including tutoring, 
     mentoring, summer, before-school and after-school programs; 
     and
       Provide matching funds from non-Federal sources in an 
     amount equal to the Federal funds provided under the grant.
                                 ______
                                 
      By Mrs. FEINSTEIN:
  S. 853. A bill to assist local educational agencies to help all 
students achieve State achievement standards, to end the practice of 
social promotion, and for other purposes; to the Committee on Health, 
Education, Labor, and Pensions.


                    STUDENT ACHIEVEMENT ACT OF 1999

  Mrs. FEINSTEIN. Mr. President, today I am introducing legislation to 
end the practice of social promotion in our public schools and to 
provide remedial education to help students meet academic achievement 
standards. The Student Achievement Act of 1999 authorizes $500 million 
for five years for local school districts to provide extended learning 
time so that K-12 students can achieve.
  Social promotion is the formal or informal practice of promoting a 
student from grade to grade even when the student fails to achieve a 
level of achievement and proficiency in the core curriculum.
  To receive funds, schools would have to:
  Adopt a policy prohibiting social promotion;
  Require that students be subject to academic achievement standards in 
the core curriculum, defined as subjects such as reading, writing, 
language arts, mathematics, social sciences and science;
  Test student achievement in meeting standards at certain benchmarks, 
to be determined by the states;
  Provide remedial education; and
  Have substantial numbers of low-performing students.
  I am introducing this bill because I believe that the linchpin to 
educational reform is the elimination of the path of least resistance 
whereby students who are failing are simply promoted to the next grade 
in hopes that they will learn. The product of this practice of simply 
promoting youngsters when they are failing to adequately learn has 
produced a generation of young people who are below standard and high 
school graduates that cannot read or write, count change in their 
pockets or fill out an employment application. It is that bad.
  And my state is just about the worst. There's a steady stream of bad 
news. On March 5, we learned, yet again that California ranks second to 
last among 39 states in fourth-grade reading skills. Eighty percent of 
my state's fourth graders are not proficient readers. For eighth 
graders, California is 33rd out of 36 states and only 22 percent of 
California's eighth graders are proficient readers.
  On March 24, the San Francisco Chronicle reported that the state 
received a grade of D+ from the American Electronics Association for 
the quality and availability of an educated workforce. This conclusion 
is in the state that is the home of Silicon Valley, the premier high-
tech area of the country, in a state that received an A for electronic 
commerce and is number one in high tech employment. But California does 
not have a school system

[[Page 7165]]

that trains students well enough to work in the high-paying, skilled 
jobs available.
  These numbers are a stunning indictment of a failing system.
  It is time to end social promotion, a practice which misleads our 
students, their parents and the public. As long as social promotion 
exists and is widespread, youth who cannot read or write and who won't 
be able to find jobs in the future will continue to graduate from high 
school.
  I agree with the conclusion of the September 1997 study conducted by 
the American Federation of Teachers:

       ``Social promotion is an insidious practice that hides 
     school failure and creates problems for everybody--for kids, 
     who are deluded into thinking they have learned the skills to 
     be successful or get the message that achievement doesn't 
     count; for teachers who must face students who know that 
     teachers wield no credible authority to demand hard work; for 
     the business community and colleges that must spend millions 
     of dollars on remediation, and for society that must deal 
     with a growing proportion of uneducated citizens, unprepared 
     to contribute productively to the economic and civic life of 
     the nation.''

  There is no hard data on the extent of social promotion in our public 
schools, but most authorities, in the schools and out, know that it is 
happening--and in fact, in some districts it is standard operating 
procedure.
  The September AFT study surveyed 85 of the nation's 820 largest 
school districts in 32 states, representing one-third of the nation's 
public school enrollment, about their promotion policies.
  Saying that social promotion is ``rampant,'' AFT leaders found that 
school districts' criteria for passing and retaining students is vague. 
Only 17 states have standards in the four core disciplines (English, 
math, social studies and science) that are well grounded in content and 
that are clear enough to be used.
  A January 14, 1998 Los Angeles Times article reported that four in 10 
teachers said that their schools automatically promote students when 
they reach the maximum age for their grade level.
  None of the districts surveyed by AFT have an explicit policy of 
social promotion, but almost every district has an implicit practice of 
social promotion. Almost all districts view holding students back as a 
policy of last resort and many put explicit limits on retaining 
students. Districts have loose and vague criteria for moving a student 
from one grade to the next. This approach, concludes AFT, is implicit 
approval of social promotion.
  Last fall, thankfully, former California Governor Pete Wilson signed 
into law a bill to end social promotion. In July 1998, I wrote some of 
California's school districts and asked about their policy on social 
promotion. Here are some of the reports I got back:
  Some school districts did not have specific policies in place 
regarding social promotion. Exceptions to normal progression from one 
grade to another may be made when it is ``in the best interest of the 
student.'' Teachers may provide recommendations but final decisions on 
retention are made by the parent of the student.
  In other cases, school districts required students to earn 220 
credits to receive a high school diploma so that the district feels 
that ``social promotion is not an issue.''
  One school district believes that ``it is seldom desirable for a 
student to be retained by reason of achievement, maturity or attendance 
because research has shown that retention is likely to have strong 
negative effects.'' Retention is therefore discouraged in the primary 
grades and prohibited thereafter.
  Here's another example: Dr. Rudy Crew, Chancellor of the New York 
City Schools, said in the January 25 New York Times that virtually 
every student is promoted from one grade to the next, regardless of 
performance on standardized tests.
  Mike Wright, a San Diegian, is an example. Cited in the February 16 
San Diego Union-Tribune, Mr. Wright says he routinely got promoted from 
grade to grade and even graduated from high school, even though he 
failed some subjects. At age 29, he is now enrolled in a community 
college program to learn to read--at age 29!
  Here are some examples of the harm of social promotion:
  In California, a December 1997 report from a state education 
accountability task force estimated that at least half of the state's 
students--3 million children--perform below levels considered 
proficient for their grade level.
  A January 1998 poll by Public Agenda asked employers and college 
professors whether they believe a high school diploma guarantees that a 
student has mastered basic skills. In this poll, 63% of employers and 
76 percent of professors said that the diploma is not a guarantee that 
a graduate can read, write or do basic math.
  Nationwide, about one third of college freshmen take remedial courses 
in college and three-quarters of all campuses, public and private, 
offer remediation, says the AFT study.
  A March 27 California State University study found that more than 
two-thirds of students entering Cal State campuses in Los Angeles lack 
the math or English they should have mastered in high school. At some 
high schools, not one graduate going on to one of Cal State's campuses 
passed a basic skills test. At Cal State Dominguez Hills, for example, 
8 out of 10 freshmen enrollees last fall needed remedial English and 87 
percent needed remedial math.
  Sadly, these numbers represent an increase. In the fall of 1997, 47 
percent of freshmen enrolled at CSU needed remediation, compared to 43 
percent in each of the previous three years. In math, 54 percent needed 
remedial help, compared to 48 percent in 1994.
  Similarly, almost 35 percent of entering freshmen at the University 
of California do poorly on UC's English proficiency test and must 
receive help in their first year.
  Florida spent $53 million in college on remedial education, says the 
AFT study.
  In Boston, school principals estimate that half their ninth graders 
are not prepared for high school work.
  In Ohio, nearly one fourth of all freshmen who attend state public 
universities must take remedial math or English (Cleveland Plain 
Dealer, July 7, 1997)
  Employers tell me that their new hires are unprepared for work and 
they have to provide very basic training to make them employable. For 
example, last year, MCI spent $7.5 million to provide basic skills 
training.
  Fortunately, many policymakers are beginning to realize that we must 
stop social promotion. President Clinton called for ending it in his 
last two State of the Union speeches. Last year, he said, ``We must 
also demand greater accountability. When we promote a child from grade 
to grade who hasn't mastered the work, we don't do that child any 
favors. It is time to end social promotion in America's schools.''
  Last year, California's former Governor Pete Wilson, signed into law 
a bill to end social promotion in our public education system. The bill 
requires school districts to identify students who are failing based on 
their grades or scores on the new statewide performance tests. The 
schools would have to hold back the student unless their teachers 
submitted a written finding that the student should be allowed to 
advance to the next grade. In such a case, the teacher would be 
required to recommend remediation to get the student to the next level, 
which could include summer school or after-school instruction.
  Los Angeles Unified School District is currently working to develop a 
plan to end the practice of social promotion. Los Angeles Unified 
School Board plans to identify those students who are at risk of 
flunking and require them to participate in remedial classes. The 
alternative curriculum will stress the basics in reading, language arts 
and math, and special after-school tutoring. The district's plan would 
take effect in the 1999-2000 school year and target students moving in 
the third through sixth grades and into the ninth grade.
  In San Diego, the School Board adopted requirements that all students 
in certain grades must demonstrate grade-level performance. And they 
will require all students to earn a C overall grade average and a C 
grade in core

[[Page 7166]]

subjects for high school graduation, effectively ending social 
promotion for certain grades and for high school graduation. For 
example, San Diego's schools are requiring that eighth graders who do 
not pass core courses be retained or pass core courses in summer 
school.
  At least three other states--Florida, Arkansas and Texas--explicitly 
outlaw social promotion.
  The Chicago Public Schools have ditched social promotion. After their 
new policy was put in place in the spring of 1997, over 40,000 students 
failed tests in the third, sixth, eight and ninth grades and then went 
to mandatory summer school. Chicago School Superintendent calls social 
promotion ``educational malpractice.'' He says from now on his schools' 
only product will be student achievement.
  Cincinnati's students are now promoted based on specific standards 
that define what students must know.
  The AFT study says: ``In most districts, there are no agreed-upon 
explicit standards of performance to which students are held 
accountable.''
  Our schools need clear, specific achievement levels for the core 
academic disciplines for every student. Many states are developing 
those achievement levels or standards. California's Commission for the 
Establishment of Academic Content and Performance Standards is 
developing statewide, grade-by-grade academic standards.
  Without them, we will never know (1) what our students need to learn 
and (2) whether they have learned what they should learn. How, I ask, 
can you measure what you have accomplished if you don't know where you 
are going?
  Sixty-one percent of Californians agreed in 1998 that our schools 
need a ``major overhaul,'' up from 54 percent who answered the same 
question two years earlier. A mere six percent believe that schools 
provide a ``quality education.''
  A poll by Policy Analysis for California Education found that only 17 
percent of the public considers the state's schools ``good'' or 
``excellent,'' down from about 33 percent three years ago.
  I hope my colleagues will join me today in stopping social promotion 
and providing remedial education because we must stop shortchanging our 
students.
  School achievement must mean something. It must mean more than 
filling up a seat at a desk for 12 years. A diploma should not just be 
a symbol of accumulating time in school.
  Social promotion is a cruel joke. We are fooling students. We are 
fooling ourselves. Students think a high school diploma means 
something. But in reality, a diploma does not mean much when we are 
graduating students who cannot count change, who cannot read a 
newspaper, or who cannot fill out an employment application. I hope 
this bill can help.
  Mr. President, I ask unanimous consent that the text of the bill and 
a summary be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                 S. 853

       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 ``Student Achievement Act of 
     1999''.

     SEC. 2. REMEDIAL EDUCATION.

       (a) Grants Authorized.--The Secretary is authorized to 
     award grants to high need, low-performing local educational 
     agencies to enable the local educational agencies to carry 
     out remedial education programs that enable kindergarten 
     through grade 12 students who are failing or are at risk of 
     failing to meet State achievement standards in the core 
     academic curriculum.
       (b) Use of Funds.--Grant funds awarded under this section 
     may be used to provide prevention and intervention services 
     and academic instruction, that enable the students described 
     in subsection (a) to meet State achievement standards in the 
     core academic curriculum, such as--
       (1) implementing early intervention strategies that 
     identify and support those students who need additional help 
     or alternative instructional strategies;
       (2) strengthening instruction and learning by hiring 
     certified teachers to reduce class sizes, providing high 
     quality professional development, and using proven 
     instructional practices and curriculum aligned to State 
     achievement standards;
       (3) providing extended learning time, such as before 
     school, after school, and summer school; and
       (4) developing intensive instructional intervention 
     strategies for students who fail to meet the State 
     achievement standards.
       (c) Applications.--Each local educational agency desiring 
     to receive a grant under this section shall submit an 
     application to the Secretary. Each application shall 
     contain--
       (1) an assurance that the grant funds will be used in 
     accordance with subsection (b); and
       (2) a detailed description of how the local educational 
     agency will use the grant funds to help students meet State 
     achievement standards in the core academic curriculum by 
     providing prevention and intervention services and academic 
     instruction to students who are most at risk of failing to 
     meet the State achievement standards.
       (d) Conditions for Receiving Funds.--A local educational 
     agency shall be eligible to receive a grant under this 
     section if the local educational agency or the State 
     educational agency--
       (1) adopts a policy prohibiting the practice of social 
     promotion;
       (2) adopts a policy requiring that all kindergarten through 
     grade 12 students be subject to State achievement standards 
     in the core academic curriculum at key transition points (to 
     be determined by the State), such as 4th, 8th, and 12th 
     grades, before promotion to the next grade level;
       (3) uses tests and other indicators, such as grades and 
     teacher evaluations, to assess student performance in meeting 
     the State achievement standards at key transition points (to 
     be determined by the State), which tests shall be valid for 
     the purpose of such assessment;
       (4) provides remedial education to all students not meeting 
     the State achievement standards; and
       (5) has substantial numbers of students who are low-
     performing students.
       (e) Definitions.--In this section:
       (1) Core academic curriculum.--The term ``core academic 
     curriculum'' means curriculum in subjects such as reading and 
     writing, language arts, mathematics, social sciences 
     (including history), and science.
       (2) Local educational agency.--The term ``local educational 
     agency'' has the meaning given the term in section 14101 of 
     the Elementary and Secondary Education Act of 1965 (20 U.S.C. 
     8801).
       (3) Practice of social promotion.--The term `practice of 
     social promotion' means a formal or informal practice of 
     promoting a student from the grade for which the 
     determination is made to the next grade when the student 
     fails to meet the State achievement standards in the core 
     academic curriculum, unless the practice is consistent with 
     the student's individualized education program under section 
     614(d) of the Individuals with Disabilities Education Act (20 
     U.S.C. 1414(d).
       (4) Secretary.--The term ``Secretary'' means the Secretary 
     of Education.
       (f) Authorization of Appropriations.--There are authorized 
     to be appropriated to carry out this section $500,000,000 for 
     each of the fiscal years 2000 through 2004.
                                  ____


             Summary of the Student Achievement Act of 1999


         PROVIDING REMEDIAL EDUCATION & ENDING SOCIAL PROMOTION

       Remedial Education: Authorizes $500 million for each year, 
     FY 2000 to 2004, to local education agencies for remedial 
     education programs to enable K-12 students to meet 
     achievement standards in the core academic curriculum.
       Eligibility: Local education agencies (school districts) as 
     defined in current law (public schools).
       Use of funds: Authorizes school districts to use funds to 
     provide academic instruction to enable students to meet 
     academic achievement standards. Funds can be used to--

       implement early intervention strategies for students at 
     risk of failing;
       develop intensive instructional intervention strategies for 
     low-performing students;
       hire certified teachers and provide professional 
     development;
       provide extended learning time, such as before school, 
     after school and summer school.

       Conditions for Receiving Remedial Education Funds: Requires 
     school districts to--

       adopt a policy prohibiting the practice of social 
     promotion;
       require that all K-12 students be subject to achievement 
     standards, to be determined by the states, in the core 
     curriculum, defined as subjects such as reading and writing, 
     language arts, mathematics, social sciences, including 
     history; and science; and
       test student achievement in meeting standards at certain 
     benchmarks, to be determined by the states, for advancement 
     to the next grade, distributed evenly over the course of a 
     student's education; and
       provide remedial education for students who fail to meet 
     achievement standards;
       have substantial numbers of low-performing students.
       Social Promotion Defined: The ``practice of social 
     promotion is defined as ``a formal or

[[Page 7167]]

     informal practice of promoting a student from the grade for 
     which the determination is made to the next grade when the 
     student fails to meet the state achievement standards in the 
     core academic curriculum, unless the practice is consistent 
     with the student's individualized education program under 
     section 614(d) of the Individuals with Disabilities Education 
     Act.''
                                 ______
                                 
      By Mr. LEAHY:
  S. 854. A bill to protect the privacy and constitutional rights of 
Americans, to establish standards and procedures regarding law 
enforcement access to location information, decryption assistance for 
encrypted communications and stored electronic information, and other 
private information, to affirm the rights of Americans to use and sell 
encryption products as a tool for protecting their online privacy, and 
for other purposes; to the Committee on the Judiciary.


               ELECTRONIC RIGHTS OF THE 21ST CENTURY ACT

  Mr. LEAHY. Mr. President, concern over privacy is reaching an all 
time high. In 1978, 64 percent of Americans reported that they were 
``very concerned'' or ``somewhat concerned'' about threats to their 
personal privacy. By 1998, this number had skyrocketed. According to 
the Center for Social and Legal Research, 88 percent of Americans 
reported being ``very'' or ``somewhat concerned'' about threats to 
their personal privacy. We in Congress must take this concern 
seriously, and in this regard I look forward to examining the privacy 
issues confronting us in hearings before the Senate Judiciary 
Committee.
  Good privacy policies make good business policies. New technologies 
bring with them new opportunities, both for the businesses that develop 
and market them, and for consumers. It does not do anyone any good for 
consumers to hesitate to use any particular technology because they 
have concerns over privacy. That is why I believe that good privacy 
policies make good business policies.
  Protecting privacy plays an important role in the exercise of First 
Amendment rights. Ensuring that we have adequate privacy laws has a 
more significant and important role in our democracy than just 
fostering hi-tech businesses, however. We also must defend our on-line 
free speech rights from heavy-handed content regulation. That was my 
purpose in voting against the unconstitutional Communications Decency 
Act that became law in 1996.
  Stopping efforts to create government censors is critical to allow 
our First Amendment rights to flourish, but it is not enough. For 
people to feel comfortable in exercising their First Amendment rights--
by speaking, traveling and associating freely online or in physical 
space--they must be able to keep their activities confidential and 
private. When Big Brother is watching, the exercise of First Amendment 
rights is chilled no less than the threat of a government censor.
  It is therefore not surprising that our country has a long and 
honorable tradition of keeping our identities private when we exercise 
our First Amendment rights. The Federalist Papers, which is probably 
the most important political document ever written about our 
Constitution, was authored anonymously by James Madison, John Jay and 
Alexander Hamilton and published under a pseudonym.
  Healthy advocacy and debate often rests on the ability of 
participants to keep their identities private and to act anonymously. 
Indeed, the Supreme Court has said, ``Anonymity is a shield from the 
tyranny of the majority.''
  Healthy commerce also depends on satisfying consumers' desire to keep 
their business affairs private and secure. A report I released last 
month on Vermont Internet commerce is very telling on this point. The 
strongest obstacle among consumers from shopping and doing business 
online was their fear of the online security risks. This is why 
promoting the use of encryption is so important, so that businesses and 
consumers can use this technology to provide the privacy and security 
they want and best suits their needs.
  The legislation I introduce today would help ensure that Americans' 
Fourth Amendment rights to be secure in their persons, houses, papers 
and effects against unreasonable government searches and seizures are 
given ample protection in a networked computer environment. In 
addition, several provisions address the concern Americans have about 
the use and handling of their personally identifiable records and 
information by businesses, satellite carriers, libraries and book 
sellers.
  Industry self-regulation efforts should be encouraged. In contrast to 
a citizen's relationship with his or her government, consumers have a 
choice of whether they want to deal or interact with those in the 
private sector. In my view, this choice should be generally recognized 
in the law by allowing consumers and businesses in the marketplace to 
set the terms of their interaction. This is an area where the Congress 
should tread cautiously before regulating. Online businesses are 
engaging in serious efforts to make available to consumers information 
on privacy policies so that consumers are able to make more educated 
choices on whether they want to deal. I commend and applaud those 
efforts.
  That being said, however, current laws do not apply privacy 
principles in an even-handed manner. Video rental stores and cable 
operators are subject to privacy laws to protect our right to keep our 
viewing habits private, but no protections exist for the books we 
borrow from the library or buy from a bookstore, or the shows we watch 
via satellite. This bill would provide more uniform privacy protection 
for both books and videos, no matter the medium of delivery.
  Similarly, telephone companies and cable operators are subject to 
legal restrictions on how they may use personally identifiable 
information about their Internet subscribers, while other Internet and 
online service providers are not. The E-RIGHTS bill promotes a more 
level playing field in terms of the privacy protections available to 
Internet users, no matter whether they obtain their Internet access 
from AOL, their cable company or their local phone company.
  This legislation addresses a broad range of emerging hi-tech privacy 
issues. For example:
  When should the FBI be allowed to use cell phones to track a user's 
movements?
  Should Kosovo human rights organizations that use a Web site to 
correct government misinformation be able to get a domain name without 
having their names publicly available on a database? Should we have the 
same ability to get an ``unlisted'' domain name (or Internet address) 
as we are able to get an ``unlisted'' phone number?
  Should we allow other federal prosecutors to act like Special 
Prosecutor Kenneth Starr and go on fishing expeditions with subpoenas 
issued to bookstores to find out what we are reading? Should we protect 
our choices of reading and viewing materials the same way we protect 
our choice of videotapes that we rent from our local Blockbuster?
  Should an Internet user who maintains a calendar on Yahoo! get the 
same privacy protection as people who keep their calendars on their 
desk or on their PCs' hard-drive? Will people avoid certain network 
services offered by Netscape or new Internet start-ups because they get 
less privacy protection for the information stored on the network than 
on their own PCs?
  These are all important issues, and I have worked to propose 
solutions to each of these and to other questions, as well, in the E-
RIGHTS bill. This bill has the following four titles:
  Title I: Privacy Protection for Communications and Electronic 
Information. This title has ten sections that propose certain Fourth 
Amendment protections to guide the government's access to, or exercise 
of, law enforcement's enhanced surveillance capabilities due to new 
technologies. In addition, this title also contains sections that limit 
how domain name registrars and Internet/Online service providers may 
use information collected on Internet users.
  Network Stored Information.--The bill would require that law 
enforcement give a subscriber notice of a subpoena or warrant before 
seizing electronic information stored on a network

[[Page 7168]]

service. This is the same notice that the subscriber would get if the 
information were stored on his or her own computer.
  Cell Phone Location Information.--Before law enforcement may use a 
person's cell phone as a tracking device, the bill would require a 
court order based on probable cause that the person is committing a 
crime.
  A related provision that has already passed the House in February as 
part of the ``Wireless Communications and Public Safety Act of 1999,'' 
H.R. 438, would require wireless phone providers to inform a cell phone 
user's family and emergency services of their location in emergency 
situations, while requiring the prior customer consent before that 
location information may be used for any other purpose.
  Pen Registers.--The bill would authorize a judge to review 
information presented by a federal prosecutor to determine whether the 
pen register is likely to produce information relevant to an ongoing 
criminal investigation, since under current law the judge plays only a 
ministerial role and must approve any order upon presentation by a 
prosecutor. Current law compels judges to be only a rubber stamp.
  Conference Calls.--The FBI has claimed that the Communications 
Assistance for Law Enforcement Act (CALEA) requires that they be given 
the capability to monitor conference calls which continue even after 
the target of a wiretap order has dropped out of the call. This 
provision would require that a court authorize such continued 
monitoring of conference calls in the absence of the target.
  Roving Wiretaps.--A substantial change that provides easier access to 
roving wiretaps was inserted without debate or hearings into last 
year's Intelligence Authorization Act. With this change, the FBI is 
able to get a roving wiretap whenever a person's action could have the 
effect of thwarting interception. The bill would rectify this change to 
permit roving wiretaps only when the person actually changes phones in 
a way which has the effect of thwarting surveillance.
  Domain Name Registrars.--Internet users or businesses who get an 
Internet address with a second level domain name must also provide 
information about contact names, physical and E-mail addresses, network 
location, and other information that is posted in a publicly available 
database called WHOIS. The bill would give users registering for a 
domain name/Internet address authority to prohibit disclosure of the 
information, and keep the information confidential. Of course, the 
registrar would be able to override the user's choice of 
confidentiality and to disclose the information as necessary to provide 
service or in response to a subpoena or court order.
  Internet users who want an ``unlisted'' Internet address just as they 
have the choice of getting an ``unlisted'' telephone number will be 
able to do so.
  Internet and Online Service Providers.--The 1986 Electronic 
Communications Privacy Act (ECPA) set up procedures for law enforcement 
to obtain records about subscribers from ``electronic communication 
service providers'', but contained a blanket exemption allowing such 
providers to disclose a record or other information pertaining to a 
subscriber or customer to any non-governmental entity. Due to this 
exemption, ISPs and OSPs may sell their subscriber lists or track the 
online movements of their subscribers and sell that information--all 
without the subscribers' knowledge or consent.
  The bill would cut back on this blanket exemption. The bill would 
require electronic communication service providers to give their 
subscribers an opportunity to prohibit disclosure of their personal 
information, and enumerates the situations in which the information may 
be used or disclosed without the subscriber's approval. These proposed 
rules are generally analogous to restrictions already in place for 
other providers of Internet services, including cable operators and 
phone companies, which are restricted in how they may use personally 
identifiable information about customers without the customers' 
approval.
  No criminal penalties attach for violation. ECPA currently authorizes 
an aggrieved person to bring a civil action.
  Title II: Promoting the Use of Encryption. This title contains three 
sections: (1) prohibiting domestic controls on encryption and 
government- compelled key escrow encryption; (2) requiring encryption 
products used by federal agencies to interoperate with commercial 
encryption products; and (3) adding a chapter to the federal criminal 
code detailing procedures to law enforcement and foreign government 
access to decryption assistance.
  Specifically, the bill would require the release of decryption keys 
or assistance to law enforcement in response to a court order based 
upon a finding that the key or assistance is necessary to decrypt 
lawfully intercepted encrypted messages or data.
  Title III: Privacy Protection for Library Loan and Book Sales 
Records. This title would extend the privacy protection in current law 
for video rental and sale records to library loan and book sale 
records.
  Library.--The library provisions are a reprise of sections that were 
dropped from the Video Privacy Protection Act enacted in 1988. This 
provision would prohibit libraries from disclosing personally 
identifiable information about patrons without the written consent of 
the patron or in response to a court order to release the information 
to a law enforcement agency, with prior notice to the patron, if there 
is probable cause to believe a crime is being committed and the 
information sought is material to the investigation.
  Booksellers.--The public outcry over Independent Counsel Kenneth 
Starr's subpoena in March 1988 to Kramerbooks & Afterwords for any 
books purchased by Monica Lewinsky, and the potential threat such 
government fishing expeditions pose to First Amendment rights, prompted 
examination of the privacy rules protecting the records maintained by 
bookstores. There are no rules barring book sellers from disclosing 
records about their customers.
  This section would impose the same nondisclosure rules on 
booksellers--whether online or in physical spaces--that apply to video 
rental stores. Generally, book sellers would be barred from disclosing 
personally identifiable information concerning a book purchaser without 
that purchasers' written consent given at the time the disclosure is 
sought.
  Title IV: Privacy Protection for Satellite Home Viewers. In the 1984 
Cable Act, Congress established a nationwide standard for the privacy 
protection of cable subscribers. Since the Cable Act was adopted, an 
entirely new form of access to television has emerged--home satellite 
viewing--which is especially popular in rural areas not served by 
cable. Yet there is no statutory privacy protection for information 
collected by home satellite viewing services about their customers or 
subscribers. This title fills this gap by amending the privacy 
provisions of the Cable Act to cover home satellite viewing.
  The amendments do not change the rules governing access to cable 
subscriber information. Instead, they merely add the words ``satellite 
home viewing service'' and ``satellite carrier or distributor'' where 
appropriate.
  The amendment does not address another inconsistency in the law, 
which bears mentioning: should a cable company that provides Internet 
services to its customers be subject to the privacy safeguards in the 
Cable Act or in the Electronic Communications Privacy Act (ECPA), which 
normally applies to Internet service providers and contains obligations 
regarding the disclosure of personally identifiable information to both 
governmental and nongovernmental entities different from those in the 
Cable Act? One court has described this as a ``statutory riddle raised 
by the entrance of cable operators into the Internet services market.''
  New technologies and new uses for old technologies pose challenging 
``riddles'' for privacy, but they are solvable in ways that balance 
competing commerce, civil rights, and law enforcement interests. The E-
RIGHTS bill proposes balanced solutions that protect our privacy 
rights. I invite others to

[[Page 7169]]

share their ideas on these matters. There are few matters more 
important than privacy in maintaining our core democratic values, so I 
look forward to hearing their comments on ways to improve this 
legislation.
  I ask unanimous consent that the E-RIGHTS bill and the sectional 
analysis be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                 S. 854

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

     SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

       (a) Short Title.--This Act may be cited as the ``Electronic 
     Rights for the 21st Century Act''.
       (b) Table of Contents.--The table of contents for this Act 
     is as follows:

Sec. 1. Short title; table of contents.
Sec. 2. Purposes.
Sec. 3. Findings.
Sec. 4. Definitions.

     TITLE I--PRIVACY PROTECTION FOR COMMUNICATIONS AND ELECTRONIC 
                              INFORMATION

Sec. 101. Enhanced privacy protection for information on computer 
              networks.
Sec. 102. Government access to location information.
Sec. 103. Enhanced privacy protection for transactional information 
              obtained from pen registers and trap and trace devices.
Sec. 104. Privacy protection for conference calls.
Sec. 105. Enhanced privacy protection for packet networks, including 
              the Internet.
Sec. 106. Privacy safeguards for information collected by Internet 
              registrars.
Sec. 107. Reports concerning governmental access to electronic 
              communications.
Sec. 108. Roving wiretaps.
Sec. 109. Authority to provide customer location information for 
              emergency purposes.
Sec. 110. Confidentiality of subscriber information.

                 TITLE II--PROMOTING USE OF ENCRYPTION

Sec. 201. Freedom to use encryption.
Sec. 202. Purchase and use of encryption products by the Federal 
              Government.
Sec. 203. Law enforcement decryption assistance.

  TITLE III--PRIVACY PROTECTION FOR LIBRARY LOAN AND BOOK SALE RECORDS

Sec. 301. Wrongful disclosure of library loan and book sale records.

        TITLE IV--PRIVACY PROTECTION FOR SATELLITE HOME VIEWERS

Sec. 401. Privacy protection for subscribers of satellite television 
              services for private home viewing. 

     SEC. 2. PURPOSES.

       The purposes of this Act are--
       (1) to promote the privacy and constitutional rights of 
     individuals and organizations in networked computer systems 
     and other digital environments, protect the confidentiality 
     of information and security of critical infrastructure 
     systems relied on by individuals, businesses and government 
     agencies, and properly balance the needs of law enforcement 
     to have the access to electronic communications and 
     information in appropriate circumstances;
       (2) to encourage Americans to develop and deploy encryption 
     technology and to promote the use of encryption by Americans 
     to protect the security, confidentiality, and privacy of 
     their lawful wire and electronic communications and stored 
     electronic information; and
       (3) to establish privacy standards and procedures by which 
     investigative or law enforcement officers and foreign 
     governments may obtain decryption assistance for encrypted 
     communications and stored electronic information.

     SEC. 3. FINDINGS.

       Congress finds that--
       (1) the digitization of information and the explosion in 
     the growth of computing and electronic networking offers 
     tremendous potential benefits to the way Americans live, 
     work, and are entertained, but also raises new threats to the 
     privacy of the American people and the competitiveness of 
     American businesses;
       (2) a secure, private, and trusted national and global 
     information infrastructure is essential to promote economic 
     growth, protect privacy, and meet the needs of the American 
     people and businesses;
       (3) the rights of Americans to the privacy and security of 
     their communications and in the conducting of personal and 
     business affairs should be promoted and protected;
       (4) the authority and ability of investigative and law 
     enforcement officers to access and decipher, in a timely 
     manner and as provided by law, wire and electronic 
     communications, and stored electronic information necessary 
     to provide for public safety and national security should 
     also be preserved;
       (5) individuals will not entrust their sensitive personal, 
     medical, financial, and other information to computers and 
     computer networks unless the security and privacy of that 
     information is assured;
       (6) businesses will not entrust their proprietary and 
     sensitive corporate information, including information about 
     products, processes, customers, finances, and employees, to 
     computers and computer networks unless the security and 
     privacy of that information is assured;
       (7) America's critical infrastructures, including its 
     telecommunications system, banking and financial 
     infrastructure, and power and transportation infrastructure, 
     increasingly rely on vulnerable information systems, and will 
     represent a growing risk to national security and public 
     safety unless the security and privacy of those information 
     systems is assured;
       (8) encryption technology is an essential tool to promote 
     and protect the privacy, security, confidentiality, 
     integrity, and authenticity of wire and electronic 
     communications and stored electronic information;
       (9) encryption techniques, technology, programs, and 
     products are widely available worldwide;
       (10) Americans should be free to use lawfully whatever 
     particular encryption techniques, technologies, programs, or 
     products developed in the marketplace that best suits their 
     needs in order to interact electronically with the government 
     and others worldwide in a secure, private, and confidential 
     manner;
       (11) government mandates for, or otherwise compelled use 
     of, third-party key recovery systems or other systems that 
     provide surreptitious access to encrypted data threatens the 
     security and privacy of information systems;
       (12) a national encryption policy is needed to advance the 
     development of the national and global information 
     infrastructure, and preserve the right to privacy of 
     Americans and the public safety and national security of the 
     United States;
       (13) Congress and the American people have recognized the 
     need to balance the right to privacy and the protection of 
     the public safety with national security;
       (14) the Constitution of the United States permits lawful 
     electronic surveillance and the use of other investigative 
     tools by law enforcement officers and the seizure of stored 
     electronic information only upon compliance with stringent 
     standards and procedures designed to protect the right to 
     privacy and other rights protected under the fourth amendment 
     of the Constitution of the United States;
       (15) there is a need to clarify the standards and 
     procedures by which investigative or law enforcement officers 
     obtain decryption assistance from persons--
       (A) who are voluntarily entrusted with the means to decrypt 
     wire and electronic communications and stored electronic 
     information; or
       (B) have information that enables the decryption of such 
     communications and information;
       (16) Americans are increasingly shopping online and 
     purchasing books from online vendors, and expect that their 
     choices of reading or viewing materials will be kept 
     confidential;
       (17) protecting the confidentiality and privacy of the 
     books, other written materials, and movies that a person 
     chooses to read or view should be protected to ensure the 
     free exercise of first amendment rights regardless of medium;
       (18) generally, under current law, telecommunications 
     carriers may not disclose individually identifiable customer 
     proprietary network information without their customers' 
     approval, while providers of electronic communications 
     services and remote computing services may make such 
     disclosure to anyone other than a governmental entity and 
     have no legal obligation to notify their subscribers when 
     they do so;
       (19) subscribers of Internet services through facilities of 
     cable operators must be given notice and an opportunity to 
     prohibit disclosure before the cable operator may disclose 
     any personally identifiable information, including name or 
     address, about a subscriber to any other person, while 
     providers of electronic communications services and remote 
     computing services have no similar legal obligation to 
     protect the privacy of their subscribers; and
       (20) given the convergence among wireless, wire line, 
     cable, broadcast, and satellite services, privacy safeguards 
     should be applied more uniformly across different media in 
     order to provide a level competitive playing field and 
     consistent privacy protections.

     SEC. 4. DEFINITIONS.

       In this Act:
       (1) Agency.--The term ``agency'', in the case of the United 
     States Government, has the meaning given the term in section 
     6 of title 18, United States Code, and includes the United 
     States Postal Service.
       (2) Encrypt; encryption.--The terms ``encrypt'' and 
     ``encryption'' refer to the scrambling (and descrambling) of 
     wire communications, electronic communications, or 
     electronically stored information using

[[Page 7170]]

     mathematical formulas or algorithms in order to preserve the 
     confidentiality, integrity, or authenticity of, and prevent 
     unauthorized recipients from accessing or altering, such 
     communications or information.
       (3) Encryption product.--The term ``encryption product'' 
     means a computing device, computer hardware, computer 
     software, or technology with encryption capabilities.
       (4) Key.--The term ``key'' means the variable information 
     used in or produced by a mathematical formula, code, or 
     algorithm, or any component thereof, used to encrypt or 
     decrypt wire communications, electronic communications, or 
     electronically stored information.
       (5) Person.--The term ``person'' has the meaning given the 
     term in section 2510(6) of title 18, United States Code.
       (6) State.--The term ``State'' includes a State of the 
     United States, the District of Columbia, and any 
     commonwealth, territory, or possession of the United States.
       (7) United states person.--The term ``United States 
     person'' means any--
       (A) national of the United States; or
       (B) legal entity that--
       (i) is organized under the laws of the United States or any 
     State; and
       (ii) has its principal place of business in the United 
     States.

     TITLE I--PRIVACY PROTECTION FOR COMMUNICATIONS AND ELECTRONIC 
                              INFORMATION

     SEC. 101. ENHANCED PRIVACY PROTECTION FOR INFORMATION ON 
                   COMPUTER NETWORKS.

       Section 2703(b) of title 18, United States Code, is amended 
     by striking paragraph (1) and inserting the following new 
     paragraph (1):
       ``(1) In general.--A governmental entity may require a 
     provider of remote computing service to disclose the contents 
     of any electronic communication to which this paragraph is 
     made applicable by paragraph (2)--
       ``(A) pursuant to a warrant issued under the Federal Rules 
     of Criminal Procedure or equivalent State warrant, a copy of 
     which warrant shall be served on the subscriber or customer 
     of such remote computing service before or at the same time 
     the warrant is served on the provider of the remote computing 
     service; or
       ``(B) pursuant to a Federal or State grand jury or trial 
     subpoena, a copy of which subpoena shall be served on the 
     subscriber or customer of such remote computing service under 
     circumstances allowing the subscriber or customer a 
     meaningful opportunity to challenge the subpoena.''.
       (b) Conforming Amendments.--Paragraph (2) of that section 
     is amended--
       (1) by indenting the paragraph 2 ems;
       (2) by inserting ``Applicability.--'' after ``(2)''; and
       (3) by indenting subparagraphs (A) and (B) 4 ems.

     SEC. 102. GOVERNMENT ACCESS TO LOCATION INFORMATION.

       (a) Court Order Required.--Section 2703 of title 18, United 
     States Code, is amended by adding at the end the following:
       ``(g) Disclosure of Location Information to Governmental 
     Entities.--
       ``(1) Disclosure upon court order.--A provider of mobile 
     electronic communication service shall provide to a 
     governmental entity information generated by and disclosing 
     the current physical location of a subscriber's equipment 
     only if the governmental entity obtains a court order issued 
     upon a finding that there is probable cause to believe that 
     the equipment has been used, is being used, or is about to be 
     used to commit a felony offense.
       ``(2) Disclosure upon subscriber or user consent.--A 
     provider of mobile electronic communication service may 
     provide to a governmental entity information described in 
     paragraph (1) with the consent of the subscriber or the user 
     of the equipment concerned.''.
       (b) Conforming Amendment.--Subsection (c)(1)(B) of that 
     section is amended by striking ``(b) of this section'' and 
     inserting ``(b), or wireless location information covered by 
     subsection (g)''.

     SEC. 103. ENHANCED PRIVACY PROTECTION FOR TRANSACTIONAL 
                   INFORMATION OBTAINED FROM PEN REGISTERS AND 
                   TRAP AND TRACE DEVICES.

       Section 3123(a) of title 18, United States Code, is amended 
     to read as follows:
       ``(a) In General.--Upon an application made under section 
     3122, the court may enter an ex parte order--
       ``(1) authorizing the installation and use of a pen 
     register or a trap and trace device within the jurisdiction 
     of the court if the court finds, based on the certification 
     by the attorney for the government or the State law 
     enforcement or investigative officer, that the information 
     likely to be obtained by such installation and use is 
     relevant to an ongoing criminal investigation; and
       ``(2) directing that the use of the pen register or trap 
     and trace device be conducted in such a way as to minimize 
     the recording or decoding of any electronic or other impulses 
     that are not related to the dialing and signaling information 
     utilized in call processing by the service provider upon whom 
     the order is served.''.

     SEC. 104. PRIVACY PROTECTION FOR CONFERENCE CALLS.

       Section 2518 of title 18, United States Code, is amended by 
     adding at the end the following:
       ``(13) The interception of wire or electronic 
     communications pursuant to an order under this section must 
     be terminated when the facility identified in the order 
     authorizing such interception is no longer being used, unless 
     the judge determines on the basis of facts submitted by the 
     applicant that there is probable cause to believe that an 
     individual continuing as a party to the communication is 
     committing, has committed, or is about to commit a particular 
     offense enumerated in the order and there is probable cause 
     to believe that particular communications concerning that 
     offense will be obtained through such continuing 
     interception.''.

     SEC. 105. ENHANCED PRIVACY PROTECTION FOR PACKET NETWORKS, 
                   INCLUDING THE INTERNET.

       Section 3121(c) of title 18, United States Code, is amended 
     by striking ``other impulses'' and all that follows and 
     inserting ``other impulses--
       ``(1) to the dialing and signaling information utilized in 
     call processing; or
       ``(2) in the case of a packet-switched network, to the 
     addressing information.''.

     SEC. 106. PRIVACY SAFEGUARDS FOR INFORMATION COLLECTED BY 
                   INTERNET REGISTRARS.

       (a) In General.--Section 2703 of title 18, United States 
     Code, as amended by section 102(a) of this Act, is further 
     amended by adding at the end the following:
       ``(h) Records Concerning Domain Name Registration 
     Service.--A provider of domain name registration service may 
     disclose a record or other information pertaining to a 
     subscriber or customer of such service--
       ``(1) to any person--
       ``(A) if the provider has provided the subscriber or 
     customer, in a clear and conspicuous manner, the opportunity 
     to prohibit such disclosure;
       ``(B) in the case of information that identifies the 
     service provider hosting the website of the subscriber or 
     customer; or
       ``(C) to the extent such disclosure is necessary incident 
     to the provision of such service or for the protection of the 
     rights or property of the provider of such service; or
       ``(2) without notice or consent of the subscriber or 
     customer in response to a subpoena or warrant authorized by a 
     Federal or State statute.''.
       (b) Domain Name Registration Service Defined.--Section 2711 
     of such title is amended--
       (1) in paragraph (1), by striking ``and'' at the end;
       (2) in paragraph (2), by striking the period at the end and 
     inserting ``; and''; and
       (3) by adding at the end the following:
       ``(3) the term `domain name registration service' means a 
     service to the public for the assignment and management of 
     domain names and Internet Protocol addresses.''.

     SEC. 107. REPORTS CONCERNING GOVERNMENTAL ACCESS TO 
                   ELECTRONIC COMMUNICATIONS.

       Section 2703 of title 18, United States Code, as amended by 
     section 106(a) of this Act, is further amended by adding at 
     the end the following:
       ``(i) Reports.--In April each year, the Attorney General 
     shall transmit to Congress a full and complete report on--
       ``(1) the number and kind of warrants, orders, and 
     subpoenas applied for by law enforcement agencies of the 
     Department of Justice under this section;
       ``(2) the number of such applications granted or denied; 
     and
       ``(3) with respect to each warrant, order, or subpoena 
     issued under this section--
       ``(A) the number and type of communications disclosed;
       ``(B) the approximate number and frequency of incriminating 
     communications disclosed;
       ``(C) the offense specified in the application; and
       ``(D) the approximate number of persons whose 
     communications were intercepted.''.

     SEC. 108. ROVING WIRETAPS.

       (a) Scope of Wiretaps.--Subsection (11)(b) of section 2518 
     of title 18, United States Code, is amended by striking 
     clauses (ii) through (iv) and inserting the following new 
     clauses:
       ``(ii) the application identifies the person believed to be 
     committing the offense and whose communications are to be 
     intercepted and the applicant makes a showing that--
       ``(I) the person changes facilities in a way that has the 
     effect of thwarting interception from a specified facility; 
     or
       ``(II) the person intends to thwart interception by 
     changing facilities; and
       ``(iii) the judge finds that such showing has been 
     adequately made.''.
       (b) Limitation.--Subsection (12) of that section is 
     amended--
       (1) by inserting ``(a)'' after ``(12)''; and
       (2) by adding at the end the following:
       ``(b) Each order and extension thereof to which the 
     requirements of subsections (1)(b)(ii) and (3)(D) of this 
     section do not apply by reason of subsection (11) of this 
     section shall provide that the authorization to intercept 
     only applies to communications to which the person believed 
     to be committing the offense and named in the order is a 
     party.''.

[[Page 7171]]



     SEC. 109. AUTHORITY TO PROVIDE CUSTOMER LOCATION INFORMATION 
                   FOR EMERGENCY PURPOSES.

       (a) Use of Call Location and Crash Notification 
     Information.--Subsection (d) of section 222 of the 
     Communications Act of 1934 (47 U.S.C. 222) is amended--
       (1) by striking ``or'' at the end of paragraph (2);
       (2) by striking the period at the end of paragraph (3) and 
     inserting a semicolon; and
       (3) by adding at the end the following new paragraphs:
       ``(4) to provide call location information concerning the 
     user of a commercial mobile service (as such term is defined 
     in section 332(d))--
       ``(A) to a public safety answering point, emergency medical 
     service provider or emergency dispatch provider, public 
     safety official, fire service official, law enforcement 
     official, hospital emergency facility, or trauma care 
     facility in order to respond to the user's call for emergency 
     services;
       ``(B) to inform the user's legal guardian or members of the 
     user's immediate family of the user's location in an 
     emergency situation that involves the risk of death or 
     serious physical harm; or
       ``(C) to providers of information or database management 
     services solely for purposes of assisting in the delivery of 
     emergency services in response to an emergency; or
       ``(5) to transmit automatic crash notification information 
     as part of the operation of an automatic crash notification 
     system.''.
       (b) Customer Approval of Use of Call Location and Crash 
     Notification Information.--That section is further amended--
       (1) by redesignating subsection (f) as subsection (h); and
       (2) by inserting after subsection (e) the following new 
     subsection (f):
       ``(f) Customer Approval of Use of Call Location Information 
     and Crash Notification Information.--For purposes of 
     subsection (c)(1), without the express prior authorization of 
     the customer, a customer shall not be considered to have 
     approved the use or disclosure of or access to--
       ``(1) call location information concerning the user of a 
     commercial mobile service (as such term is defined in section 
     332(d)), other than in accordance with subsection (d)(4); or
       ``(2) automatic crash notification information to any 
     person other than for use in the operation of an automatic 
     crash notification system.''.
       (c) Use of Listed and Unlisted Subscriber Information for 
     Emergency Services.--That section is further amended by 
     inserting after subsection (f), as amended by subsection (b) 
     of this section, the following new subsection (g):
       ``(g) Subscriber Listed and Unlisted Information for 
     Emergency Services.--Notwithstanding subsections (b), (c), 
     and (d), a telecommunications carrier that provides telephone 
     exchange service shall provide information described in 
     subsection (h)(3)(A) (including information pertaining to 
     subscribers whose information is unlisted or unpublished) 
     that is in its possession or control (including information 
     pertaining to subscribers of other carriers) on a timely and 
     unbundled basis, under nondiscriminatory and reasonable 
     rates, terms, and conditions to providers of emergency 
     services, and providers of emergency support services, solely 
     for purposes of delivering or assisting in the delivery of 
     emergency services.''.
       (d) Definitions.--Subsection (h) of that section, as 
     redesignated by subsection (b)(1) of this section, is 
     amended--
       (1) in paragraph (1)(A), by inserting ``location,'' after 
     ``destination,''; and
       (2) by adding at the end the following:
       ``(4) Public safety answering point.--The term `public 
     safety answering point' means a facility that has been 
     designated to receive emergency calls and route them to 
     emergency service personnel.
       ``(5) Emergency services.--The term `emergency services' 
     means 911 emergency services and emergency notification 
     services.
       ``(6) Emergency notification services.--The term `emergency 
     notification services' means services that notify the public 
     of an emergency.
       ``(7) Emergency support services.--The term `emergency 
     support services' means information or data base management 
     services used in support of emergency services.''.

     SEC. 110. CONFIDENTIALITY OF SUBSCRIBER INFORMATION.

       Section 2703(c) of title 18, United States Code, is 
     amended--
       (1) in paragraph (1)(A), by inserting before the period at 
     the end the following: ``only if such disclosure is--
       ``(i) necessary to initiate, render, bill, and collect for 
     such service;
       ``(ii) necessary to protect the rights or property of the 
     provider of such service;
       ``(iii) required by law;
       ``(iv) made at the request of the subscriber or customer; 
     or
       ``(v) if the provider has provided the subscriber or 
     customer, in a clear and conspicuous manner, with the 
     opportunity to prohibit such disclosure.''; and
       (2) by adding at the end the following:
       ``(3) Nothing in this subsection may be construed to 
     prohibit a provider of electronic communication service or 
     remote computing service from using, disclosing, or 
     permitting access to aggregate subscriber information from 
     which individual subscriber identities and characteristics 
     have been removed.''.

                 TITLE II--PROMOTING USE OF ENCRYPTION

     SEC. 201. FREEDOM TO USE ENCRYPTION.

       (a) No Domestic Encryption Controls.--It shall be lawful 
     for any person within the United States, and for any United 
     States person in a foreign country, to use, develop, 
     manufacture, sell, distribute, or import any encryption 
     product, regardless of the encryption algorithm selected, 
     encryption key length chosen, existence of key recovery or 
     other plaintext access capability, or implementation or 
     medium used.
       (b) Prohibition on Government-Compelled Key Escrow or Key 
     Recovery.--
       (1) In general.--Except as provided in paragraph (3), no 
     agency of the United States may require, compel, set 
     standards for, condition any approval on, or condition the 
     receipt of any benefit on, a requirement that a decryption 
     key, access to a decryption key, key recovery information, or 
     other plaintext access capability be--
       (A) required to be built into computer hardware or software 
     for any purpose;
       (B) given to any other person, including any agency of the 
     United States or a State, or any entity in the private 
     sector; or
       (C) retained by the owner or user of an encryption key or 
     any other person, other than for encryption products for the 
     use of the Federal Government or a State government.
       (2) Use of particular products.--No agency of the United 
     States may require any person who is not an employee or agent 
     of the United States or a State to use any key recovery or 
     other plaintext access features for communicating or 
     transacting business with any agency of the United States.
       (3) Exceptions.--The prohibition in paragraph (1) does not 
     apply to--
       (A) encryption used by an agency of the United States, or 
     the employees or agents of such agency, solely for the 
     internal operations and telecommunications systems of the 
     United States Government; or
       (B) the authority of any investigative or law enforcement 
     officer, or any member of the intelligence community (as 
     defined in section 3 of the National Security Act of 1947 (50 
     U.S.C. 401a)), acting under any law in effect on the date of 
     enactment of this Act, to gain access to encrypted 
     communications or information.
       (c) Use of Encryption for Authentication or Integrity 
     Purposes.--No agency of the United States shall establish any 
     condition, tie, or link between encryption products, 
     standards, and services used for confidentiality purposes and 
     those used for authentication, integrity, or access control 
     purposes.

     SEC. 202. PURCHASE AND USE OF ENCRYPTION PRODUCTS BY THE 
                   FEDERAL GOVERNMENT.

       To ensure that secure electronic access to the Federal 
     Government is available to persons outside of and not 
     operating under contract with agencies of the United States, 
     the Federal Government may not purchase any encryption 
     product with a key recovery or other plaintext access feature 
     if such key recovery or plaintext access feature would 
     interfere with use of the full encryption capabilities of the 
     product when interoperating with other commercial encryption 
     products.

     SEC. 203. LAW ENFORCEMENT DECRYPTION ASSISTANCE.

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

 ``CHAPTER 124--ENCRYPTED WIRE OR ELECTRONIC COMMUNICATIONS AND STORED 
                         ELECTRONIC INFORMATION

``Sec.
``2801. Definitions.
``2802. Access to decryption assistance for communications.
``2803. Access to decryption assistance for stored electronic 
              communications or records.
``2804. Foreign government access to decryption assistance.

     ``Sec. 2801. Definitions

       ``In this chapter:
       ``(1) Decryption assistance.--The term `decryption 
     assistance' means assistance that provides or facilitates 
     access to the plaintext of an encrypted wire or electronic 
     communication or stored electronic information, including the 
     disclosure of a decryption key or the use of a decryption key 
     to produce plaintext.
       ``(2) Decryption key.--The term `decryption key' means the 
     variable information used in or produced by a mathematical 
     formula, code, or algorithm, or any component thereof, used 
     to decrypt a wire communication or electronic communication 
     or stored electronic information that has been encrypted.
       ``(3) Encrypt; encryption.--The terms `encrypt' and 
     `encryption' refer to the scrambling (and descrambling) of 
     wire communications, electronic communications, or 
     electronically stored information using mathematical formulas 
     or algorithms in order to preserve the confidentiality, 
     integrity, or authenticity of, and prevent unauthorized 
     recipients from accessing or altering, such communications or 
     information.
       ``(4) Foreign government.--The term `foreign government' 
     has the meaning given the term in section 1116.

[[Page 7172]]

       ``(5) Official request.--The term `official request' has 
     the meaning given the term in section 3506(c).
       ``(6) Incorporated definitions.--Any term used in this 
     chapter that is not defined in this chapter and that is 
     defined in section 2510, has the meaning given the term in 
     section 2510.

     ``Sec. 2802. Access to decryption assistance for 
       communications

       ``(a) Criminal Investigations.--
       ``(1) In general.--An order authorizing the interception of 
     a wire or electronic communication under section 2518 shall, 
     upon request of the applicant, direct that a provider of wire 
     or electronic communication service, or any other person 
     possessing information capable of decrypting that 
     communication, other than a person whose communications are 
     the subject of the interception, shall promptly furnish the 
     applicant with the necessary decryption assistance, if the 
     court finds that the decryption assistance sought is 
     necessary for the decryption of a communication intercepted 
     pursuant to the order.
       ``(2) Limitations.--Each order described in paragraph (1), 
     and any extension of such an order, shall--
       ``(A) contain a provision that the decryption assistance 
     provided shall involve disclosure of a private decryption key 
     only if no other form of decryption assistance is available 
     and otherwise shall be limited to the minimum necessary to 
     decrypt the communications intercepted pursuant to such 
     order; and
       ``(B) terminate on the earlier of--
       ``(i) the date on which the authorized objective is 
     attained; or
       ``(ii) 30 days after the date on which the order or 
     extension, as applicable, is issued.
       ``(3) Notice.--If decryption assistance is provided 
     pursuant to an order under this subsection, the court issuing 
     the order shall cause to be served on the person whose 
     communications are the subject of such decryption assistance, 
     as part of the inventory required to be served pursuant to 
     section 2518(8), notice of the receipt of the decryption 
     assistance and a specific description of the decryption keys 
     or other decryption assistance disclosed.
       ``(b) Foreign Intelligence Investigations.--
       ``(1) In general.--An order authorizing the interception of 
     a wire or electronic communication under section 105(b)(2) of 
     the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 
     1805(b)(2)) shall, upon request of the applicant, direct that 
     a provider of wire or electronic communication service, or 
     any other person possessing information capable of decrypting 
     such communications, other than a person whose communications 
     are the subject of the interception, shall promptly furnish 
     the applicant with the necessary decryption assistance, if 
     the court finds that the decryption assistance sought is 
     necessary for the decryption of a communication intercepted 
     pursuant to the order.
       ``(2) Limitations.--Each order described in paragraph (1), 
     and any extension of such an order, shall--
       ``(A) contain a provision that the decryption assistance 
     provided shall be limited to the minimum necessary to decrypt 
     the communications intercepted pursuant to such order; and
       ``(B) terminate on the earlier of--
       ``(i) the date on which the authorized objective is 
     attained; or
       ``(ii) 30 days after the date on which the order or 
     extension, as applicable, is issued.
       ``(c) General Prohibition on Disclosure.--Other than 
     pursuant to an order under subsection (a) or (b), no person 
     possessing information capable of decrypting a wire or 
     electronic communication of another person shall disclose 
     that information or provide decryption assistance to an 
     investigative or law enforcement officer.

     ``Sec. 2803. Access to decryption assistance for stored 
       electronic communications or records

       ``(a) Decryption Assistance.--No person may disclose a 
     decryption key or provide decryption assistance pertaining to 
     the contents of stored electronic communications or records, 
     including those disclosed pursuant to section 2703, to a 
     governmental entity, except--
       ``(1) pursuant to a warrant issued under the Federal Rules 
     of Criminal Procedure or an equivalent State warrant, a copy 
     of which warrant shall be served on the person who created 
     the electronic communication or record before or at the same 
     time service is made on the keyholder;
       ``(2) pursuant to a subpoena, a copy of which subpoena 
     shall be served on the person who created the electronic 
     communication or record, under circumstances allowing the 
     person meaningful opportunity to challenge the subpoena; or
       ``(3) upon the consent of the person who created the 
     electronic communication or record.
       ``(b) Delay of Notification.--In the case of communications 
     disclosed pursuant to section 2703(a), service of the copy of 
     the warrant or subpoena on the person who created the 
     electronic communication or record may be delayed for a 
     period of not to exceed 90 days upon request to the court by 
     the governmental entity requiring the decryption assistance, 
     if the court determines that there is reason to believe that 
     notification of the existence of the court order or subpoena 
     may have an adverse result described in section 2705(a)(2).

     ``Sec. 2804. Foreign government access to decryption 
       assistance

       ``(a) In General.--No investigative or law enforcement 
     officer may--
       ``(1) release a decryption key to a foreign government or 
     to a law enforcement agency of a foreign government; or
       ``(2) except as provided in subsection (b), provide 
     decryption assistance to a foreign government or to a law 
     enforcement agency of a foreign government.
       ``(b) Conditions for Cooperation With Foreign Government.--
       ``(1) Application for order.--In any case in which the 
     United States has entered into a treaty or convention with a 
     foreign government to provide mutual assistance with respect 
     to providing decryption assistance, the Attorney General (or 
     the designee of the Attorney General) may, upon an official 
     request to the United States from the foreign government, 
     apply for an order described in paragraph (2) from the 
     district court in which the person possessing information 
     capable of decrypting the encrypted communication or stored 
     electronic information at issue resides--
       ``(A) directing that person to release a decryption key or 
     provide decryption assistance to the Attorney General (or the 
     designee of the Attorney General); and
       ``(B) authorizing the Attorney General (or the designee of 
     the Attorney General) to furnish the foreign government with 
     the plaintext of the communication or information at issue.
       ``(2) Contents of order.--An order described in this 
     paragraph is an order directing the person possessing 
     information capable of decrypting the communication or 
     information at issue to--
       ``(A) release a decryption key to the Attorney General (or 
     the designee of the Attorney General) so that the plaintext 
     of the communication or information may be furnished to the 
     foreign government; or
       ``(B) provide decryption assistance to the Attorney General 
     (or the designee of the Attorney General) so that the 
     plaintext of the communication or information may be 
     furnished to the foreign government.
       ``(3) Requirements for order.--The court described in 
     paragraph (1) may issue an order described in paragraph (2) 
     if the court finds, on the basis of an application made by 
     the Attorney General under this subsection, that--
       ``(A) the decryption key or decryption assistance sought is 
     necessary for the decryption of a communication or 
     information that the foreign government is authorized to 
     intercept or seize pursuant to the law of the foreign 
     country;
       ``(B) the law of the foreign country provides for adequate 
     protection against arbitrary interference with respect to 
     privacy rights; and
       ``(C) the decryption key or decryption assistance is being 
     sought in connection with a criminal investigation for 
     conduct that would constitute a violation of a criminal law 
     of the United States if committed within the jurisdiction of 
     the United States.''.
       (b) Clerical Amendment.--The analysis for part I of title 
     18, United States Code, is amended by adding at the end the 
     following:

``124. Encrypted wire or electronic communications and stored 
    electronic information..................................2801''.....

  TITLE III--PRIVACY PROTECTION FOR LIBRARY LOAN AND BOOK SALE RECORDS

     SEC. 301. WRONGFUL DISCLOSURE OF LIBRARY LOAN AND BOOK SALE 
                   RECORDS.

       (a) In General.--Section 2710 of title 18, United States 
     Code, is amended--
       (1) by redesignating subsections (c) through (f) as 
     subsections (d) through (g), respectively; and
       (2) by striking the section designation and all that 
     follows through the end of subsection (b) and inserting the 
     following:

     ``Sec. 2710. Wrongful disclosure of video tape rental or sale 
       records and library loan and book sale records

       ``(a) Definitions.--In this section:
       ``(1) The term `book seller' means any person, engaged in 
     the business, in or affecting interstate or foreign commerce, 
     of selling books, magazines, or other printed material, or 
     any person or other entity to whom a disclosure is made under 
     subparagraph (D) or (E) of subsection (b)(2), but only with 
     respect to the information contained in the disclosure.
       ``(2) The term `consumer' means any renter, purchaser, or 
     subscriber of goods or services from a video tape service 
     provider or book seller.
       ``(3) The term `library' means an institution that operates 
     as a public library or serves as a library for any 
     university, school, or college.
       ``(4) The term `ordinary course of business' means only 
     debt collection activities, order fulfillment, request 
     processing, and the transfer of ownership.
       ``(5) The term `patron' means any individual who requests 
     or receives--
       ``(A) services within a library; or

[[Page 7173]]

       ``(B) books or other materials on loan from a library.
       ``(6) The term `personally identifiable information' 
     includes the following:
       ``(A) Information that identifies a person as having 
     requested or obtained specific video materials or services 
     from a video tape service provider.
       ``(B) Information that identifies a person as having 
     requested or obtained specific books, magazines, or other 
     printed material from a book seller.
       ``(C) Information that identifies a person as having 
     requested or obtained any materials or services from a 
     library.
       ``(7) The term `video tape service provider' means any 
     person, engaged in the business, in or affecting interstate 
     or foreign commerce, of rental, sale, or delivery of 
     prerecorded video cassette tapes or similar audio visual 
     materials, or any person or other entity to whom a disclosure 
     is made under subparagraph (D) or (E) of subsection (b)(2), 
     but only with respect to the information contained in the 
     disclosure.
       ``(b) Video Tape Rental and Sale and Book Sale Records.--
       ``(1) In general.--A video tape service provider or book 
     seller who knowingly discloses, to any person, personally 
     identifiable information concerning any consumer of such 
     provider or seller, as the case may be, shall be liable to 
     the aggrieved person for the relief provided in subsection 
     (d).
       ``(2) Disclosure.--A video tape service provider or book 
     seller may disclose personally identifiable information 
     concerning any consumer--
       ``(A) to the consumer;
       ``(B) to any person with the informed, written consent of 
     the consumer given at the time the disclosure is sought;
       ``(C) to a law enforcement agency pursuant to a warrant 
     issued under the Federal Rules of Criminal Procedure, an 
     equivalent State warrant, or a court order issued in 
     accordance with paragraph (4);
       ``(D) to any person if the disclosure is solely of the 
     names and addresses of consumers and if--
       ``(i) the video tape service provider or book seller, as 
     the case may be, has provided the consumer, in a clear and 
     conspicuous manner, with the opportunity to prohibit such 
     disclosure; and
       ``(ii) the disclosure does not identify the title, 
     description, or subject matter of any video tapes or other 
     audio visual material, or books magazines, or other printed 
     material, except that the subject matter of such materials 
     may be disclosed if the disclosure is for the exclusive use 
     of marketing goods and services directly to the consumer;
       ``(E) to any person if the disclosure is incident to the 
     ordinary course of business of the video tape service 
     provider or book seller; or
       ``(F) pursuant to a court order, in a civil proceeding upon 
     a showing of compelling need for the information that cannot 
     be accommodated by any other means, if--
       ``(i) the consumer is given reasonable notice, by the 
     person seeking the disclosure, of the court proceeding 
     relevant to the issuance of the court order; and
       ``(ii) the consumer is afforded the opportunity to appear 
     and contest the claim of the person seeking the disclosure.
       ``(3) Safeguards.--If an order is granted pursuant to 
     subparagraph (C) or (F) of paragraph (2), the court shall 
     impose appropriate safeguards against unauthorized 
     disclosure.
       ``(4) Court orders.--A court order authorizing disclosure 
     under paragraph (2)(C) shall issue only with prior notice to 
     the consumer and only if the law enforcement agency shows 
     that there is probable cause to believe that a person has 
     engaged, is engaging, or is about to engage in criminal 
     activity and that the records or other information sought are 
     material to the investigation of such activity. In the case 
     of a State government authority, such a court order shall not 
     issue if prohibited by the law of such State. A court issuing 
     an order pursuant to this subsection, on a motion made 
     promptly by the video tape service provider or the book 
     seller, may quash or modify such order if the information or 
     records requested are unreasonably voluminous in nature or if 
     compliance with such order otherwise would cause an 
     unreasonable burden on such provider or seller, as the case 
     may be.
       ``(c) Library Records.--
       ``(1) In general.--Any library that knowingly discloses, to 
     any person, personally identifiable information concerning 
     any patron of the library shall be liable to the aggrieved 
     person as provided in subsection (d).
       ``(2) Disclosure.--A library may disclose personally 
     identifiable information concerning any patron--
       ``(A) to the patron;
       ``(B) to any person with the informed written consent of 
     the patron given at the time the disclosure is sought;
       ``(C) to a law enforcement agency pursuant to a warrant 
     issued under the Federal Rules of Criminal Procedure, an 
     equivalent State warrant, or a court order issued in 
     accordance with paragraph (4);
       ``(D) to any person if the disclosure is solely of the 
     names and addresses of patrons and if--
       ``(i) the library has provided the patron with a written 
     statement that affords the patron the opportunity to prohibit 
     such disclosure; and
       ``(ii) the disclosure does not reveal, directly or 
     indirectly, the title, description, or subject matter of any 
     library materials borrowed or services utilized by the 
     patron;
       ``(E) to any authorized person if the disclosure is 
     necessary for the retrieval of overdue library materials or 
     the recoupment of compensation for damaged or lost library 
     materials; or
       ``(F) pursuant to a court order, in a civil proceeding upon 
     a showing of compelling need for the information that cannot 
     be accommodated by any other means, if--
       ``(i) the patron is given reasonable notice, by the person 
     seeking the disclosure, of the court proceeding relevant to 
     the issuance of the court order; and
       ``(ii) the patron is afforded the opportunity to appear and 
     contest the claim of the person seeking the disclosure.
       ``(3) Safeguards.--If an order is granted pursuant to 
     subparagraph (C) or (F) of paragraph (2), the court shall 
     impose appropriate safeguards against unauthorized 
     disclosure.
       ``(4) Court orders.--A court order authorizing disclosure 
     under paragraph (2)(C) shall issue only with prior notice to 
     the patron and only if the law enforcement agency shows that 
     there is probable cause to believe that a person has engaged, 
     is engaging or is about to engage in criminal activity and 
     that the records or other information sought are material to 
     the investigation of such activity. In the case of a State 
     government authority, such a court order shall not issue if 
     prohibited by the law of such State. A court issuing an order 
     pursuant to this subsection, on a motion made promptly by the 
     library, may quash or modify such order if the information or 
     records requested are unreasonably voluminous in nature or if 
     compliance with such order otherwise would cause an 
     unreasonable burden on the library.''.
       (b) Clerical Amendment.--The item relating to section 2701 
     in the analysis for chapter 121 of title 18, United States 
     Code, is amended to read as follows:

``2710. Wrongful disclosure of video tape rental or sale records and 
              library loan and book sale records.''.

        TITLE IV--PRIVACY PROTECTION FOR SATELLITE HOME VIEWERS

     SEC. 401. PRIVACY PROTECTION FOR SUBSCRIBERS OF SATELLITE 
                   TELEVISION SERVICES FOR PRIVATE HOME VIEWING.

       (a) In General.--Section 631 of the Communications Act of 
     1934 (47 U.S.C. 551) is amended to read as follows:

     ``SEC. 631. PRIVACY OF SUBSCRIBER INFORMATION FOR SUBSCRIBERS 
                   OF CABLE SERVICE AND SATELLITE TELEVISION 
                   SERVICE.

       ``(a) Notice to Subscribers Regarding Personally 
     Identifiable Information.--At the time of entering into an 
     agreement to provide any cable service, satellite home 
     viewing service, or other service to a subscriber, and not 
     less often than annually thereafter, a cable operator, 
     satellite carrier, or distributor shall provide notice in the 
     form of a separate, written statement to such subscriber that 
     clearly and conspicuously informs the subscriber of--
       ``(1) the nature of personally identifiable information 
     collected or to be collected with respect to the subscriber 
     as a result of the provision of such service and the nature 
     of the use of such information;
       ``(2) the nature, frequency, and purpose of any disclosure 
     that may be made of such information, including an 
     identification of the types of persons to whom the disclosure 
     may be made;
       ``(3) the period during which such information will be 
     maintained by the cable operator, satellite carrier, or 
     distributor;
       ``(4) the times and place at which the subscriber may have 
     access to such information in accordance with subsection (d); 
     and
       ``(5) the limitations provided by this section with respect 
     to the collection and disclosure of information by the cable 
     operator, satellite carrier, or distributor and the right of 
     the subscriber under this section to enforce such 
     limitations.
       ``(b) Collection of Personally Identifiable Information.--
       ``(1) In general.--Except as provided in paragraph (2), a 
     cable operator, satellite carrier, or distributor shall not 
     use its cable or satellite system to collect personally 
     identifiable information concerning any subscriber without 
     the prior written or electronic consent of the subscriber.
       ``(2) Exception.--A cable operator, satellite carrier, or 
     distributor may use its cable or satellite system to collect 
     information described in paragraph (1) in order to--
       ``(A) obtain information necessary to render a cable or 
     satellite service or other service provided by the cable 
     operator, satellite carrier, or distributor to the 
     subscriber; or
       ``(B) detect unauthorized reception of cable or satellite 
     communications.
       ``(c) Disclosure of Personally Identifiable Information.--
       ``(1) In general.--Except as provided in paragraph (2), a 
     cable operator, satellite carrier, or distributor may not 
     disclose personally identifiable information concerning any 
     subscriber without the prior written or electronic consent of 
     the subscriber and shall

[[Page 7174]]

     take such actions as are necessary to prevent unauthorized 
     access to such information by a person other than the 
     subscriber or the cable operator, satellite carrier, or 
     distributor.
       ``(2) Exceptions.--A cable operator, satellite carrier, or 
     distributor may disclose information described in paragraph 
     (1) if the disclosure is--
       ``(A) necessary to render, or conduct a legitimate business 
     activity related to, a cable or satellite service or other 
     service provided by the cable operator, satellite carrier, or 
     distributor to the subscriber;
       ``(B) subject to paragraph (3), made pursuant to a court 
     order authorizing such disclosure, if the subscriber is 
     notified of such order by the person to whom the order is 
     directed; or
       ``(C) a disclosure of the names and addresses of 
     subscribers to any other provider of cable or satellite 
     service or other service, if--
       ``(i) the cable operator, satellite carrier, or distributor 
     has provided the subscriber the opportunity to prohibit or 
     limit such disclosure; and
       ``(ii) the disclosure does not reveal, directly or 
     indirectly--

       ``(I) the extent of any viewing or other use by the 
     subscriber of a cable or satellite service or other service 
     provided by the cable operator, satellite carrier, or 
     distributor; or
       ``(II) the nature of any transaction made by the subscriber 
     over the cable or satellite system of the cable operator, 
     satellite carrier, or distributor.

       ``(3) Court orders.--A governmental entity may obtain 
     personally identifiable information concerning a cable or 
     satellite subscriber pursuant to a court order only if, in 
     the court proceeding relevant to such court order--
       ``(A) such entity offers clear and convincing evidence that 
     the subject of the information is reasonably suspected of 
     engaging in criminal activity and that the information sought 
     would be material evidence in the case; and
       ``(B) the subject of the information is afforded the 
     opportunity to appear and contest such entity's claim.
       ``(d) Subscriber Access to Information.--A cable or 
     satellite subscriber shall be provided access to all 
     personally identifiable information regarding that subscriber 
     that is collected and maintained by a cable operator, 
     satellite carrier, or distributor. Such information shall be 
     made available to the subscriber at reasonable times and at a 
     convenient place designated by such cable operator, satellite 
     carrier, or distributor. A cable or satellite subscriber 
     shall be provided reasonable opportunity to correct any error 
     in such information.
       ``(e) Destruction of Information.--A cable operator, 
     satellite carrier, or distributor shall destroy personally 
     identifiable information if the information is no longer 
     necessary for the purpose for which it was collected and 
     there are no pending requests or orders for access to such 
     information under subsection (d) or pursuant to a court 
     order.
       ``(f) Relief.--
       ``(1) In general.--Any person aggrieved by any act of a 
     cable operator, satellite carrier, or distributor in 
     violation of this section may bring a civil action in a 
     district court of the United States.
       ``(2) Damages and costs.--In any action brought under 
     paragraph (1), the court may award a prevailing plaintiff--
       ``(A) actual damages but not less than liquidated damages 
     computed at the rate of $100 a day for each day of violation 
     or $1,000, whichever is greater;
       ``(B) punitive damages; and
       ``(C) reasonable attorneys' fees and other litigation costs 
     reasonably incurred.
       ``(3) No effect on other remedies.--The remedy provided by 
     this subsection shall be in addition to any other remedy 
     available under any provision of law to a cable or satellite 
     subscriber.
       ``(g) Definitions.--In this section:
       ``(1) Distributor.--The term `distributor' has the meaning 
     given that term in section 119(d)(1) of title 17, United 
     States Code.
       ``(2) Cable operator.--
       ``(A) In general.--The term `cable operator' has the 
     meaning given that term in section 602.
       ``(B) Inclusion.--The term includes any person who--
       ``(i) is owned or controlled by, or under common ownership 
     or control with, a cable operator; and
       ``(ii) provides any wire or radio communications service.
       ``(3) Other service.--The term `other service' includes any 
     wire, electronic, or radio communications service provided 
     using any of the facilities of a cable operator, satellite 
     carrier, or distributor that are used in the provision of 
     cable service or satellite home viewing service.
       ``(4) Personally identifiable information.--The term 
     `personally identifiable information' does not include any 
     record of aggregate data that does not identify particular 
     persons.
       ``(5) Satellite carrier.--The term `satellite carrier' has 
     the meaning given that term in section 119(d)(6) of title 17, 
     United States Code.''.
       (b) Notice With Respect to Certain Agreements.--
       (1) In general.--Except as provided in paragraph (2), a 
     cable operator, satellite carrier, or distributor who has 
     entered into agreements referred to in section 631(a) of the 
     Communications Act of 1934, as amended by subsection (a), 
     before the date of enactment of this Act, shall provide any 
     notice required under that section, as so amended, to 
     subscribers under such agreements not later than 180 days 
     after that date.
       (2) Exception.--Paragraph (1) shall not apply with respect 
     to any agreement under which a cable operator, satellite 
     carrier, or distributor was providing notice under section 
     631(a) of the Communications Act of 1934, as in effect on the 
     day before the date of enactment of this Act, as of such 
     date.
                                  ____


           Section-by-Section Analysis of Leahy E-Rights Act

       Sec. 1. Short Title.--The Act may be cited as the 
     ``Electronic Rights (E-RIGHTS) for the 21st Century Act.''
       Sec. 2. Purposes.--The Act has three general purposes: (1) 
     promoting the privacy and constitutional rights of 
     individuals and organizations in networked computer systems, 
     and the security of critical information infrastructures, 
     while properly balancing law enforcement access needs; (2) 
     encouraging Americans to develop and deploy encryption 
     technology and to promote the use of encryption by Americans 
     to protect the security, confidentiality and privacy of their 
     lawful wire and electronic communications and stored 
     electronic information; and (3) establishing privacy 
     standards and procedures for law enforcement officers to 
     obtain decryption assistance for encrypted communications and 
     information.
       Sec. 3. Findings.--The Act enumerates twenty congressional 
     findings that law enforcement investigative and electronic 
     surveillance needs must be balanced with the right to privacy 
     and other rights protected under the Fourth Amendment of the 
     Constitution; encryption technology, which is widely 
     available worldwide, is useful in protecting the privacy, 
     security, and confidentiality of the national and global 
     information infrastructure; Americans should be free to use, 
     and American businesses free to compete and sell, encryption 
     technology, programs and products; and given the convergence 
     among digital media, privacy safeguards should be applied 
     more uniformly to provide a level competitive playing field.
       Sec. 4. Definitions.--The terms ``agency'', ``person'' and 
     ``state'' have the same meaning given those terms in 
     specified sections of title 18, United States Code, except 
     that the term ``agency'' also includes the United States 
     Postal Service.
       Additional definitions are provided for the following 
     terms:
       The terms ``encrypt'' and ``encryption'' mean the use of 
     mathematical formulas or algorithms to scramble or unscramble 
     electronic data or communications for purposes of 
     confidentiality, integrity, or authenticity. As defined, the 
     terms cover a broad range of scrambling techniques and 
     applications including cryptographic applications such as PGP 
     or RSA's encryption algorithms; steganography; 
     authentication; and winnowing and chafing.
       The term ``encryption product'' includes any hardware, 
     software, devices, or other technology with encryption 
     capabilities, whether or not offered for sale or 
     distribution.
       The term ``key'' means the variable information used in or 
     produced by a mathematical formula to encrypt or decrypt wire 
     or electronic communications or electronically stored 
     information.
       The term ``United States person'' means any citizen of the 
     United States or legal entity organized under U.S. law that 
     has its principal place of business in this country.


     TITLE I--PRIVACY PROTECTION FOR COMMUNICATIONS AND ELECTRONIC 
                              INFORMATION

       Sec. 101. Enhanced Privacy Protection for Information on 
     Computer Networks.--The Act modifies subsection (b) of 
     section 2703 of title 18, United States Code, to extend 
     privacy protections to electronic information stored on 
     computer networks.
       When held in a person's home, records may only be seized 
     pursuant to a warrant based upon probable cause, or compelled 
     under a subpoena, which may be challenged and quashed. In 
     both instances, the record owner has notice of the search and 
     an opportunity to challenge it. By contrast, under United 
     States v. Miller, 425 U.S. 435 (1976) (customer has no 
     standing to object to bank disclosure of customer records), 
     and its progeny, records in the possession of third parties 
     do not receive Fourth Amendment protection. A governmental 
     agent with a subpoena based upon mere relevance may compel a 
     third party to produce records originating with or belonging 
     to another person, without notice to the person to whom the 
     records pertain. The record subject may never receive notice 
     or any meaningful opportunity to challenge the production.
       This lack of protection for records held by third parties 
     presents new privacy problems in the information age. With 
     the rise of network computing, electronic information that 
     was previously held on a person's own computer is 
     increasingly stored elsewhere, such as on a network server. 
     In many cases the location of such information is not even 
     known to the record's owner.

[[Page 7175]]

       Furthermore, Web-based information services are attracting 
     customers by offering free storage and services accessible 
     from any computer. Companies like When.com, Briefcase.com, 
     Yahoo and Netscape offer calendars, address books, ``to do'' 
     lists, stock portfolios and storage space, while more 
     targeted companies, like dietwatch.com let users keep track 
     of their diets. Potential customers of such services should 
     not be discouraged from subscribing due to the weaker privacy 
     and confidentiality protections afforded their remotely 
     stored records than if those records were stored on the 
     customer's own laptop or PC.
       Under current law, these services are covered by the remote 
     computing service provision in 18 U.S.C. Sec. 2703(b), which 
     authorizes a governmental entity to require disclosure of 
     those communications without notice to the subscriber. A 
     remote computing service provides storage or computer 
     processing services to customers and is not authorized to 
     access the contents of the electronic communications created 
     by the customer.
       The Act amends section 2703(b) to extend the same privacy 
     protections to a person's records whether storage takes place 
     on that person's personal computer in their possession or in 
     networked electronic storage. The amendment to section 
     2703(b) would authorize a governmental entity to require 
     disclosure of electronic communications or records stored by 
     a remote computing service pursuant to (i) a state or federal 
     warrant (based upon probable cause), with a copy to be served 
     on the customer or record owner at the same time the warrant 
     is served on the remote computing service holding the record; 
     or (ii) a subpoena that must also be served on the customer 
     or record owner with a meaningful opportunity to challenge 
     the subpoena.
       The penalties for violating this section would not change 
     and do not currently carry criminal fines or any term of 
     imprisonment. (See 18 U.S.C. Sec. 2701(c) (criminal offense 
     provision does not apply to ``conduct authorized . . . in 
     section 2703''). Instead, under 18 U.S.C. Sec. 2707, a 
     government agent that violates this section is subject to 
     disciplinary action, and a service provider that violates 
     this section is subject to civil action for appropriate 
     relief.
       Sec. 102. Government Access to Location Information.--The 
     Act adds a new subsection (g) to section 2703 of title 18, 
     United States Code, to extend privacy protections for 
     physical location information generated on a real time basis 
     by mobile electronic communications services, such as 
     cellular telephones. This section requires that physical 
     location information generated by a wireless service provider 
     may only be released to a governmental entity pursuant to a 
     court order based upon probable cause.
       Location information on wireless telephones is 
     fundamentally different from the type of location information 
     that can be associated with a wireline telephone. Wireless 
     telephones are normally directly associated with the physical 
     presence of the individual user, and are carried by those 
     users into places where there is a reasonable expectation of 
     privacy. Tracking of cellular telephones, even more-so than 
     automobiles, implicates the movements of a person going about 
     his or her business and personal life.
       Should the government seek to track a person by 
     surreptitiously placing a mobile tracking device on that 
     person's automobile, a court order would be required based 
     upon a finding of probable cause. (See 18 U.S.C. Sec. 3117; 
     Fed. R. Cr. P. 41; U.S. v. In re Application, 155 F.R.D. 401, 
     402 (D. MA 1994)). No less should be required for use by the 
     government of a wireless telephone as a tracking device.
       Civil liberties experts have noted that cellular telephone 
     technology ``is proceeding in the direction of providing more 
     precise location information, a trend that has been boosted 
     by the rulings of the Federal Communications Commission (FCC) 
     in its ``E911'' (Enhanced 911) proceeding, which requires 
     service providers to develop a locator capability for medical 
     emergency and rescue purposes.'' (Testimony of Deirdre 
     Mulligan, Center for Democracy and Technology, before the 
     House Committee on the Judiciary, Subcommittee on Courts and 
     Intellectual Property, March 26, 1998). Specifically, the FCC 
     is requiring wireless service providers to modify their 
     systems to enable them to relay to public safety authorities 
     the cell site location of 911 callers. Carriers must also 
     take steps to deploy the capability to provide latitude and 
     longitude information of wireless telephone callers within 
     125 meters and, ultimately, to locate a caller within a 40-
     foot radius for longitude, latitude and altitude, to enable 
     locating a caller within a tall building. (See In re Revision 
     of the Commission's Rules to Ensure Compatibility with 
     Enhanced 911 Emergency Calling Sys., CC Docket No. 94-102, 
     Report and Order and Further Notice of Proposed Rulemaking 
     (last modified Jan. 2, 1997)).
       In a separate proceeding, the FCC in October 1998 proposed 
     ruling that a location tracking capability for wireless 
     telephones was required under the Communications Assistance 
     for Law Enforcement Act (CALEA). The FCC has tentatively 
     concluded that carriers must have the capability of providing 
     to law enforcement a caller's cell site location at the 
     beginning and termination of a call. (See In re CALEA, CC 
     Docket No. 97-213, Further Notice of Proposed Rulemaking 
     (adopted October 22, 1998), 63 Fed. Reg. 63639, November 16, 
     1998). Whether this capability is ultimately required by the 
     FCC as part of CALEA, there is no doubt that real-time 
     location information will be increasingly available to law 
     enforcement agencies. Accordingly, the appropriate standard 
     for law enforcement access to such location information 
     should be clarified.
       Sec. 103. Enhanced Privacy Protection for Transactional 
     Information Obtained From Pen Registers or Trap and Trace 
     Devices.--The Act enhances privacy protections for 
     information obtained from pen register and trap and trace 
     devices by amending section 3123(a) of title 18, United 
     States Code. Under current law, the court is relegated to a 
     mere ministerial function and must issue a pen register or 
     trap and trace order whenever presented with a signed 
     certification of a prosecutor.
       This amendment authorize the court to review the 
     information presented in the certification to determine 
     whether the information likely to be obtained is relevant to 
     an ongoing criminal investigation. The amendment would not 
     change the standard for issuance of an ex parte order 
     authorizing use of a pen register or trap and trace device.
       In addition, the amendment would require law enforcement to 
     minimize the information obtained from the pen register or 
     trap and trace device that is not related to the dialing and 
     signaling information utilized in call processing.
       Currently, pen registers capture not just such dialing 
     information but also any other dialed digits after a call has 
     been connected. The Department of Justice has taken the 
     position in connection with legislation pending in the 105th 
     Congress regarding law enforcement access to clone numeric 
     pagers that digits dialed and transmitted after a call has 
     been placed may consist of electronic impulses but ``are the 
     `contents' of the call,'' subject to more stringent privacy 
     protections under the Fourth Amendment. This provision would 
     provide protection for those ``contents.''
       Sec. 104. Privacy Protection for Conference Calls.--This 
     section clarifies the circumstances under which the 
     government may continue monitoring a three-way call or 
     conference call after a facility specified in the wiretap 
     order is no longer connected to the call. The Fourth 
     Amendment requires the government when conducting a search 
     and seizure to have a warrant ``particularly describing the 
     place to be searched, and the person or things to be 
     seized.'' Under the terminology of the wiretap laws, the 
     place to be searched is called a ``facility,'' which has 
     generally been interpreted to mean a subscriber telephone 
     line.
       Modern three-way and conference calling technology allows 
     an individual to initiate a three-way or conference call with 
     two or more other parties and then to ``drop off'' the call 
     while the other parties continue communicating. At that 
     point, the telephone line specified in the order is no longer 
     connected to the call. This section makes it clear that the 
     government may continue monitoring the communications of 
     parties remaining on a conference call when the facility 
     identified in the wiretap order is no longer participating 
     only if the government has shown and the authorizing judge 
     has found that an individual who remains a party to the 
     communication is committing, has committed or is about to 
     commit a particular offense enumerated in the wiretap order 
     and that communications concerning that offense will be 
     obtained through the continuing interception. Since these are 
     the basic standards of the wiretap law, which the government 
     must satisfy for any interception, the effect of the change 
     is to make it clear that the interception of the remaining 
     parties to a three-way or conference call must satisfy the 
     basic requirements of the wiretap law.
       Sec. 105. Enhanced Privacy Protection for Packet Networks, 
     Including the Internet.--This section amends subsection 
     3121(c) of title 18 to require law enforcement agencies 
     conducting pen register or trap and trace investigations on 
     packet communications to use reasonably available technology 
     to ensure that they do not intercept the content of 
     communications without a Title III order. The electronic 
     surveillance laws draw a distinction between the interception 
     of content, which requires a court order based on the high 
     probable cause standard, and the interception of call routing 
     information, which is obtained under the lower pen register 
     or trap and trace authority in sections 3121-3127. The 
     Communications Assistance for Law Enforcement Act of 1994 
     requires carriers, to the extent reasonably achievable, to 
     design their systems to ensure that law enforcement agencies 
     conducting pen register and trap and trace investigations do 
     not intercept the content of communications. Subsection 
     3121(c), originally added by CALEA, imposed a mirror 
     obligation on law enforcement to use pen register or trap and 
     trace equipment that does not record or decode content.
       Sec. 105 amends 3121(c) to make it clear that obligation 
     applies to packet switched communications, which are based on 
     technology that breaks a digital message into

[[Page 7176]]

     many small packets, each consisting of addressing or routing 
     information plus a segment of content. This change makes it 
     clear that law enforcement agencies using pen registers or 
     trap and trace devices in packet switched environments must, 
     if the technology is reasonably available, record or decode 
     only addressing information, not content.
       Sec. 106. Privacy Safeguards for Information Collected by 
     Internet Registrars.--The Act would amend section 2703 of 
     title 18, United States Code, to add a new subsection (g) 
     protecting the privacy of records pertaining to persons who 
     register for a second-level domain name, which serves as an 
     Internet address. Just as consumers may, by obtaining an 
     unlisted telephone number for privacy, safety or other 
     reasons, keep confidential personally identifiable 
     information associated with telephone numbers, such as name 
     and address, Internet users should be able to get an 
     ``unlisted'' Internet address. A domain name registration 
     service provider that violates this section would be subject 
     to civil action for appropriate relief, under 18 U.S.C. 
     Sec. 2707.
       Internet domain names are the unique identifiers or 
     addresses that enables businesses, organizations, and 
     individuals to communicate and conduct commerce on the 
     Internet.
       Until recently, pursuant to a cooperative agreement with 
     the Department of Commerce, Network Solutions, Inc. (NSI), 
     was the exclusive registrar assigning domain names ending in 
     .com, .net, .org and .edu. As a registrar, NSI enters new 
     domain names into the master directory or registry.
       The U.S. government is in the process of privatizing the 
     administration of the Internet domain name system (DNS) to 
     increase competition in the registration of domain names. 
     With the advent of competition in the DNS, NSI will continue 
     to operate the .com, .net, .org registries, but other 
     companies, including domain name registration resellers, 
     country code registries, ISPs, and major telecommunications 
     firms, may be able to offer competing registrar services or 
     registry/registrar services using other top level domains.
       Normally, in order to process a request for a domain name, 
     registrars and registries must collect personal information 
     for billing and other purposes. The information currently 
     collected by NSI includes: name, organization, address, 
     country, contacts for administrative, technical and billing 
     matters, telephone and fax numbers, and e-mail address. This 
     information, along with the date on which the name was 
     registered and information on the computer network used by 
     the registrant to connect to the Internet, is compiled in a 
     registry and made publicly available on an Internet-
     accessible ``WHOIS'' database.
       This database provides an efficient way of identifying and 
     contacting persons operating Web sites for both legitimate or 
     illegitimate purposes, such as online trademark and copyright 
     infringement. The personally identifiable information placed 
     on the WHOIS database has been misused for ``spamming'', or 
     sending unsolicited and unwanted e-mail messages to the 
     persons who are registered with domain names. In addition, 
     this information has been used by ``cyber-squatters'' to 
     appropriate domain names for resale to the rightful owners. 
     Despite these misuses and abuses of the WHOIS database, this 
     information is valuable to marketers, news organizations, 
     governments, and intellectual property owners.
       Personally identifiable information collected by domain 
     name registrars has privacy implications. For example, when 
     human rights organizations obtain a domain name to use the 
     Internet for political activities, disclosure of the required 
     mailing and contact information may be dangerous. The 
     importance of anonymity is amply demonstrated by the recent 
     example of people in Kosovo, who are using anonymous remail 
     services to try to maintain confidential communications and 
     avoid detection by Serbian forces. (See New York Times, at 
     C4, April 19, 1998). As one civil liberties organization has 
     said, ``Internet users should not have to sacrifice their 
     privacy and personal safety to exercise their right to free 
     speech and expression.''
       The amendment seeks to balance these competing interests by 
     setting procedures for access to personally identifiable 
     information regarding domain name holders. The procedures 
     allow continued public access to information identifying the 
     service provider hosting the website of the subscriber or 
     customer, and are consistent with procedures adopted by the 
     Congress in the Digital Millennium Copyright Act (DMCA), P.L. 
     105-304, 112 STAT. 2883 (1998), which authorizes copyright 
     owners to obtain information identifying the operators of Web 
     sites or other Internet addresses engaged in possible 
     copyright infringements through use of an expedited subpoena 
     process. The DMCA provides that copyright owners ``may 
     request a clerk of any U.S. district court to issue a 
     subpoena to a service provider for identification of an 
     alleged infringer.'' 17 U.S.C. Sec.  512(h)(1).
       Sec. 107. Reports Concerning Governmental Access to 
     Electronic Communications.--This section requires the 
     Attorney General to provide to Congress annual reports on the 
     number and nature of government interceptions of E-mail and 
     other electronic communications. To provide the appropriate 
     oversight, the Congress, other policy makers and the public 
     need information about government practices under the law. 
     While the wiretap provisions of Title III require detailed 
     reports by the courts and prosecutors on the number of 
     wiretap orders issued, there is no similar requirement for 
     collecting and publishing information on the nature and 
     extent of government access to E-mail and other electronic 
     communications under section 2703. Section 107 corrects this 
     deficiency by requiring the Attorney General to transmit to 
     Congress on an annual basis a report on the warrants, court 
     orders and subpoenas applied for and issued under section 
     2703.
       Sec. 108. Roving Wiretaps.--This section amends subsection 
     (11)(b) of section 2518 of title 18, United States Code, 
     concerning the standard for issuance of a roving wiretap. 
     This standard was modified without debate or hearing in the 
     Intelligence Authorization Act for Fiscal Year 1999, P.L. 
     105-272, that passed in the final days of the 105th Congress, 
     to address the concern of the Department of Justice that the 
     prior standard for roving taps was too difficult to meet 
     because it required the government to demonstrate that the 
     subjective intent of the target was to avoid surveillance. 
     However, the modification eliminated virtually any standard 
     at all.
       This section would amend the roving wiretap provision by 
     preserving the central rationale for roving taps: that they 
     are only appropriate where the subject is changing facilities 
     in a way that thwarts interception. As amended by this 
     section, (b)(i) does not require the government to prove 
     intent; it only requires the government to show effect. 
     Alternatively, under (b)(ii), the government can obtain a 
     roving tap where it can show the intent of the target, e.g., 
     where an associate of the target informs the government that 
     the target intends to evade surveillance by changing 
     facilities.
       Sec. 109. Authority to Provide Customer Location 
     Information For Emergency Purposes.--This section amends 
     section 222 of the Communications Act of 1934 (47 U.S.C. 222) 
     to authorize telecommunications carriers to: (1) provide call 
     location information concerning the user of a commercial 
     mobile service to providers of emergency services, to inform 
     such user's legal guardian or family members of the user's 
     location in an emergency situation involving the risk of 
     death or serious bodily injury, or to providers of 
     information services to assist in the delivery of emergency 
     response services; and (2) transmit automatic crash 
     notification system information as part of the operation of 
     such a system. In addition, this amendment requires the 
     express prior customer authorization of the use of either of 
     the above information for other than the stated purposes.
       Finally, the amendment requires a telecommunications 
     carrier that provides telephone exchange service to provide 
     subscriber list information (including information on 
     unlisted subscribers) that is in its sole possession or 
     control to providers of emergency services and emergency 
     support services for use solely in delivering, or assisting 
     in delivering, emergency services.
       This provision was included by Representative Markey (D-MA) 
     to the ``Wireless Communications and Public Safety Act of 
     1999,'' H.R. 438, which passed the House on February 23, 
     1999.
       Sec. 110. Confidentiality of Subscriber Information.--This 
     section amends section 2703(c) of title 18, United States 
     Code, to protect the confidentiality of information provided 
     to and collected by electronic communication and remote 
     computing services about their subscribers. Under current 
     law, these service providers may disclose a record or other 
     information pertaining to a subscriber or customer to any 
     person other than a governmental entity.
       By contrast, cable operators may not release to any person, 
     including the government, ``personally identifiable 
     information'' about a customer'' without the prior written or 
     electronic consent of the subscriber concerned and shall take 
     such actions as are necessary to prevent unauthorized access 
     to such information by a person other than the subscriber or 
     cable operator.'' 47 U.S.C. Sec.  551(c)(1). Similarly, 
     telecommunications carriers are generally barred from using, 
     disclosing or permitting access to individually identifiable 
     customer proprietary network information, such as the 
     services used and billing information, except ``with the 
     approval of the customer.'' 47 U.S.C. Sec.  222(c)(1). 
     Telecommunications carriers are now offering online and 
     Internet access services. In addition, digital convergence is 
     allowing cable operators to provide Internet services. These 
     developments only highlight the disparities in the privacy 
     regimes applicable to different providers.
       This section would authorize providers of electronic 
     communication and remote computing services to disclose 
     records or information pertaining to their subscribers or 
     customers only if such disclosure is: (1) necessary in 
     connection with rendering services; (2) necessary to protect 
     the rights or property of the provider; (3) required by law; 
     (4)

[[Page 7177]]

     requested by the subscriber; or (5) if the provider has 
     provided the subscriber with the opportunity in a clear and 
     conspicuous manner, to prohibit such disclosure. In addition, 
     providers of electronic communication and remote computing 
     services are authorized to use aggregate subscriber 
     information from which individual subscriber identities have 
     been removed in any manner they wish.


               TITLE II--PROMOTING THE USE OF ENCRYPTION

       Sec. 201. Freedom To Use Encryption.
       (a) No Domestic Encryption Controls.--The Act legislatively 
     confirms current practice in the United States that any 
     person in this country may lawfully use any encryption 
     method, regardless of encryption algorithm, key length, 
     existence of key recovery or other plaintext access 
     capability, or implementation selected. Specifically, the Act 
     states the freedom of any person in the U.S., as well as U.S. 
     persons in a foreign country, to make, use, import, and 
     distribute any encryption product without regard to its 
     strength or the use of key recovery, subject to the other 
     provisions of the Act.
       (b) Prohibition on Government-Compelled Key Escrow or Key 
     Recovery Encryption.--The Act prohibits any federal or state 
     agency from compelling the use of key recovery systems or 
     other plaintext access systems. Agencies may not set 
     standards, or condition approval or benefits, to compel use 
     of these systems. U.S. agencies may not require persons to 
     use particular key recovery products for interaction with the 
     government. These prohibitions do not apply to systems for 
     use solely for the internal operations and telecommunications 
     systems of a U.S. or a State government agency.
       (c) Use of Encryption For Authentication or Integrity 
     Purposes.--The Act requires that the use of encryption 
     products shall be voluntary and that no federal or state 
     agency may link the use of encryption for authentication or 
     identity (such as through certificate authority and digital 
     signature systems) to the use of encryption for 
     confidentiality purposes. For example, conditioning receipt 
     of a digital certificate from a licensed certificate 
     authority on the use of key recovery would be prohibited.
       Sec. 202. Purchase and Use of Encryption Products by the 
     Federal Government.--The Act authorizes agencies of the 
     United States to purchase encryption products for internal 
     governmental operations and telecommunications systems. To 
     ensure that secure electronic access to the Government is 
     available to persons outside of and not operating under 
     contract with Federal agencies, the Act requires that any key 
     recovery features in encryption products used by the 
     Government interoperate with commercial encryption products.
       Sec. 203. Law Enforcement Decryption Assistance.--The Act 
     adds a new chapter 124 to Title 18, Part I, governing the 
     procedures for governmental access, including by foreign 
     governments, to decryption assistance from third parties.
       (a) In General.--New chapter 124 has four sections. This 
     chapter applies to wire or electronic communications and 
     communications in electronic storage, as defined in 18 U.S.C. 
     Sec.  2510, and to stored electronic data. It proscribes 
     procedures for law enforcement to obtain assistance in 
     decrypting encrypted electronic mail messages, encrypted 
     telephone conversations, encrypted facsimile transmissions, 
     encrypted computer transmissions and encrypted file transfers 
     over the Internet that are lawfully intercepted pursuant to a 
     wiretap order, under 18 U.S.C. Sec.  2518, or obtained 
     pursuant to lawful process, under 18 U.S.C. Sec.  2703, and 
     encrypted information stored on computers that are seized 
     pursuant to a search warrant or other lawful process.
       Sec.  2801. Definitions. Generally, the terms used in the 
     new chapter have the same meanings as in the federal wiretap 
     statute, 18 U.S.C. Sec.  2510. Definitions are provided for 
     ``decryption assistance'', ``decryption key'', ``encrypt; 
     encryption'', ``foreign government'' and ``official 
     request''.
       Sec.  2802. Access to decryption assistance for 
     communications. In the United States today, decryption keys 
     and other decryption assistance held by third parties 
     constitute third party records and may be disclosed to a 
     governmental entity with a subpoena or an administrative 
     request, and without any notice to the owner of the encrypted 
     data. Such a low standard of access creates new problems in 
     the information age because encryption users rely heavily on 
     the integrity of keys to protect personal information or 
     sensitive trade secrets, even when those keys are placed in 
     the hands of trusted agents for recovery purposes.
       Under new section 2802, in criminal investigations a third 
     party holding decryption keys or other decryption assistance 
     for wire or electronic communications may be required to 
     release such assistance pursuant to a court order, if the 
     court issuing the order finds that such assistance is needed 
     for the decryption of communications covered by the order. 
     Specifically, such an order for decryption assistance may be 
     issued upon a finding that the key or assistance is necessary 
     to decrypt communications or stored data lawfully intercepted 
     or seized. The standard for release of the key or provision 
     of decryption assistance is tied directly to the problem at 
     hand: the need to decrypt a message or information that the 
     government is otherwise authorized to intercept or obtain.
       This will ensure that third parties holding decryption keys 
     or decryption information need respond to only one type of 
     compulsory process--a court order. Moreover, this Act will 
     set a single standard for law enforcement, removing any extra 
     burden on law enforcement to demonstrate, for example, 
     probable cause for two separate orders (i.e., for the 
     encrypted communications or information and for decryption 
     assistance) and possibly before two different judges (i.e., 
     the judge issuing the order for the encrypted communications 
     or information and the judge issuing the order to the third 
     party able to provide decryption assistance).
       The Act reinforces the principle of minimization. The 
     decryption assistance provided is limited to the minimum 
     necessary to access the particular communications or 
     information specified by court order. Under some key recovery 
     schemes, release of a key holder's private key--rather than 
     an individual session key--might provide the ability to 
     decrypt every communication or stored file ever encrypted by 
     a particular key owner, or by every user in an entire 
     corporation, or by every user who was ever a customer of the 
     key holder. The Act protects against such over broad releases 
     of keys by requiring the court issuing the order to find that 
     the decryption assistance being sought is necessary. Private 
     keys may only be released if no other form of decryption 
     assistance is available.
       Notice of the assistance given will be included as part of 
     the inventory provided to subjects of the interception 
     pursuant to current wiretap law standards.
       For foreign intelligence investigations, new section 2802 
     allows FISA orders to direct third-party holders to release 
     decryption assistance if the court finds the assistance is 
     needed to decrypt covered communications. Minimization is 
     also required, though no notice is provided to the target of 
     the investigation.
       Under new section 2802, decryption assistance is only 
     required from third-parties (i.e., other than those whose 
     communications are the subject of interception), thereby 
     avoiding self-incrimination problems.
       Finally, new section 2802 generally prohibits any person 
     from providing decryption assistance for another person's 
     communications to a governmental entity, except pursuant to 
     the orders described.
       Sec.  2803. Access to decryption assistance for stored 
     electronic communications or records. New section 2803 
     governs access to decryption assistance for stored electronic 
     communications and records.
       As noted above, under current law third party decryption 
     assistance may be disclosed to a governmental entity with a 
     subpoena or even a mere request and without notice. This 
     standard is particularly problematic for stored encrypted 
     data, which may exist in insecure media but rely on 
     encryption to maintain security; in such cases easy access to 
     keys destroys the encryption security so heavily relied upon.
       Under new section 2803, third parties holding decryption 
     keys or other decryption assistance for stored electronic 
     communications may only release such assistance to a 
     governmental entity pursuant to (1) a state or federal 
     warrant (based upon probable cause), with a copy to be served 
     on the record owner at the same time the warrant is served on 
     the record holder; (2) a subpoena that must also be served on 
     the record owner with a meaningful opportunity to challenge 
     the subpoena; or (3) the consent of the record owner. This 
     standard closely mirrors the protection that would be 
     afforded to encryption keys that are actually kept in the 
     possession of those whose records were encrypted. In the 
     specific case of decryption assistance for communications 
     stored incident to transit (such as e-mail), notice may be 
     delayed under the standards laid out for delayed notice under 
     current law in section 2705(a)(2) of title 18, United States 
     Code.
       Sec.  2804. Foreign government access to decryption 
     assistance. New section 2804 creates standards for the U.S. 
     government to provide decryption assistance to foreign 
     governments. No law enforcement officer would be permitted to 
     release decryption keys to a foreign government, but only to 
     provide decryption assistance in the form of producing 
     plaintext. No officer would be permitted to provide 
     decryption assistance except upon an order requested by the 
     Attorney General or designee. Such an order could require the 
     production of decryption keys or assistance to the Attorney 
     General only if the court finds that (1) the assistance is 
     necessary to decrypt data the foreign government is 
     authorized to intercept under foreign law; (2) the foreign 
     country's laws provide ``adequate protection against 
     arbitrary interference with respect to privacy rights''; and 
     (3) the assistance is sought for a criminal investigation of 
     conduct that would violate U.S. criminal law if committed in 
     the United States.


    TITLE III--PRIVACY PROTECTION FOR LIBRARY AND BOOKSTORE RECORDS.

       Sec. 301. Wrongful Disclosure of Library and Bookstore 
     Records.--The Act amends section 2710 of title 18, United 
     States Code,

[[Page 7178]]

     to extend the privacy protections currently in place for 
     video rental and sale records to library and book sale 
     records, whether the transactions take place on-line or in a 
     physical store.
       Section 2710(a) is amended with definitions for the 
     following new terms: (1) ``book seller'' means any person 
     engaged in the business of selling books, magazines or other 
     printed material; (2) ``library'' means an institution which 
     operates as a public, university, college, or school library; 
     and (3) ``patron'' means a person who requests or receives 
     services within, or books or other materials on loan from, a 
     library.
       Section 2710(b) is amended by applying the same privacy 
     safeguards that apply to video tape rental and sale records 
     to book sale records. As amended, a book seller who knowingly 
     discloses personally identifiable information about a 
     consumer of such seller is liable to an aggrieved person in a 
     civil action. A book seller is authorized to disclose such 
     information: (1) to the consumer; (2) with the informed, 
     written consent of the consumer; (3) to a law enforcement 
     agency pursuant to a warrant or a court order based upon 
     probable cause to believe a person is engaging in criminal 
     activity and the records sought are material to the 
     investigation of such activity; (4) to any person, if the 
     disclosure is limited to the names and addresses of consumers 
     and these consumers have been given the opportunity to 
     prohibit such disclosure, which does not identify the subject 
     matter of the material purchased or rented by the consumers; 
     (5) to any person, if the disclosure is incident to the 
     ordinary course of business; or (6) pursuant to a court order 
     in a civil proceeding upon a showing of compelling need and 
     if the consumer is given reasonable notice and an opportunity 
     to appear and contest the claim of the person seeking 
     disclosure.
       A new section 2710(c) is added to address privacy 
     protections for library records. This new subsection provides 
     that a library which knowingly discloses personally 
     identifiable information about a patron is liable to the 
     aggrieved person in a civil action. A library is authorized 
     to disclose such information: (1) to the patron; (2) with the 
     informed, written consent of the patron; (3) to a law 
     enforcement agency pursuant to a warrant or court order based 
     upon probable cause to believe a person is engaging in 
     criminal activity and the records sought are material to the 
     investigation of such activity; (4) to any person, if the 
     disclosure is limited to the names and addresses of patrons 
     and the patrons have been given the opportunity to prohibit 
     such disclosure, which does not identify the subject matter 
     of the library services used by the patrons; (5) to any 
     person, if the disclosure is necessary for the retrieval of 
     overdue materials or the recoupment of compensation for 
     damaged or lost library materials; or (6) pursuant to a court 
     order in a civil proceeding upon a showing of compelling need 
     and if the patron is given reasonable notice and an 
     opportunity to appear and contest the claim of the person 
     seeking disclosure.


        TITLE IV--PRIVACY PROTECTION FOR SATELLITE HOME VIEWERS

       Sec. 401. Privacy Protection for Subscribers of Satellite 
     Services for Private Home Viewing.--This section amends 
     section 631 of the Communications Act of 1934 (codified at 47 
     U.S.C. Sec.  551), to extend the privacy protections 
     currently in place for subscribers of cable service to 
     subscribers of satellite home viewing services or other 
     services offered by cable or satellite carriers or 
     distributors.
       In the Cable Communications Policy Act of 1984 (``Cable 
     Act''), Congress established a nationwide standard for the 
     privacy protection of cable subscribers. (See H.R. Rep. No. 
     98-934, at 76, reprinted in 1984 U.S.C.C.A.N. 4655, 4713). 
     Since the Cable Act was adopted, an entirely new form of 
     access to television has emerged--home satellite viewing--
     which is especially popular in areas not served by cable. Yet 
     there is no statutory privacy protection for information 
     collected by home satellite viewing services about their 
     customers or subscribers. This title fills this gap by 
     amending the privacy provisions of the Cable Act to cover 
     home satellite viewing.
       The amendments do not change the rules governing access to 
     cable subscriber information. Instead, they merely rewrite 
     section 631 to add the words ``satellite home viewing 
     service'' and ``satellite carrier or distributor'' where 
     appropriate.
       The amendment does not address another inconsistency in the 
     law, which bears mentioning: should a cable company that 
     provides Internet services to its customers be subject to the 
     privacy safeguards in the Cable Act or in the Electronic 
     Communications Privacy (ECPA), which normally applies to 
     Internet service providers and contains obligations regarding 
     the disclosure of personally identifiable information to both 
     governmental and nongovernmental entities different from 
     those in the Cable Act? At least one court has noted the 
     ``statutory riddle raised by the entrance of cable operators 
     into the Internet services market,'' but declined ``to 
     resolve such ephemeral puzzles.'' In re Application of the 
     United States,--F.Supp.2d--, 1999 WL 74192 (D.Mass. Feb. 9, 
     1999).
                                 ______
                                 
      By Mr. LEAHY:
  S. 855. A bill to clarify the applicable standards of professional 
conduct for attorneys for the Government, and other purposes; to the 
Committee on the Judiciary.


      PROFESSIONAL STANDARDS FOR GOVERNMENT ATTORNEYS ACT OF 1999

       Mr. Leahy. Mr. President, I rise today to introduce 
     legislation that would clarify the professional standards 
     that apply to federal prosecutors and identify who has the 
     authority to set those standards. These are two questions 
     that have cried out for answers for years, and created 
     enormous tension between the Justice Department and virtually 
     everyone else.
       The Citizen's Protection Act, which is also known as the 
     ``McDade law,'' was passed last year to address these 
     important questions. This new law was intended to make clear 
     that a State -- not the Attorney General--has the authority 
     to make rules of conduct for attorneys practicing before 
     courts of that State. Rather than resolve the long-standing 
     tensions over this issue, the new law has only exacerbated 
     them. At a hearing before a Judiciary Subcommittee last 
     month, a number of law enforcement officials lined up to 
     criticize the new law.
       The Justice Department aggressively but unsuccessfully 
     opposed passage of the McDade law last year in favor of 
     continued reliance on controversial Justice Department 
     regulations issued in 1994--regulations which allow contacts 
     with represented persons and parties in certain 
     circumstances, even if such contacts are at odds with state 
     or local ethics rules.
       Independent Counsel. The debate over the professional 
     standards that apply to federal prosecutors comes at a time 
     of heightened public concern over the high-profile 
     investigations and prosecutions conducted by independent 
     counsels. Special prosecutors Kenneth Starr and Donald Smaltz 
     are the ``poster boys'' for unaccountable federal 
     prosecutors. They even have their own Web sites to promote 
     their work. By law, these special prosecutors are subject to 
     the ethical guidelines and policies of the Department of 
     Justice, and all of them claim to have conducted their 
     investigations and prosecutions in conformity with 
     Departmental policies. Yet, in practice, even the Department 
     has conceded in its March 1999 responses to my written 
     questions in connection with a July 1998 oversight hearing 
     that ``in general, the Department avoids commenting in any 
     way on how an independent counsel conducts his or her 
     investigation.''
       I am not alone in my concerns about the tactics of these 
     special prosecutors and, specifically, requiring a mother to 
     testify about her daughter's intimate relationships, 
     requiring a bookstore to disclose all the books a person may 
     have purchased, and breaching the longstanding understanding 
     of the relationship of trust between the Secret Service and 
     those it protects. I was appalled to hear a federal 
     prosecutor excuse a flimsy prosecution by announcing after 
     the defendant's acquittal that just getting the indictment 
     was a great deterrent. Trophy watches and television talk 
     show puffery should not be the trappings of prosecutors.
       One of the core complaints the Justice Department has 
     against the McDade law is that federal prosecutors would be 
     subject to restrictive State ethics rules regarding contacts 
     with represented persons. Yet a letter to The Washington Post 
     from the former Chairman of the ABA ethics committee pointed 
     out:
       ``[Anti-contact rules are] designed to protect individuals 
     like Monica Lewinsky, who have hired counsel and are entitled 
     to have all contacts with law enforcement officials go 
     through their counsel. As Ms. Lewinsky learned, dealing 
     directly with law enforcement officials can be intimidating 
     and scary, despite the fact that those inquisitors later 
     claimed it was okay for her to leave at any time.''
       The McDade Law. This is not to say that the McDade law is 
     the answer. This new law is not a model of clarity. It 
     subjects federal prosecutors to the ``State laws and rules'' 
     governing attorneys where the prosecutor engages in his or 
     her duties. A broad reading of this provision would seem to 
     turn the Supremacy Clause on its head. Does the reference to 
     ``State laws'' mean that federal prosecutors must comply with 
     state laws requiring the consent of all parties before a 
     conversation is recorded, or state laws restricting the use 
     of wiretaps? Furthermore, by referencing only the rules of 
     the state in which the prosecutor is practicing, does the new 
     law remove the traditional authority of a licensing state to 
     discipline a prosecutor in favor of the state in which the 
     prosecutor is practicing? The new law subjects federal 
     prosecutors not only to the laws and rules of the state in 
     which the attorney is practicing, but also to ``local Federal 
     court rules.'' What is a federal prosecutor supposed to do if 
     the state rules and local federal court rules conflict? 
     Finally, the new law does not address the possibility of a 
     uniform federal rule or set of rules governing attorney 
     conduct in and before the federal courts. Would this 
     oversight inadvertently interfere with the Supreme Court's 
     existing authority to prescribe such rules under the Rules 
     Enabling Act?

[[Page 7179]]

       These are all significant questions and the lack of clear 
     answers is a significant source of the concern expressed by 
     law enforcement over implementation of the McDade law.
       S.250. At least one bill, the ``Federal Prosecutor Ethics 
     Act,'' S.250, has been introduced to repeal the McDade law. 
     This bill is a ``cure'' that could produce a whole new set of 
     problems.
       First, this bill would grant the Attorney General broad 
     authority to issue regulations that would supersede any state 
     ethics rules to the extent ``that [it] is inconsistent with 
     Federal law or interferes with the effectuation of Federal 
     law or policy, including the investigation of violations of 
     federal law.'' I am skeptical about granting such broad 
     rulemaking authority to the Attorney General for carte 
     blanche self-regulation.
       Moreover, any regulation the Attorney General may issue 
     would generate substantial litigation over whether it is 
     actually ``authorized''. For example, is a state rule 
     requiring prosecutors to disclose exculpatory information to 
     the grand jury ``inconsistent with'' federal law, which 
     permits but does not require prosecutors to make such 
     disclosures? More generally, must there be an actual conflict 
     between the state rule and federal law or policy? Can the 
     Attorney General create conflicts through declarations and 
     clarifications of ``Federal policy''? Does a state rule 
     ``interfere with'' the ``investigation of violations of 
     Federal law'' merely by restricting what federal prosecutors 
     may say or do, or is more required?
       In addition to challenges concerning whether a Justice 
     Department regulation was actually authorized, violations of 
     the regulations would invite litigation over whether the 
     remedy is dismissal of the indictment, exclusion of evidence 
     or some other remedy.
       Second, S.250 provides nine categories of ``prohibited 
     conduct'' by Justice Department employees, violations of 
     which may be punished by penalties established by the 
     Attorney General. These prohibitions were initially proposed 
     last year as a substitute for McDade's ten commandments, 
     which were extremely problematic and, in the end, not 
     enacted. With that fight already won, there is no useful 
     purpose to be served by singling out a handful of 
     ``prohibitions'' for special treatment, and it may create 
     confusion. For example, one of the commandments prohibits 
     Department of Justice employees from ``offer[ing] or 
     provid[ing] sexual activities to any government witness or 
     potential witness in exchange for or on account of his 
     testimony.'' Does this mean that it is okay for government 
     employees to provide sex for other reasons, say, in exchange 
     for assistance on an investigation? Of course not, but that 
     is the implication by including this unnecessary language.
       Although the bill states that the nine ``commandments'' do 
     not establish any substantive rights for defendants and may 
     not be the basis for dismissing any charge or excluding 
     evidence, they would invite defense referrals to the 
     Department's Office of Professional Responsibility to punish 
     discovery or other violations, no matter how minimal. In 
     other words, these ``prohibitions'' and any regulations 
     issued thereunder could provide a forum other than the court 
     for a defendant to assert violations, particularly should 
     defense arguments fail in court. This could be vexatious and 
     harassing for federal prosecutors. The workload could also be 
     overwhelming for OPR, since these sorts of issues arise in 
     virtually every criminal case.
       Two of the nine prohibitions are particularly problematic 
     because they undermine the Tenth Circuit's recent en banc 
     decision in United States v. Singleton that the federal 
     bribery statute, 18 U.S.C Sec.  201(c), does not apply to a 
     federal prosecutor functioning within the official scope of 
     his office. The court based its decision on the proposition 
     that the word ``whoever'' in Sec. 201(c)--``Whoever . . . 
     gives, offers, or promises anything of value to any person, 
     for or because of [his] testimony'' shall be guilty of a 
     crime--does not include the government. But the bill would 
     expressly prohibit Department employees from altering 
     evidence or attempting corruptly to influence a witness's 
     testimony ``in violation of [18 U.S.C. Sec. Sec.  1503 or 
     1512]''--the obstruction of justice and witness tampering 
     statutes. These statutes use the same ``Whoever . . .'' 
     formulation as Sec. 201(c). By providing that government 
     attorneys are subject to Sec. Sec.  1503 and 1512, the bill 
     casts doubt on the Tenth Circuit's reasoning and may lead 
     other courts to conclude that Sec. 201(c) does, indeed, apply 
     to federal prosecutors, thereby reopening another can of 
     worms.
       Third, S.250 establishes a Commission composed of seven 
     judges appointed by the Chief Justice to study whether there 
     are specific federal prosecutorial duties that are 
     ``incompatible'' with state ethics rules and to report back 
     in one year. The new Commission's report is not due until 
     nine months after the Attorney General is required to issue 
     regulations. Thus, to the extent that the Commission is 
     intended to legitimize the Attorney General's regulations 
     exempting federal prosecutors from certain state ethics rules 
     (by providing the record and basis for the exemption), its 
     purpose is defeated by the timing of its report. In addition, 
     the Commission's report must be submitted only to the 
     Attorney General, who is under no obligation to adopt or even 
     consider its recommendations in formulating her regulations.
       For these reasons and others, S.250 is not the answer to 
     resolving the disputes over who sets the professional 
     standards for federal prosecutors and what those standards 
     should be.
       Professional Standards for Government Attorneys Act of 
     1999. The question of what professional standards govern 
     federal prosecutors is only a small part of the broader 
     question of what professional standards govern federal 
     practitioners. The Justice Department has complained loudly 
     about the difficulty in multi-district investigations of 
     complying with the professional standards of more than one 
     state. Yet, private practitioners must do so all the time. No 
     area of local rulemaking has been more fragmented than the 
     overlapping state, federal, and local court rules governing 
     attorney conduct in federal courts.
       The Judicial Conference of the United States has been 
     studying this problem for some time. I sent a letter last 
     month to the Chief Justice requesting information on when the 
     Judicial Conference was likely to forward its final 
     recommendations to Congress concerning rules governing 
     attorney conduct in federal court. The Chief Justice 
     responded:

       The Judicial Conference Committee on Rules of Practice and 
     Procedure has appointed an ad hoc subcommittee composed of 
     two members each from the Advisory Committees on Appellate, 
     Bankruptcy, Civil, Criminal, and Evidence Rules to make 
     specific recommendations to their respective committees. The 
     subcommittee meets on May 4, 1999, and will meet again later 
     this summer in Washington, D.C. Consideration of any proposed 
     amendments would proceed in accordance with the Rules 
     Enabling Act rulemaking process. 28 U.S.C. Sec. Sec.  2071-
     77. Under that process the subcommittee's recommendations are 
     expected to be considered by the respective advisory rules 
     committees at their fall 1999 meetings. The advisory 
     committees' recommendations will in turn be acted on by the 
     Committee on Rules of Practice and Procedure at its January 
     2000 meeting. If amendments to the Federal Rules of Practice 
     and Procedure are approved, they would likely be published 
     for public comment in August 2000.

       Any ethics legislation dealing with the particular problem 
     of federal prosecutors should be sensitive to the broader 
     issues and not foreclose reasonable solutions to these issues 
     on recommendation of the Judicial Conference.
       Furthermore, while I respect this Attorney General and the 
     government attorneys at the Department of Justice, I am not 
     alone in my unease at granting the Department authority to 
     regulate the conduct of federal prosecutors in any area the 
     Attorney General may choose or whenever prosecutors confront 
     federal court or State ethics rules with which they disagree.
       Therefore, the bill I introduce today would make clear 
     that, with respect to conduct in connection with any matter 
     in or before a federal court or grand jury, attorneys 
     employed by the federal Government are subject to the 
     professional standards established by the rules and decisions 
     of the relevant federal court. For other conduct, government 
     attorneys are subject to the professional standards 
     established by the States in which they are licensed to 
     practice. Beyond this, and consistent with the Rules Enabling 
     Act, this legislation would ask the Supreme Court to 
     prescribe a uniform national rule for government attorneys 
     relating to contacts with represented persons, taking into 
     consideration the special needs and interests of the United 
     States in investigating and prosecuting violations of Federal 
     criminal and civil law.
       How would this bill work in practice? It would, for the 
     most part, simply codify existing practices and common-sense 
     choice-of-law principles patterned on Rule 8.5(b) of the 
     American Bar Association's (ABA) Model Rules of Professional 
     Conduct. Consider as an example the three stages of a federal 
     criminal prosecution. Under this legislation, a federal 
     prosecutor who is handling an indicted case before a federal 
     district court would be subject to the standards of attorney 
     conduct established by the rules and decisions of that 
     district court. A prosecutor who is conducting or preparing a 
     federal grand jury presentation would be subject to the 
     standards of the district court under whose authority the 
     grand jury was impanelled. In other circumstances, where no 
     court has clear supervisory authority over particular 
     conduct, a prosecutor would be subject to the standards of 
     the licensing State in which he or she principally practices.
       Of course, every one of the 94 federal districts has its 
     own local rules and its own body of judicial decisions 
     interpreting those rules. Some districts have adopted their 
     state's ethics standards; some have adopted model standards 
     developed by the ABA; some have taken other approaches. As I 
     mentioned, the Judicial Conference has been studying this 
     balkanization among federal court ethics standards, and it 
     may soon recommend changes. Nothing in this bill would 
     interfere with this process; rather, the bill

[[Page 7180]]

     simply makes clear that, in most circumstances, government 
     attorneys are subject to local court rules and decisions, 
     whatever they may be.
       Nor would anything in this bill disturb the traditional 
     authority of the state courts to discipline attorneys, 
     including government attorneys, who are licensed to practice 
     in their jurisdictions. The issue here is what standards 
     apply, not who gets to enforce them.
       The bill also makes clear that the Department of Justice 
     does not have the authority it has long claimed to write its 
     own ethics rules. This authority properly belongs with the 
     federal courts, and that is where it would stay under this 
     legislation. With one exception, where there is a 
     demonstrated need for a uniform federal rule, the courts 
     would retain their current authority to prescribe rules of 
     professional conduct for the attorneys who practice before 
     them.
       It has become clear, in recent years, that effective 
     federal law enforcement is impeded by the proliferation of 
     local rules, and the resulting uncertainty, in the area of 
     contacts with represented persons and parties. Rule 4.2 of 
     the ABA's Model Rules and analogous rules adopted by state 
     courts and bar associations place strict limits on when a 
     lawyer may communicate with a person he knows to be 
     represented by another lawyer. These ``no contact'' rules 
     preserve fairness in the adversarial system and the integrity 
     of the attorney-client relationship by protecting parties, 
     potential parties and witnesses from lawyers who would 
     exploit the disparity in legal skill between attorneys and 
     lay people and damage the position of the represented person. 
     Courts have given a wide variety of interpretations to these 
     rules, however, creating uncertainty and confusion as to how 
     they apply in criminal cases and to government attorneys. For 
     example, courts have disagreed about whether these rules 
     apply to federal prosecutor contacts with represented persons 
     in non-custodial pre-indictment situations, in custodial pre-
     indictment situations, and in post-indictment situations 
     involving the same or different matters underlying the 
     charges.
       We need to ensure that government attorneys can participate 
     in traditionally accepted investigative techniques without 
     undue fear of ethical sanctions arising from perceived 
     violations of the ``no contact'' rule. Absent clear statutory 
     authority to engage in communications with represented 
     persons--when necessary and under limited circumstances 
     carefully circumscribed by law--the government will be 
     significantly hampered in its ability to detect and prosecute 
     federal offenses.
       The ``no contact'' rule has been a focus of controversy, 
     study and debate for many years. Given the advanced stage of 
     dialogue among the interested parties--the federal and state 
     courts, the ABA, the Department of Justice, and others--I am 
     confident that a satisfactory uniform federal rule governing 
     contacts with represented persons by government attorneys can 
     be developed, through the Rules Enabling Act, within the time 
     frame established by this bill. Until then, government 
     attorneys would be well advised to seek court approval before 
     engaging in contacts with represented persons, at least in 
     jurisdictions where the relevant standards are uncertain.
       The problems posed to federal law enforcement 
     investigations and prosecutions by the McDade law may be 
     real, but resolving those problems in a constructive and fair 
     manner will require thoughtfulness on all sides.

  I ask unanimous consent that my full statement, the bill, and the 
sectional summary of the bill be included in the Record.
  There being no objection, the items were ordered to be printed in the 
Record, as follows:

                                 S. 855

       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 ``Professional Standards for 
     Government Attorneys Act of 1999''.

     SEC. 2. PROFESSIONAL STANDARDS FOR ATTORNEYS FOR THE 
                   GOVERNMENT.

       (a) In General.--Section 530B of title 28, United States 
     Code, is amended to read as follows:

     ``Sec. 530B. Professional standards for attorneys for the 
       Government

       ``(a) Definitions.--In this section--
       ``(1) the term `attorney for the Government' means any 
     attorney described in section 77.2 of part 77 of title 28 of 
     the Code of Federal Regulations (as in effect on the date of 
     enactment of the Professional Standards for Government 
     Attorneys Act of 1999) and includes any independent counsel, 
     or employee of such a counsel, appointed under chapter 40;
       ``(2) the term `court' means any Federal, State, or local 
     court or other adjudicatory body, including an administrative 
     board or tribunal; and
       ``(3) the term `State' means a State of the United States, 
     the District of Columbia, and any commonwealth, territory, or 
     possession of the United States.
       ``(b) Choice of Law.--Subject to any uniform national rule 
     prescribed by the Supreme Court under chapter 131, the 
     standards of professional conduct governing an attorney for 
     the Government shall be--
       ``(1) with respect to conduct in connection with a 
     proceeding in or before a court, the standards established by 
     the rules and decisions of that court;
       ``(2) with respect to conduct in connection with a pending 
     or contemplated grand jury proceeding, the standards 
     established by the rules and decisions of the court under 
     whose authority the grand jury was impanelled;
       ``(3) with respect to all other conduct--
       ``(A) the standards established by the rules and decisions 
     of the State in which the attorney is licensed to practice; 
     or
       ``(B) if the attorney is licensed to practice in more than 
     1 State--
       ``(i) the standards established by the rules and decisions 
     of the licensing State in which the attorney principally 
     practices; or
       ``(ii) if the conduct has a predominant effect in another 
     State in which the attorney is licensed to practice, the 
     standards established by the rules and decisions of the 
     licensing State so affected.
       ``(c) Uniform National Rule.--(1) In order to encourage the 
     Supreme Court to prescribe, under chapter 131, a uniform 
     national rule governing attorneys for the Government with 
     respect to communications with represented persons and 
     parties, not later than 1 year after the date of enactment of 
     the Professional Standards for Government Attorneys Act of 
     1999, the Judicial Conference of the United States shall 
     submit to the Chief Justice of the United States a report, 
     which shall include recommendations with respect to amending 
     the Federal Rules of Civil and Criminal Procedure to provide 
     for such a uniform national rule.
       ``(2) In developing the recommendations included in the 
     report under paragraph (1), the Judicial Conference of the 
     United States shall take into consideration, as appropriate--
       ``(A) the needs and circumstances of multiforum and 
     multijurisdictional litigation;
       ``(B) the special needs and interests of the United States 
     in investigating and prosecuting violations of Federal 
     criminal and civil law; and
       ``(C) practices that are approved under Federal statutory 
     or case law or that are otherwise consistent with traditional 
     Federal law enforcement techniques.
       ``(d) Rule of Construction.--Nothing in this section may be 
     construed to abridge, enlarge, or modify the power of the 
     Supreme Court or of any court established by an Act of 
     Congress, under chapter 131 or any other provision of law, to 
     prescribe standards of professional conduct for attorneys 
     practicing in and before the Federal courts, including 
     attorneys for the Government.''.
       (b) Technical and Conforming Amendment.--The analysis for 
     chapter 31 of title 28, United States Code, is amended, in 
     the item relating to section 530B, by striking ``Ethical'' 
     and inserting ``Professional''.
                                  ____


Summary of the ``Professional Standards for Government Attorneys Act of 
                                 1999''

       The Professional Standards for Government Attorneys Act 
     would clarify the professional standards that apply to 
     Government attorneys and identify who has the authority to 
     set those standards. Consistent with the Rules Enabling Act, 
     this legislation would further ask the Supreme Court to 
     prescribe a uniform national rule for Government attorneys in 
     an area that has created enormous tension between the Justice 
     Department and virtually everyone else--contacts with 
     represented persons and parties.
       More specifically, this bill would substitute for the 
     ``McDade law''--enacted at the end of the last Congress as 
     part of the omnibus appropriations bill--a new 28 U.S.C. 
     Sec. 530B governing professional standards for Government 
     attorneys. The new section 530B consists of four subsections:
       Subsection (a) defines the term ``attorney for the 
     Government'' in the same manner as it is defined in the 
     McDade law, by reference to existing Federal regulations. It 
     also provides simple definitions for the terms ``court'' and 
     ``State''.
       Subsection (b) establishes a clear choice-of-law rule for 
     Government attorneys with respect to standards of 
     professional conduct. Modeled on Rule 8.5(b) of the ABA Model 
     Rules of Professional Conduct, this subsection simply 
     codifies existing practice: for conduct in connection with 
     any matter in or before a court or grand jury, Government 
     attorneys are subject to the professional standards 
     established by the rules and decisions of the relevant court; 
     for all other conduct, Government attorneys are subject to 
     the professional standards established by rules and decisions 
     of the States in which they are licensed to practice.
       Because this subsection addresses what standards apply, not 
     who gets to enforce them, nothing in this subsection would 
     disturb the traditional authority of the State courts to 
     discipline attorneys, including Government attorneys, who are 
     licensed to practice in their jurisdictions.
       Subsection (c) directs the Judicial Conference of the 
     United States to submit to the Supreme Court a proposed 
     uniform national rule governing the conduct of Government

[[Page 7181]]

     attorneys with respect to communications with represented 
     persons and parties. The Judicial Conference is directed to 
     take various law enforcement concerns into consideration when 
     crafting a proposed rule, and to complete its work within one 
     year.
       Subsection (d) provides that nothing in the bill would 
     interfere with the Federal courts' existing authority, under 
     the Rules Enabling Act or any other provision of law, to 
     prescribe standards of attorney conduct for Federal 
     practitioners.
                                 ______
                                 
      By Mr. JEFFORDS (for himself, Mr. Warner, and Mrs. Hutchison):
  S. 856. A bill to provide greater options for District of Columbia 
students in higher education; to the Committee on Governmental Affairs.


expanded options in higher education for district of columbia students 
                              act of 1999

 Mr. JEFFORDS. Mr. President, I am introducing today--along 
with Senators Hutchison and Warner--the ``Expanded Options in Higher 
Education for District of Columbia Students Act of 1999.'' The purpose 
of this measure is to provide citizens of the District with a greater 
range of options in pursuing postsecondary education by having the 
Federal government offer support that, in other areas of the country, 
is provided by State governments.
  Our legislation takes a three-pronged approach toward meeting this 
objective:
  First, it offers a broader array of choices available to students who 
wish to attend public institutions of higher education by picking up 
the difference in cost between in-state and out-of-state tuition for DC 
residents who attend public postsecondary institutions in Maryland and 
Virginia.
  Second, it provides additional support to the one public 
postsecondary education institution in the District, the University of 
the District of Columbia (UDC), by authorizing funds for the 
strengthening activities outlined in Part B of Title III of the Higher 
Education Act.
  Third, it offers support to those students choosing to attend private 
institutions in the District and neighboring counties by providing 
grants of up to $2,000 to help defray tuition costs.
  With respect to public postsecondary education, students exploring 
their options find they have a more limited set of choices than any 
other group of students in the country. A student in any of the 50 
states who wishes to attend a public institution of higher education 
has a number of institutions among which to choose. That student can 
base his or her decision on considerations such as the size of the 
institution and the strengths of the various programs it offers. A 
student in the District of Columbia finds that only one public 
institution is available.
  As a practical matter, the District cannot expand its boundaries, nor 
can it establish a system of public higher education that can offer the 
diversity of offerings available in the various states. Every State 
provides support for higher education from which their residents 
benefit through lower in-state tuition, while out-of-state residents 
pay a premium to attend. I believe it is appropriate for the Federal 
government to assume the role of the State, effectively pushing the 
boundaries to a point where District students are placed on an equal 
footing in terms of the public education choices available to them.
  The legislation also makes additional support available to the 
District's public institution, UDC. Although UDC is a Historically 
Black College and University (HBCU), it has been precluded from 
obtaining the support made available to other HBCUs under Part B of 
Title III of the Higher Education Act. Part B funds are designed to 
enable institutions to strengthen their programs through activities 
such as acquisition of laboratory equipment, renovation and 
construction of instructional facilities, faculty exchanges, academic 
instruction, purchase of educational materials, tutoring, counseling, 
and student activities. The funds made available to UDC under my 
legislation are to be used for activities authorized under Part B.
  Finally, the legislation recognizes that many District residents 
choose to attend one of the many private postsecondary institutions in 
the DC area. Many of these institutions have made extraordinary efforts 
to enable District residents to succeed in their pursuit of advanced 
education. A number of states have developed programs, such as the 
Virginia Tuition Assistance Grant (TAG), to assist students at private 
institutions in defraying costs. The program authorized in this bill is 
modeled after these initiatives.
  An investment in education is one of the most important investments 
we as a society and we as individuals can make. There are boundless 
opportunities in the DC area for individuals with education and 
training beyond high school. DC residents should not be left behind in 
obtaining the capacity to take advantage of these opportunities.
  There is a need at every level of the education system to improve the 
opportunities available to District students. Throughout my career in 
Congress, I have made support for education one of my top priorities, 
and I have regarded the education of DC students as being an important 
component of my efforts.
  The legislation we are introducing today complements not only those 
programs such as ``Everybody Wins!'' and the Potomac Regional Education 
Partnership (PREP) with which I have been directly involved, but also 
the many other initiatives undertaken by individuals and institutions 
who work tirelessly to nurture the potential of the children of our 
Nation's capital. Members of the business community have recently 
launched a program known as the D.C. College Access Program (DC-CAP) 
which will offer both financial support for students pursuing 
postsecondary education and assistance to high school students to 
assure they are prepared to tackle the challenges of higher learning.
  I am encouraged by the positive response which I have received in 
discussing this concept and which has greeted similar legislation put 
forward by Representative Tom Davis. I look forward to working with all 
my colleagues in advancing this proposal.
  Mr. President, I ask that a summary of my legislation appear in the 
Record.
  The material follows:

Expanded Options in Higher Education for District of Columbia Students 
                   Act of 1999--Summary of Provisions


                 public institution tuition provisions

       The Secretary of Education is authorized to make payments 
     to public institutions of higher education located in 
     Maryland and Virginia to cover the difference between in-
     state and out-of-state tuition charged to residents of the 
     District of Columbia attending those institutions. The 
     legislation does not alter in any way the admissions policies 
     or standards of those institutions.
       Students eligible to participate in the program include DC 
     residents who begin postsecondary study within 3 years of 
     high school graduation (excluding periods of service in the 
     military, Peace Corps, or national service programs) and who 
     are pursuing a recognized educational credential on at lease 
     a half-time basis.
       Individuals who have already obtained an undergraduate 
     baccalaureate degree or whose family income exceeds the level 
     at which eligibility for the Hope Scholarship tax credit is 
     set are not eligible to participate.
       The program will be administered by the Secretary of 
     Education, in consultation with the Mayor of the District of 
     Columbia. The Secretary is authorized to delegate the 
     administration of the program to another public or private 
     entity if he determines it would be more efficient to do so. 
     The Secretary will report annually to Congress regarding the 
     operation of the program.
       Funding of $20 million in fiscal year 2000 and ``such sums 
     as may be necessary'' for each of the 5 succeeding fiscal 
     years are authorized for the program.


                 University of the District of Columbia

       Funding of $20 million in fiscal year 2000 and ``such sums 
     as may be necessary'' for each of the 5 succeeding fiscal 
     years authorized to enable UDC to carry out activities 
     authorized under Part B of Title III of the Higher Education 
     Act.


                     Private Institution Provisions

       The Secretary of Education is authorized to make awards of 
     up to $2,000 per academic year on behalf of students to help 
     defray tuition costs for attendance at private postsecondary 
     education institutions.
       The student eligibility requirements are identical to those 
     provided for the public institution tuition program.
       Private postsecondary education institutions which are 
     eligible to participate in the program include non-profit 
     institutions of higher education and degree-granting 
     proprietary institutions which are located in the

[[Page 7182]]

     District of Columbia or in neighboring counties.
       The program will be administered by the Secretary of 
     Education, in consultation with the Mayor of the District of 
     Columbia. The Secretary is authorized to delegate the 
     administration of the program to another public or private 
     entity if he determines it would be more efficient to do so.
       Funding of $10 million in fiscal year 2000 and ``such sums 
     as may be necessary'' for each of the 5 succeeding fiscal 
     years are authorized for the program.

 Mr. WARNER. Mr. President, I am pleased to join as an original 
cosponsor of this important legislation offered by Senator James 
Jeffords, Chairman of the Senate Committee on Health, Education, Labor 
and Pensions. Through this proposal, we seek to significantly expand 
post-secondary educational opportunities for high school graduates 
residing in the District of Columbia through the provision of financial 
aid to compensate for non-resident tuition rates at colleges and 
universities in Maryland and the Commonwealth of Virginia.
  This legislation is comparable in many ways to the highly innovative 
bill put forth in the House of Representatives by Congressman Tom Davis 
of the 11th Congressional District of Virginia. Mr. Davis' bill, H.R. 
974, is different in scope, with national rather than regional college 
access, but our intent is the same. District of Columbia high school 
students need a broader horizon of more affordable public colleges and 
universities.
  We would assist those students who have been admitted on the basis of 
their own academic achievement, and once admitted, as an example, to 
George Mason University or James Madison University, the U.S. 
Department of Education would make funding available so that the 
student's net cost would be the same as that of an in-state resident. I 
want to stress that these students would not receive preference in 
anyway in the admissions procedure.
  I believe this is an exciting concept for the youth of the nation's 
capital, and one which has already been embraced by a number of 
important local community figures who wish to further strengthen the 
program with private donations.
  Mr. Davis' legislation is on a fast track in the House Government 
Reform Committee, and I understand that our bill will be referred to 
the Senate Committee on Government Affairs. I look forward to working 
with our Senate Chairman Fred Thompson, our D.C. Subcommittee Chairman 
George Voinovich, as well as D.C. Appropriations Chairman Kay Bailey 
Hutchison as we work our way through the legislative process.
  I believe if we can all keep our focus on the common goal of 
improving college access for D.C. students, our local youth will turn 
up winners. I commend Senator Jeffords and Congressman Davis for their 
leadership in this endeavor, and I look forward to a healthy and 
productive debate as we hammer out the final form of the 
legislation.
                                 ______
                                 
      By Ms. SNOWE (for herself, Mr. Sarbanes, Mr. Conrad, Mr. 
        Ashcroft, Mr. Hutchinson, Mr. Gregg, Mr. Wellstone, Mr. 
        Schumer, Mr. Warner, Mr. Lugar, Mr. Hagel, Mr. Crapo, Mrs. 
        Murray, Mr. Biden, Mr. Feingold, Ms. Collins, Mr. DeWine, and 
        Mr. McCain):
  S.J. Res. 21. A joint resolution to designate September 29, 1999, as 
``Veterans of Foreign Wars of the United States Day''; to the Committee 
on the Judiciary.


           veterans of foreign wars of the United States day

  Ms. SNOWE. Mr. President, I rise today to introduce a joint 
resolution honoring the Veterans of Foreign Wars (VFW) of the United 
States.
  This resolution designates September 29, 1999, as Veterans of Foreign 
Wars of the United States Day, and urges the President to issue a 
proclamation in observance of this important day. September 29, 1999 
marks the centennial of the VFW. As veterans of the Spanish American 
War and the Philippine Insurrection of 1899 and the China Relief 
Expedition of 1900 returned home, they drew together in order to 
preserve the ties of comradeship forged in service to their country, 
forming what we know today as the VFW.
  Mr. President, when many of us think about war veterans, we think 
about the tremendous sacrifices these defenders of freedom made to 
safeguard the democracy we cherish, especially those who made the 
ultimate sacrifice. My resolution recognizes those contributions and 
sacrifices. It also recognizes the contributions that VFW members 
continue to make day-in and day-out in our communities--the youth 
activities and scholarships programs, the Special Olympics, homeless 
assistance initiatives, efforts to reach out to fellow veterans in 
need, national leadership on issues of importance to veterans and all 
Americans, and others too numerous to mention. Over the last 100 years, 
members of the VFW have contributed greatly to our nation both in and 
out of uniform in many ways.
  I have nothing but the utmost respect for those who have served their 
country. This is an opportunity to honor the men and women and their 
families who have served this country with courage, honor and 
distinction. They answered the call to duty when their country needed 
them, and this is a small token of our appreciation.
  The centennial of the founding of the VFW presents all Americans with 
an opportunity to honor and pay tribute to the more than two million 
active members of the VFW and to all veterans, as well as to the ideals 
for which many made the ultimate sacrifice. I urge my colleagues to 
join me in a strong show of support and an expression of appreciation 
for the VFW and all veterans.
  Mr. President, I yield the floor.
  Mr. BIDEN. Mr. President, I am proud to join today with my colleague, 
the Senator from Maine, Mrs. Snowe, in introducing a resolution 
honoring the Veterans of Foreign Wars (VFW) of the United States and 
commemorating the 100th Anniversary of the founding of the VFW, by 
declaring September 29, 1999 as Veterans of Foreign Wars of the United 
States Day.
  Since its inception after the Spanish-American War in 1899, the VFW 
has dedicated itself and its members to improving twentieth century 
America. The value of the contributions that members of the VFW and its 
Ladies Auxiliary have made to their communities and to this nation 
cannot be overstated. After returning home from foreign service during 
times of war and armed conflict, these men and women have continued to 
give of themselves to ensure that this nation protects and maintains 
the democratic ideals upon which it was founded, and that the veterans 
and their dependents are cared for. From providing services for 
veterans and their families, to sponsoring community action and charity 
projects, the VFW strengthens not only its members, but each and every 
American as well.
  On a personal note, I have had the unique pleasure of sharing the 
floor of the United States Senate with several decorated veterans, as 
well as enjoying the privilege of having several veterans of American 
conflicts on my own staff. I've also enjoyed the ongoing opportunity of 
meeting and working with the very patriotic citizens of Delaware whom 
this resolution honors. Throughout my entire tenure in the United 
States Senate, the members of Delaware's VFW have been, for me, a 
continued source of knowledge, insight, and inspiration.
  Particularly with the members of our armed forces currently serving 
in the Balkans in mind, whom I just visited, I offer my humble 
recognition to all of those who have so bravely and selflessly served 
America in the past. I sincerely trust that my colleagues will join me 
in acknowledging the courage, the sacrifice, and, frequently, the sheer 
bravery of our members of the Veterans of Foreign Wars, whose 
contributions to this country will be reaped for generations to come. I 
want to both demonstrate and convey to them my profound gratitude.

                          ____________________