[Congressional Record (Bound Edition), Volume 149 (2003), Part 19]
[Senate]
[Pages 26904-26934]
[From the U.S. Government Publishing Office, www.gpo.gov]




  NATIONAL CONSUMER CREDIT REPORTING SYSTEM IMPROVEMENT ACT OF 2003--
                               Continued

  The PRESIDING OFFICER. The Senator from Nevada.
  Mr. REID. Mr. President, under the order, the Senator from California 
has the floor. If I may propound a unanimous consent request, the 
Senator from California is going to speak for approximately another 
half hour or thereabouts. Following that, Senator Durbin and Senator 
McCain wish to speak on matters unrelated to the matter now before the 
Senate. To save a lot of confusion, I ask unanimous consent that 
following the remarks of the Senator from California, Senator Nelson of 
Florida be recognized for up to 3 minutes; following that, the Senator 
from Illinois, Mr. Durbin, be recognized for up to 15 minutes; 
following that, the Senator from Arizona, Mr. McCain, be recognized for 
up to 20 minutes.
  The PRESIDING OFFICER. Is there objection? Without objection, it is 
so ordered.
  Mr. McCAIN. Mr. President, we usually go back and forth, I tell my 
friend.
  Mr. REID. The Senator from Arizona wishes to go before Senator 
Durbin?
  Mr. McCAIN. Yes.
  Mr. REID. That is fine. I thought it was the reverse order. I ask 
that the unanimous consent request be modified so that Senator McCain 
be recognized prior to Senator Durbin.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mrs. FEINSTEIN. Reserving the right to object.
  The PRESIDING OFFICER. The Senator from California is to be 
recognized.

[[Page 26905]]


  Mrs. FEINSTEIN. Mr. President, the Senator from Florida has asked if 
I would yield for just a short time before I begin. Is that agreeable?
  Mr. REID. That is in the unanimous consent order. It is up to the 
leadership. However, after Senator Feinstein completes her statement 
and Senator Nelson completes his statement, I rather doubt they could 
do that, but somebody could move for a vote prior to that time. I don't 
suggest anyone doing so. It could happen.
  The PRESIDING OFFICER. The Senator from California.
  Mrs. FEINSTEIN. I thank the Chair.
  Mr. President, is it possible for me to yield for 3 minutes to the 
Senator from Florida?
  The PRESIDING OFFICER. Without objection, it is so ordered.


                           Amendment No. 2054

  Mr. NELSON of Florida. Mr. President, I rise to support the amendment 
of the Senator from California and to point out that I think the 
committee has done a very good job on the underlying bill. They address 
the question of medical privacy in the bill where a big holding company 
might have a subsidiary company, such as an insurance company, and an 
individual, when they get a life insurance policy, will have to get a 
doctor's examination, so that in the bosom of that health insurance 
company would be medical records. That health insurance company may be 
owned by a bank.
  What the underlying bill does is protect against someone having their 
personally identifiable medical information shared throughout that 
holding company and shared with those who would want to market that 
personally identifiable medical information.
  However, the underlying bill does not protect on the personally 
identifiable financial information, so that one part of a holding 
company could have personally identifiable financial information such 
as how much you take out of your ATM, what kind of purchases you make 
on your credit card, what time of day or what time of the week you go 
and make deposits in your ATM or take out from your ATM. Those things 
that are personally identifiable ought to be private unless the 
individual consumer says they are willing to have that information 
shared among the holding companies.
  That is one of the things the amendment of the Senator from 
California addresses which, if we are going to take privacy seriously, 
we need to address. That is why I support the amendment of the Senator 
from California.
  I yield the floor.
  Mrs. FEINSTEIN. I thank the Senator from Florida and I thank the 
Chair for allowing this opportunity for the Senator to make a 
statement. I think he is referring to an amendment that I will 
introduce at a later time having to do with clearing up the health 
definition in the bill.
  The health definition in the bill is archaic. The vast majority of 
states have adopted more fully inclusive definitions, and we would like 
to have that definition in the bill.
  Prior to the break for lunch, I was beginning to explain why the bill 
before us has a weak privacy standard on affiliate sharing. 
Specifically, the underlying bill permits financial institutions to 
share a customer's transaction and experience information with 
affiliates with few, if any, restrictions. As I stated, transaction and 
experience information could include extremely sensitive information 
about individuals such as their bank account balance and data mined 
from their check or credit accounts or where they buy goods.
  If consumers cannot preserve the privacy of their bank balances or 
the places they go to make purchases, they do not have meaningful 
privacy protections. That is the weak privacy standard that will become 
the national norm if this bill passes the way in which it is 
envisioned.
  Supporters of the existing weak standard argue that America's credit 
environment has thrived since 1996. So they say, why mess with a system 
that is working? I challenge that assertion.
  First, because transaction and experience information remains 
undefined. As I pointed out before lunch, we asked the CRS to look at 
current law. We asked them how they would define ``transaction and 
experience'' information. They said it has never been defined. So it is 
questionable whether any privacy regime at all exists for the bulk of 
affiliate-sharing practices.
  Secondly, identity theft has emerged as a national epidemic in the 
last 7 years. Both the chairman and the ranking member of this 
committee have done their utmost and been very receptive to trying to 
enact legislation to prevent identity theft.
  The Federal Trade Commission recently published a study that 
suggested 9.9 million Americans are victims of identity theft every 
year. The cost is $50 billion annually. Studies have shown that much 
identity theft occurs in the workplace. So increased affiliate sharing 
will likely facilitate this crime. Potentially, thousands of employees 
in affiliated businesses will have increased access to the currency of 
identity theft, and that is Social Security numbers and other sensitive 
identifying information, such as date and place of birth and mother's 
maiden name.
  In her testimony before the Senate Banking Committee, Vermont 
Assistant Attorney General Julie Brill directly linked affiliate 
sharing to identity theft. Here is what she said:

       Many identity fraud cases stem from the perpetrator's 
     purchase of consumers' personal information from commercial 
     data brokers. Financial institutions' information sharing 
     practices contribute to the risk of identity theft by greatly 
     expanding the opportunity for thieves to obtain access to 
     sensitive personal information.

  So that is what we are doing here. Now, this is a prosecutor who 
should know. This is what she deals with. So why broaden the scope and 
opportunity for identity theft to take place?
  Assistant Attorney General Brill also cited work by researchers at 
Michigan State University who studied 1,000 cases of identity theft and 
found that 50 percent of the victims traced the theft of information to 
an employee of a company compiling personal data on individuals.
  Third, it is an open question whether affiliate sharing has offered 
any price or service advantage to customers. According to an article by 
Janet Gertz in the San Diego Law Journal, there is some evidence that 
businesses use affiliate sharing to extract concessions from consumers. 
Let me quote her:

       By profiling consumers, financial institutions can predict 
     an individual's demand and price point sensitivity and thus 
     can alter the balance of power in their price and value 
     negotiations with that individual. Statistics indicate that 
     the power shift facilitated by predictive profiling has 
     proven highly profitable for the financial services industry. 
     However, there is little evidence that any of these profits 
     or cost savings are being passed on to consumers.

  Just recently, for example, the Federal Reserve issued a report on 
financial service fees and services showing that fees at larger 
institutions are generally increasing and services are decreasing.
  So we are letting exist this whole area where businesses buy other 
businesses just to share consumers' data? And the consumer has no 
control over their personal data. That is wrong.
  My colleagues may hear during the debate on this amendment that the 
affiliate sharing problem is addressed because S. 1753 allows consumers 
to opt out of certain marketing solicitations by affiliates.
  I want to go into this because this has been widely circulated by the 
financial institutions. Senator Boxer and I were just questioned about 
it at a press conference we held. In truth, these restrictions that 
they say are there are grossly inadequate, and they barely scratch the 
surface of the problem.
  Let me describe some of the uses of affiliate sharing that the bill 
does permit. First, internal credit reports: The bill permits companies 
to use transaction and experience information to create internal credit 
reports.
  Martin Wong, general counsel of Citigroup's Global Consumer Group, 
testified before the Senate Banking Committee in June that:

       Citigroup is able to use the credit information and 
     transaction histories that we collect from affiliates to 
     create internal credit scores and models that help determine 
     a customer's eligibility for credit.


[[Page 26906]]


  In other words, a bank can use transaction and experience from its 
affiliates to determine if it is going to charge a higher interest rate 
to certain credit card customers and give perks to others or to deny a 
credit applicant a credit card.
  In contrast to a traditional credit card report, a consumer has no 
right of access to transaction and experience information used by a 
bank to deny him or her credit. Nor would a consumer have any right to 
correct any errors made in compilation of these internal credit 
reports. So one can have their credit changed even without their 
knowledge. It can be wrong, and the person would not know about it. It 
all happens in this secret world of affiliate sharing.
  Similarly, a health insurer could deny a customer a health insurance 
or life insurance policy based on transaction and experience 
information. For example, a life insurer might reject an insurance 
applicant because of evidence in his card or check transaction record 
that he visits liquor stores frequently, buys products at stores 
selling mountain climbing equipment and therefore is at risk of injury, 
or has purchased a gun.
  These are just indications. These are just areas. But you can see 
where this thing is going. Essentially, consumers can be denied 
products or services and they will have no ability to determine why the 
denial occurred.
  The bill would permit prospective or current employers, without an 
individual's knowledge or consent, to mine information about the 
individual from other affiliates with whom the individual does 
business. This could be used for hiring decisions, disciplinary action, 
job evaluations, or other employment purposes. Again, all of this goes 
on simply because you bank with a given bank. You think all these 
things are protected and in fact they are data-mining checks, where you 
go, who you are paying. This information is going out to a whole host 
of other companies, sometimes thousands of companies.
  Some affiliates are offshore and American consumer protection laws do 
not apply to those countries. As United States companies continue to 
acquire affiliates overseas, consumers may not even be able to depend 
on existing consumer protection laws to protect information that is 
shared with an affiliate.
  Earlier this month, and many of us read about it, a woman in 
Pakistan, transcribing medical files for the University of California 
Medical Center in San Francisco, threatened to post patient medical 
records on the Internet unless she was paid more money. While we have 
strict laws governing medical files in the United States, these laws 
are virtually unenforceable overseas.
  The Senate bill does not prevent affiliated companies from 
accumulating and sharing uncomplimentary information about customers, 
such as if they have filed for bankruptcy, do not pay their credit on 
time, or complain a lot. This information can be used to push 
unprofitable customers into a different tier of customer services. 
Example, where there are longer waits for a customer representative, or 
eliminate the customer altogether. All of this happens because of the 
ease with which this information can be shared among commonly held 
companies.
  Let me give an example. Business Week magazine has reported that 
Sanwa Bank gives A's to its best customers, but those whose profiles 
show they will generate less revenues get C's from the bank. The bank 
tends to charge those earning C's more fees, and is more likely to put 
them on hold when they call in for service. This type of profiling 
certainly can occur in the context of affiliate sharing.
  Even in the area of marketing, this bill is grossly inadequate. It 
purports to give consumers the right to opt out of the sharing of 
transaction and experience information for marketing, but there are 
loopholes. The institutions are going around the Hill today, pointing 
out they already do protect this.
  Let me talk for a minute about the loopholes. The bill excludes 
companies from the opt-out if they have a preexisting business 
relationship with the consumer.
  What is a preexisting business relationship? Your guess is as good as 
mine because the bill doesn't define it. Presumably, a bank could argue 
it has a preexisting relationship with a consumer if a consumer came 
into the bank 5 years ago to cash a check, or even just made an inquiry 
about an account. Additionally, if a consumer does exercise the opt-out 
for marketing, which is in the bill, the opt-out expires after 5 years. 
At that time, affiliates can then start marketing again to the 
customer.
  I find it disturbing that the supporters of the bill want to 
permanently preempt States from enacting stronger affiliate-sharing 
laws for credit reporting purposes, but only think customers' 
preferences should be recognized for 5 years.
  Last, but perhaps most fundamental, the Senate bill denies the 
consumer the ability to define the parameters of his or her 
relationship with a company, and this, I think, is really important. 
Under the current bill, when a consumer purchases a product from a 
megacorporation, the consumer automatically, without his or her choice 
or consent, makes his or her information available to hundreds of 
companies. Lawyers call this type of relationship, where one side has 
all the bargaining power, an adhesion contract. Some courts rule these 
types of contracts invalid because they do not reflect arm's-length 
negotiation and could result in unconscionable terms for the consumer.
  Our amendment is a substitute to the affiliate-sharing language in S. 
1753. Supporters of the underlying bill claim the Government needs a 
viable national standard to ensure the efficiency of our credit market. 
This amendment provides such a standard. It gives consumers all across 
the country--in Alabama, in Maryland, in Kentucky, in Colorado, in 
Washington--the opportunity to have some say, some choice in how their 
personal data is shared. With the privacy of Americans more at risk 
because of the latest technological developments and identity theft, 
with privacy invasions at its core becoming the fastest growing white-
collar crime in the United States, we believe strong national standards 
are critical.
  Our amendment reflects the terms of the California privacy law, which 
the California Bankers Association just a very short time ago called 
reasonable and workable, and are now lobbying against.
  I read the letter of the author of the California bill, which I think 
irrefutably states the turnaround the financial institutions have done 
in this opt-out provision. Jim Bruner of the Securities Industry 
Association stated at the press conference announcing the agreement on 
California law on August 14, just a short time ago:

       ``While we would have preferred a national standard,'' [the 
     California law] ``encompasses all aspects of the workability 
     needed to ensure protection of consumers' privacy.''

  And then they turned around and did a 180.
  Jamie Clark of the California Bankers Association said at the same 
press conference that the banks:
       ``. . . have no objection to the measure passing'' and 
     would tell its supporters to vote for the bill.

  Clark added:

       ``We prefer a national standard so that you have a uniform 
     operating environment.''

  But they didn't tell anyone in California, which has just passed a 
new law which provides opt-out, that they could not live with the opt-
out standard.
  They did not come back here saying the law was sloppily drafted. They 
liked it then. When you do the law back here, all of a sudden it is 
sloppily drafted.
  Diane Colborn of the Personal Insurance Federation called the 
California bill ``a balanced measure that will provide meaningful 
privacy protections to consumers while also addressing the workability 
concerns that our members and customers had.''
  The California credit unions supported this legislation and still do. 
I thank them for their support.
  This amendment offers businesses in California and around the country 
the chance to get a moderate, reasonable, uniform national standard on 
personal privacy.

[[Page 26907]]

  Under the amendment, companies would be required to give consumers 
notice of their intent to share transactions and experience and other 
information with their affiliates. Consumers would then have the 
opportunity to opt out--to say, I don't want you to do it, or to do 
nothing at which point the information could be shared. The company 
would be notified and would give them, I hope, a choice of whether 
their most personal information is shared among affiliates.
  This amendment would also allow closely related affiliates in the 
same line of business to share information with each other. 
Specifically, companies would not need to provide an opt-out choice if 
one, the affiliate is regulated by the same functional regulator--an 
example of that is institutions that regulate financial service 
institutions such as the Office of Thrift Supervision and the Office of 
the Comptroller of the Currency would be considered the same functional 
regulator; two, the affiliate engages in the same line of business. An 
example of that is the selling of securities, banking services, and 
insurance would all be considered independent lines of business; three, 
the affiliate shares a common brand identification; and four, the 
affiliate is a wholly owned subsidiary of the same company.
  The amendment also has numerous other exceptions that were ironed out 
after 4 years of negotiation in California to meet the practical needs 
of business. The exceptions include the following: No. 1, information 
maintained in common databases. This is another false rumor that is 
being spread on this bill. This amendment allows employees of an 
affiliate to have access to information maintained in a common 
information system or database so long as the information is not 
accessed, disclosed, or used.
  That is the key. It doesn't require new databases. It doesn't mess up 
their database. It just says you can't access it if the individual opts 
out.
  This exception is necessary because we don't want to disadvantage 
companies that have streamlined operations by combining databases and 
other information technology resources. On the other hand, this 
amendment still permits consumers to have a choice over whether 
information in the database can be used for secondary purposes.
  This amendment, as the Gramm-Leach-Bliley and California law, has an 
exception for transactional uses of information.
  Information sharing ``necessary to affect, administer or enforce a 
transaction requested or authored by the consumer'' or ``with the 
consent or at the direction of the consumer'' is excluded from the opt-
out.
  Our amendment has exceptions for affiliate sharing of personal 
information that is necessary for companies to effectively manage their 
operations. For example, for security purposes, institutional risk 
control, and to respond to customer disputes or inquiries.
  Proponents for unrestricted sharing of affiliate information argue 
that it is needed to solve identity theft. They correctly point out 
that companies can track unlawful purchases or suspicious activity by 
monitoring unusual account activity, change of address requests, and 
other suspicious behavior.
  This amendment explicitly allows for affiliates to share information 
``to protect against or prevent actual or potential fraud, identify 
theft,'' et cetera.
  In addition, the amendment has exceptions relating to a business, a 
merger, a sale, a transfer; to comply with Federal, State, or local 
laws; for outsourcing functions with vendors such as data processing or 
billing; and, to identify or locate missing and abducted children, 
witnesses, criminals and fugitives, parties to lawsuits, parents 
delinquent in child support payments, organ and bone marrow donors, 
pension fund beneficiaries, and missing heirs, or to report known or 
suspected instance of elder or dependent adult financial abuses; and an 
exception is also carved out for the United States of America PATRIOT 
Act.
  I deeply believe that without this opt-out the National Consumer 
Credit Reporting System Improvement Act would create a permanent and 
unworkable Federal standard that would set back the privacy of personal 
information and allow sensitive personal data to be moved through 
dozens, hundreds, and, in some cases, thousands of other companies.
  This amendment is quite simple. It is about consumer choice.
  I am puzzled at the ferocity with which the financial institutions 
and the banks are lobbying against this amendment. They serve people. 
That is what they are there to do--serve people. Shouldn't someone know 
if this information is being marketed within the loophole? Shouldn't 
someone have the opportunity to say, I don't want you to use my 
information? In fact, I think I am going to change banks, if they do 
this. Find a bank that won't do it. That would be my advice to 
everybody.
  I think consumers should be given the opportunity to tell a bank they 
don't want their information shared with other companies. This is 
America. We should have that freedom. We should have that right. If you 
vote for this amendment, Americans will.
  Do I have a few more minutes? If I could quickly set aside this 
amendment and send one other amendment to the desk, I will not speak to 
it.
  I am happy to wait. I will yield the floor at this time and do it 
later.
  Thank you very much.
  Mr. McCAIN. Mr. President, I don't mind waiting a few minutes if the 
Senator from California wishes to proceed.
  Mrs. FEINSTEIN. No. That is all right.
  The PRESIDING OFFICER. Under the previous order, the Senator from 
Arizona has the floor. The Senator from Arizona.


                        U.S.-Russia Relationship

  Mr. McCAIN. Mr. President, a creeping coup against the forces of 
democracy and market capitalism in Russia is threatening the foundation 
of the U.S.-Russia relationship and raising the specter of a new era of 
cold peace between Washington and Moscow. The new authoritarianism in 
Russia is more than a test of America's ability to defend universal 
values that have taken shallow root since the Soviet empire collapsed. 
It presents a fundamental challenge to American interests across 
Eurasia. The United States cannot enjoy a normal relationship, much 
less a partnership, with a country that increasingly appears to have 
more in common with its Soviet and czarist predecessors than with the 
modern state Vladimir Putin claims to aspire to build.
  On October 25, masked Russian security agents from the FSB, the 
successor to the KGB, stormed Russian businessman Mikhail 
Khodorkovsky's private plane during a stop in Siberia. He now sits in 
prison awaiting trial, accused of tax evasion, fraud, forgery, and 
embezzlement. Russia's richest man, founder and chief executive of its 
most successful private company, a leader in incorporating Western 
principles of accounting and transparency into business practice, and a 
generous donor to charity, Khodorkovsky had committed what in the 
Kremlin's eyes is the worst crime of all: supporting the political 
opposition to President Putin. Such an alternative center of power 
could threaten the Kremlin's supreme political control.
  Upon assuming power in 2000, President Putin announced a now-famous 
ultimatum to Russia's top business leaders, whose fortunes were made by 
acquiring control of Russian assets privatized at fire-sale prices in 
the 1990s. President Putin said to them: stay out of political life and 
keep your fortune, or risk it by engaging in political activity. Most 
of the oligarchs chose to remain quiet. Three did not. Business tycoons 
Boris Berezovsky and Vladimir Gusinsky were forced into exile as a 
result of their support for opposition political parties and free 
media. Mikhail Khodorkovsky actually attempted to exercise basic 
political freedoms guaranteed, in theory, for all Russians. He has been 
thrown into jail as a result.
  Admittedly, Messrs. Gusinsky, Berezovsky, and Khodorkovsky may not 
provide to proponents of democracy and free markets in Russia the most 
laudable personal histories upon which to wage a resolute defense of 
our democratic principles. But failure to

[[Page 26908]]

defend them would acknowledge exactly what the Kremlin cynically 
alleges: that they are being prosecuted because of the way they made 
their money. What has caused these three Russian tycoons to be singled 
out are their activities in support of opposition political parties and 
free media. In reality, a concerted campaign to clean up Russian 
politics and society would reach into every corner of the Kremlin and 
every boardroom in Russia, but that is not happening. For better or for 
worse, there is a consensus in Russian society that the past should 
remain in the past as Russia moves forward. If Russian business and 
government leaders are in fact going to be prosecuted for their conduct 
a decade ago, then perhaps the former KGB officer named Vladimir Putin 
who assisted Stasi leaders and Eric Honnecker in oppressing the German 
people should answer for his crimes.
  Mikhail Khodorkovsky's arrest, like the politically motivated 
indictments of Berezovsky and Gusinsky, should be seen not as 
prosecution for financial dealings done a decade ago--which would 
implicate thousands of Russian businessmen and political figures--but 
as part of a larger contest between the forces of statist control and a 
liberal-oligarchic elite. Who wins will go a long way toward 
determining whether Russia reverts to the traditions of its czarist-
imperial past or charts a new course as part of an integrating, liberal 
international order. The consequences of this struggle, for both the 
Russian people and the world, will be profound.
  For the Russian people, President Putin's rule has been characterized 
by the dismantling of Russia's independent media, a fierce crackdown on 
the political opposition, and the prosecution of a bloody war against 
Chechnya's civilian population. The ascent of former KGB officers 
throughout Russia's ministries and in the Kremlin has enabled Putin to 
use the long arm of the state to crush internal dissent, silence 
opposing political voices, and subdue free media. During the first 
Chechen war, more Russians got their news from Vladimir Gusinsky's 
independent NTV than from state media. Today, there is almost no free 
media in Russia. Intimidation, coercion, assassination of journalists, 
and armed raids by the security services have put most independent 
media outlets out of business. Beatings and assassinations of 
journalists recall not the new Russia but the dark legacy of the Soviet 
past. Those independent media outlets that remain feel forced to 
practice the kind of self-censorship that characterized the Soviet 
Union. Today, most Russians who read newspapers or tune into television 
or radio hear only the voice of the Russian state--as they did under 
totalitarian rule.
  In a land where financial support for opposition political parties 
comes largely from business, the arrest of Mikhail Khodorkovsky, like 
the indictments of Berezovsky and Gusinsky, sends a chillingly clear 
message to Russia's business community that their assets are safe only 
if they steer clear of politics. Putin himself made this same threat to 
the oligarchs in 2000; it is clear that his government is carrying it 
out, and that Khodorkovsky is the latest victim.
  Political assassinations also demonstrate the risk of speaking out 
against state power. Earlier this year, State Duma deputy Sergei 
Yushenkov, who had been investigating potential connections between the 
1999 Moscow apartment bombings and the start of the second Chechen war, 
was killed outside his Moscow apartment. State Duma deputy Yuri 
Shendoshokhtin, who had been looking into the role of the FSB in the 
Moscow bombings as well as a scandal surrounding the involvement of FSB 
officers in illegal trade, was also killed in mysterious circumstances. 
Both crimes remain unsolved. In today's Russia--as in Soviet Russia, as 
in czarist Russia--the state uses its power to suppress political 
dissent. The arrest of Mikhail Khodorkovsky fits in a long tradition of 
political arrest and persecution stretching across the vast dictatorial 
tundra of Russian history.
  Under President Putin, Russian citizens in Chechnya have suffered 
crimes against humanity at the hands of Russian military forces. It was 
during Mr. Putin's tenure as Prime Minister in 1999 that he launched 
the Second Chechen War following the Moscow apartment bombings. There 
remain credible allegations that Russia's FSB had a hand in carrying 
out these attacks. Mr. Putin ascended to the presidency in 2000 by 
pointing a finger at the Chechens for committing these crimes, 
launching a new military campaign in Chechnya, and riding a frenzy of 
public anger into office. Since then, between 10 and 20,000 Chechen 
civilians have been killed and hundreds of thousands displaced by 
Russian security forces. At Putin's direction, the Kremlin recently 
stage-managed an ``election'' in Chechnya that put Moscow's hand-picked 
candidate in power. The principal voters were Russian conscripts forced 
to serve in Chechnya. Moscow has made no effort to address the 
political grievances of a population increasingly radicalized by the 
brutality of Russian rule. Yes, there are Chechen terrorists, but there 
are many Chechens who took up arms only after the atrocities committed 
by Russian forces serving first under Boris Yeltsin's and then Putin's 
orders.
  In short, Mr. President, I am worried that what we are seeing in Mr. 
Putin's government is a continuation of 400 years of autocratic state 
control, and repression. Since the end of the Cold War, many Western 
observers have optimistically argued that the way Russia is governed 
has fundamentally changed. Sadly, this appears not to be true. Whether 
ruled by the czars, Stalin, Brezhnev, or Putin, the Russian state has 
remained supreme within Russian society. It seeks fundamentally to 
control society, not to answer to it. The people serve the government, 
not the reverse. This is not the behavior of a modern European nation; 
it is a form of unenlightened despotism cloaked in the mantle of 
international respectability, which Russia derives principally from its 
relations with other great powers--particularly the United States.
  The ascent of former KGB officers to positions of power throughout 
the structures of the Russian state underscores this trend. Apparently 
KGB veterans Igor Sechin and General Viktor Ivanov, both deputy chiefs 
of presidential administration in the Kremlin, masterminded the assault 
on Mr. Khodorkovsky. I would like to congratulate the KGB for arresting 
one of the most pro-Western business figures in Russia today--someone 
whose personal and corporate behavior, through charitable giving and 
adopting Western standards of business, have brought more credit to 
Russia in the last three years than anything the Russian government has 
done. Meanwhile, the FSB has been unable to solve the murder of leading 
independent journalists. It has failed to bring to justice any suspects 
in the murder of democratic politicians. It has not been able to 
identify a single case of corruption inside the Russian government. Not 
a single Russian has been held to account for committing crimes against 
humanity in the Soviet Gulag. The FSB can't do any of that--but it can 
arrest Mikhail Khodorkovsky. What brave men they must be to kick down 
the doors of a private airplane and arrest an unarmed man.
  The FSB's dominance in the Russian Government has renewed the specter 
of the imperial temptation that has guided Russia's external relations 
for centuries. For too many of Russia's neighbors, it is like the old 
Beatles song: ``Back in the USSR.'' Under President Putin, Russia has 
refused to comply with the terms of the Treaty on Conventional Forces 
in Europe. Russian troops occupy parts of Georgia and Moldova. Russia 
has effectively annexed the Georgian province of Abkhazia, which it has 
occupied for a decade. Moscow has supported attempts to overthrow 
neighboring governments that appear too independent of Russia's 
embrace. Russian naval forces recently attempted to assert control in 
the channel connecting the Sea of Azov and the Black Sea from Ukraine. 
Russian secret services are credibly accused of meddling in elections 
in Azerbaijan and Georgia. Russian agents are working to bring

[[Page 26909]]

Ukraine further into Moscow's orbit. Russian support sustains Europe's 
last dictatorship in Belarus. And Moscow has attempted to cynically 
manipulate Latvia's Russian minority and enforced its stranglehold on 
energy supplies into Latvia in order to squeeze the democratic, pro-
American government in Riga.
  Under President Putin, Russia has pursued a policy in its ``near 
abroad'' that would create an empire of influence and submission, if 
not outright control. On October 9, Russian Defense Minister Sergei 
Ivanov declared that Russia reserves the right to intervene militarily 
within the Commonwealth of Independent States in order to settle 
disputes that cannot be resolved through negotiation. At the same press 
conference, President Putin declared that the pipelines in Central Asia 
and the Caucasus carrying oil and natural gas to the West were built by 
the Soviet Union, and said it is Russia's prerogative to maintain them 
in order to protect its national interests, ``even those parts of the 
system that are beyond Russia's borders.'' In the runup to the war in 
Afghanistan, President Putin was given great credit for ``allowing'' 
the United States to use the military facilities and airspace of 
sovereign countries in Central Asia. But Russia has no more right to 
speak for these countries than we do. The Putin Doctrine, asserting a 
right to imperial intervention in Russia's ``near-abroad,'' coupled 
with the ascendancy of the FSB, recalls a discredited Russian imperial 
past whose victims number in the millions. Russia's assertion of 
political control over its neighbors speaks not to a modern vision of 
Russian reform and renewal, but appears to reflect a czarist impulse to 
dominate neighboring populations. It is the international dimension of 
rising state control at home.
  The dramatic deterioration of democracy in Russia calls into question 
the fundamental premises of our Russia policy since 1991. American 
leaders must adapt U.S. policy to the realities of a Russian Government 
that may be trending towards neo-imperialism abroad and authoritarian 
control at home. It is time to face unpleasant facts about Russia. 
Russia is moving in the wrong direction--rapidly. While the United 
States undertakes a necessary and comprehensive review of our policy, I 
believe Russia's privileged access to critical Euro-Atlantic 
institutions should be suspended. This access was obtained with the 
understanding that President Putin was committed to free markets, the 
rule of law, pluralist democracy, journalistic freedom, and the lawful 
constraint of the intelligence and security services. These now appear 
to be false premises.
  The Russian Government is not behaving in a manner that qualifies it 
to belong in the club of industrialized democracies. The United States 
is hosting the next G-8 Summit at King Island, Georgia, in June 2004. 
Russia has been invited to participate and has been working its way in, 
but President Putin's conduct at home and abroad has worked Russia out. 
Putin's Russia should have no place at the next G-8 Summit.
  Congress should not consider the repeal of the Jackson-Vanik 
amendment for Russia. It would be incomprehensible to consider easing a 
law created in response to Soviet repression when the Russian 
Government is continuing a similar pattern of behavior. I will oppose 
any effort to repeal Jackson-Vanik as long as Russia is moving in the 
wrong direction.
  To any American businesses contemplating investment in or trade with 
Russia, I would simply say that this is not a place where the rule of 
law and Western codes of conduct prevail. You invest at your peril. 
Many Members of Congress have heard from U.S. businessmen who have lost 
money in Russia due to the absence of the rule of law. The American 
business community should consider itself warned: the Kremlin's recent 
behavior is a clear signal that your investments are not safe. I call 
on my own Government, including the Export-Import Bank and the Overseas 
Private Investment Corporation, to cease all guarantees of investment 
in Russia due to the unacceptable risk of state interference and 
expropriation, as demonstrated by the Russian Government's actions. 
American taxpayer dollars should not be used to subsidize U.S. 
investment in Russia as long as the rule of the FSB prevails over the 
rule of law.
  Clearly, in personal meetings, the President of Russia attempts to 
reassure the President of the United States that he is a fellow 
democrat. An accumulation of evidence forces me to draw the opposite 
conclusion. I hope I am wrong, but I am increasingly concerned that in 
Mr. Putin's soul is the continuity of 400 years of Russian oppression. 
Under President Putin's leadership, Russia looks to the West for 
prosperity, technology, and modernity, but seems to be striving in 
every way to keep the values of the West out of Russia. Far from having 
a vision for Russia in which democracy and freedom and the rule of law 
thrive, I fear President Putin may have a vision for Russia in which 
the capricious power of the police at home, and the menacing weight of 
subversion and intimidation abroad, guide the state. Administration 
policy must recognize the cold realities of Putin's Russia.
  The responsibilities that follow from this are clear: it is time for 
a hardheaded and dispassionate reconsideration of American policy in 
response to the resurgence of authoritarian forces in Moscow. It is 
time to send a signal to President Putin's government that undemocratic 
behavior will exclude Russia from the company of Western democracies. 
The wholesale suppression of free media and political opposition cannot 
be ignored. American policy must reflect the sobering conclusion that a 
Russian Government which does not share our most basic values cannot be 
a friend or partner and risks defining itself, through its own 
behavior, as an adversary.
  Mr. President, I thank the forbearance of my colleagues. I yield back 
the remainder of my time and yield the floor.
  The PRESIDING OFFICER (Mr. Crapo). Under the previous order, the 
Senator from Illinois is recognized for 15 minutes.
  Mr. DURBIN. Thank you, Mr. President. I appreciate the indulgence of 
Chairman Shelby and Senator Sarbanes for this opportunity.
  Mr. SARBANES. Will the Senator yield to me for just 30 seconds?
  Mr. DURBIN. Yes.
  Mr. SARBANES. Mr. President, we are having two major statements on 
unrelated issues. We have an amendment pending. We are trying to work 
through these amendments. We think there is an opportunity to dispatch 
them in good order. So I certainly encourage people who want to speak 
on the pending Feinstein amendment to come to the floor so they can be 
heard and we can complete that debate and then move to a vote on or in 
relationship to that amendment and then follow on with the other 
amendments and move this bill toward completion.
  I know there is no one in the Chamber wishing to speak now, and we 
certainly think the Senator from Illinois ought to be able to offer his 
statement, so this is not directed at him. I want to certainly assure 
him of that. But as we proceed, thereafter, if we could follow along, I 
think it would be very helpful.
  The PRESIDING OFFICER. The Senator from Illinois.


                Honoring and Protecting Our Armed Forces

  Mr. DURBIN. Mr. President, America's burden in Iraq grew heavier over 
the last 7 days. In that period of time, 27 American servicemen were 
killed and 35 wounded. We were awakened to newspaper headlines on 
Monday morning of: ``U.S. Copter Hit, With 16 Dead.''
  On Sunday, I received the sad news that the National Guard helicopter 
which was downed was attached to the 82nd Airborne Division and piloted 
by 1LT Brian Slavenas from Genoa, IL. It was shot down by a surface-to-
air missile near Falluja in Iraq.
  Press accounts report that the missile was likely a heat-seeking 
missile because it hit the engine, but, thankfully, it did not explode. 
The helicopter went out of control, and First Lieutenant Slavenas 
clearly did the best he could at crash-landing the crippled aircraft. 
Quite possibly he saved the lives of those who survived. Sadly, he did 
not.

[[Page 26910]]

  This morning, I called the Slavenas family expressing my sympathy for 
the loss of their son. I have read the press accounts about his short 
but eventful and full life and the love which his family and so many 
others had for him.
  This morning I heard interviews on National Public Radio of his 
friends talking about a great young man--this 30-year-old helicopter 
pilot. He had just graduated from college a few months ago. He enlisted 
in the Army right after high school and, having completed that stint, 
he enlisted in the National Guard and went to officer training school 
and he became a helicopter pilot. He earned a degree in engineering 
from the University of Illinois. Although Brian stood 6 feet 5 inches 
tall, he was a gentle giant. He was an accomplished pianist. His 
brother Marcus said, ``He was very generous, very patient with people. 
I just loved being with him. He was my favorite person in the whole 
world.''
  I ask unanimous consent that these articles of tribute to Brian 
Slavenas be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                      [From the Chicago Sun-Times]

                           (By Dave McKinney)

       His brothers and his father served in the military, but 
     when 1st Lt. Brian Slavenas was called to active duty earlier 
     this year, his family tried to discourage him from shipping 
     out. He could have resigned his commission in the Illinois 
     Army National Guard and skipped the deployment that carried 
     his aviation unit to Iraq, Despite his family's concerns, the 
     30-year-old helicopter pilot who had graduated from college a 
     few months earlier decided it was his duty to go overseas 
     with his outfit. On Monday, relatives gathered at the family 
     home in the tiny farm town of Genoa to mourn his death spoke 
     with pride--and some regret--about his decision to continue a 
     family tradition of military service.
       Brian Slavenas died Sunday when his CH-47 Chinook 
     helicopter was shot down by shoulder-fired missiles in a 
     attack that killed 16 U.S. soldiers. ``We know he didn't have 
     to be there. But he chose to go and to serve his country,'' 
     said his oldest brother, Eric Slavenas, 39 a U.S. Army 
     veteran who participated in the invasion of Grenada in 1983. 
     ``I miss him. I wish he were still here,'' Eric added. ``But 
     I'm not going to go against his decision. I back him 100 
     percent.''
       Brian wasn't eager to go to Iraq when he left in April, 
     other family members said. He had completed study at the 
     University of Illinois at Urbana-Champaign in December with 
     an engineering degree and was eager to get on with his 
     career. Still, he felt obligated to go overseas with his 
     unit. ``He wasn't keen on the idea but he said, `Once you're 
     in, you can't cop out,''' said his dad, Ronald Slavenas, a 
     former Army paratrooper who later served for a time with 
     Brian in the same Illinois National Guard unit.


                      Drawn by history, adventure

       During his time overseas, Brian's letters, calls and e-
     mails home were usually upbeat and often funny, his family 
     said. Brian liked the adventure of being overseas in such an 
     exotic location, Eric said, recalling that in one letter 
     Brian described how he sipped a glass of Tang as he flew over 
     the ancient ruins of Babylon. ``He enjoyed the sights he saw, 
     being in such a historic part of the world,'' Eric said. ``He 
     knew it was dangerous, but it was more of an adventure for 
     him.'' At times, Brian talked of possibly staying in the 
     military as a career, in part because he loved flying. ``I 
     think during the war, he got gung-ho about what he was 
     doing,'' said his brother, Marcus Slavenas, a 33-year-old 
     former U.S. Marine who served in Operation Desert Storm.
       Brian had already served a stint in the Army, joining after 
     he graduated from DeKalb High School, where he played drums 
     and threw the discus. After finishing active duty, he joined 
     the National Guard, then went to officer school and became a 
     helicopter pilot. Along the way, he also obtained a private 
     pilot's license and earned his degree from the U. of I. 
     Although he stood a towering 6 foot 5 inches tall, Brian was 
     a ``gentle giant,'' according to his father. He was an 
     accomplished pianist and dedicated weight lifter who could 
     get along with just about anyone, his brother said. ``He was 
     very generous, very patient with people,'' Marcus said, 
     adding, ``I just loved being with him. He was my favorite 
     person in the whole world.''
       Besides his two brothers and father, he is survived by his 
     mother, a stepmother, a stepbrother and stepsister.


                          may have saved lives

       Brian, a member of the Peoria-based 106th Aviation Unit, 
     was activated in February and had been serving in Iraq since 
     April, said Brig. Gen. Randal Thomas, adjutant general of the 
     Illinois National Guard. He had been certified to fly the CH-
     47 Chinook helicopter since 2002 and was flying at 150 mph at 
     about 200 feet off the ground when it was shot down near 
     Fallujah, Iraq. Thomas told reporters in Springfield.
       ``We're thankful that a number of individuals survived that 
     crash. It would be speculative to say the pilot did his job 
     and got that aircraft down and saved lives, but I'd sure like 
     to believe that,'' Thomas said.
       The Slavenas brothers say they're upset the Army wasn't 
     taking more precautions to protect the slow-moving Chinook 
     helicopters from missile attacks like the one that killed 
     Brian. Since the attack, the military has banned Chinook 
     flights during the day because the choppers are too 
     vulnerable. ``I support our military. The only thing I 
     question is the tactics that were used in this situation,'' 
     Eric said. ``Someone should have had enough foresight to see 
     ahead that a lumbering aircraft that only flies 180 miles an 
     hour makes a good target.''
       Saying he ``just didn't believe this was our war,'' Marcus 
     isn't sure the conflict was worth his younger brother's life. 
     ``Personally, I wish these people in Iraq well, but I don't 
     care about them like I do about my brother,'' he said. ``I 
     think maybe I would like to see American military used to 
     defend America and not police the entire world.''
       And he regrets not trying harder to keep his brother from 
     going to Iraq.
       ``We all very strongly encouraged him not to go,'' Marcus 
     said. ``In retrospect, I'm going to kick myself--I wish I 
     would have tried harder.
                                  ____


              [From American Morning (CNN), Nov. 4, 2003]

            Interview With Family of Downed Helicopter Pilot

       Soledad O'Brien, (CNN Anchor). There was more violence in 
     Iraq this morning. Another soldier was killed, the second in 
     as many days. The soldier was killed after an improvised 
     explosive device, or an IED, exploded in Baghdad. Another 
     U.S. soldier was wounded in that blast.
       The attacks followed Sunday's downing of a U.S. helicopter 
     near Fallujah, the deadliest single attack on U.S. forces 
     since the invasion. According to eyewitnesses, the second of 
     two shoulder-launched missiles hit the CH-47 Chinook, as it 
     flew just a few hundred feet above the ground. The missile 
     struck the rear engine and started a chain reaction that 
     caused the helicopter to crash.
       Most of the soldiers were heading out to begin a two-week 
     leave when the chopper was shot down. Sixteen soldiers were 
     killed, and among them was the pilot, First Lieutenant Brian 
     Slavenas, a member of the National Guard from Peoria, 
     Illinois.
       A little earlier today, I spoke to his family about their 
     loss.
       Mr. Slavenas, if I can begin with you. Brian actually could 
     have avoided deployment, but he chose not to. Tell me why.
       Ronald Slavenas (Father of Chinook Pilot). Well, that's the 
     kind of person he is. He's a responsible person, and he took 
     on something and he brought it to completion. That's the 
     nature of Brian. He may not like the idea, but he followed it 
     through, and I've got to do it, and he did it.
       O'Brien. I read that he felt obliged to serve his country. 
     He was a helicopter pilot in the National Guard.
       Marcus, why don't you tell me a little bit about your 
     brother, the person, not necessarily the military man?
       Marcus Slavenas, (Brother of Chinook Pilot). Not just 
     because he was my brother, but he was really one of the best 
     people I've ever known. Very clean living, very dedicated to 
     what he did. If he decided to do something he did it. He 
     focused on it and did it until he was excellent at it. He was 
     very kind to people. He was a good person. It was not based 
     on some rules. It wasn't based on religion. It's just the way 
     he was. He cared about those around him and tried hard always 
     to do his best.
       O'Brien. Tell me--I know that he recently finished school. 
     He'd gone to school for engineering. Give me a sense of what 
     his plans were and his dreams were further down the road.
       Unidentified Male. Well, we felt that Brian was probably 
     going to get out of the military and pursue a career in 
     engineering. He had a very promising career ahead of him. He 
     did well in his field. I know there were a lot of companies 
     that wanted to interview him. So, we were hoping and we all 
     felt that he was going to continue on with the engineering.
       O'Brien. Mr. Slavenas, when you first saw the reports--I 
     have to imagine you saw the reports before you heard the news 
     that it was Brian who was actually piloting this chopper. 
     What was your reaction to this? And I've got to ask you, did 
     you think after a certain amount of time that it was indeed 
     your son who was among the lost?
       R. Slavenas. Well, it crossed my mind. I thought he was 
     further west of the area of where it happened, but he's been 
     flying around all over Iraq, I guess, to Kuwait and back and 
     forth. The Chinook is like a shuttle service for different 
     units. He was flying support for different outfits. The last 
     one for the 3rd Armored Calvary, and I thought he was further 
     west. So, that was my kind of hope that maybe that wasn't 
     Brian, but then later on we found the news that it was Brian, 
     actually.

[[Page 26911]]

       O'Brien. You served in the military, sir, and your three 
     sons all served in the military as well. What are your 
     thoughts about the U.S. involvement in Iraq and the 
     occupation of Iraq right now?
       R. Slavenas. Well, now that we're in, we have to stay the 
     course. We just can't pull out. If we pull out, we'll have 
     pandemonium. They have so many different factions in Iraq--
     the Sunnis, the Shiites, the Kurds, and what have you. And if 
     we pull out now without stabilizing the situation, we'll 
     have, as I said before, pandemonium. It would be a 
     revolution. That's my feeling.
       So, we have to keep a stabilizing cap over it and hopefully 
     getting more help from other nations and other sources.
       O'Brien. Marcus, you served in the military as well, and I 
     know you have strong opinions on this.
       M. Slavenas. Yes.
       O'Brien. What's your take on U.S. involvement in Iraq right 
     now?
       M. Slavenas. I don't believe we need to be there. I wish 
     the Iraqis well, and I hope they can figure out their 
     problems, but I don't want this to happen at the expense of 
     our boys. I would like to see them come home. And as far as 
     the troops go, while they're still there, I'm fully behind 
     them. Fight as hard as you can. Destroy the enemy and keep 
     yourselves alive and come back home. But as far as the 
     government is concerned, please try to get out of that 
     business and bring them back home as soon as possible.
                                  ____


                [From the Chicago Tribune, Nov. 4, 2003]

                    For Families, Sad News Hits Home

                 (By Russell Working and Angela Rozas)

       One soldier was going to visit his wife and three children, 
     the youngest of whom he had never met. Another was on his way 
     home to attend his mother's funeral. A third wanted to 
     surprise her family in California with a two-week visit.
       On Monday, the Department of Defense began releasing the 
     names of the 16 soldiers killed when a transport helicopter 
     was shot down in Iraq, marking the single largest loss of 
     service members in that country since major combat ended in 
     the spring. Another 20 soldiers were injured. Many of the 
     dead had been heading home for vacation or emergency leave. 
     Around the country, families that had been anticipating happy 
     reunions instead were stunned by unexpected loss. As of 
     Monday evening, 377 U.S. service members had died since 
     military action began in Iraq. In that time, more than 1,836 
     have been injured as a result of hostile action.
       Among those killed Sunday in the crash was 1st Lt. Brian 
     Slavenas, 30, an Illinois Air National Guard pilot from Genoa 
     who was one of two pilots on the twin-rotor CH-46 Chinook 
     that was shot down Sunday. Four crewmembers, also National 
     Guardsmen, were from Iowa. They were injured, but survived 
     the crash, said Illinois National Guard spokeswoman Lt. Col. 
     Alicia Tate-Nadeau. One of the Iowans was the senior pilot of 
     the aircraft, but it was unclear whether he or Slavenas was 
     flying the Chinook when it crashed, she said. Some 120 
     members of Slavenas' unit, the Peoria-based F Company of the 
     106th Aviation Battalion, are now deployed in Central Iraq. 
     Another 85 Guard soldiers are deployed from an aviation unit 
     housed in Davenport, Iowa.
       Slavenas was a dedicated student who followed his father 
     and two older brothers into the military. He was so 
     unassuming it took him a week to tell his family he had 
     recently been promoted to first lieutenant, said his father, 
     Ronald Slavenas. His unit arrived in the Persian Gulf in mid-
     April, and had been based in Balad, Iraq, since July 22, said 
     Chief Warrant Officer Ty Simmons, operations officer for the 
     company. On Monday, they were grieving Slavenas' death and 
     hoping for the recovery of the helicopter's crew, he said.
       The crews spend their days flying over central Iraq, a 
     dusty desert region better known as the Sunni triangle, where 
     they move everything from Humvees and generators to drinking 
     water and soldiers on leave. During missions, they fly fast 
     and low, seeking to make themselves a more difficult target 
     as they navigate dust clouds, high-tension electric lines and 
     tan-colored towers that blend into the background of the 
     desert, Simmons said.
       Brian Salvenas deployed with the unit to the Middle East in 
     March. Four months earlier, he had received a bachelor's 
     degree in industrial engineering from the University of 
     Illinois, said his mother, Rosemarie Dietz Slavenas, who 
     lives in Rockford. He studied piano in high school and 
     ``played beautiful, beautiful Chopin nocturnes,'' his mother 
     said.
       On Sunday, Ronald Slavenas thought of his son as he 
     listened to reports of a helicopter crash in Iraq, and 
     watched through the front curtain as a uniformed man arrived 
     on the doorstep of his two-story brick home in Genoa. ``My 
     heart sank,'' he said. ``I opened the door and said `He's 
     dead, right?'''
       On Monday, an American flag hung in the rain from the 
     second floor of his house. ``Brian was just a real 
     perfectionist,'' said Slavenas' brother Eric, 39. ``He wasn't 
     a gung-ho, go-to-war kind of guy.''

  Mr. DURBIN. Mr. President, there is another very important issue that 
is associated with this story. I have learned within the last 24 hours 
that all of the Chinook helicopters in the 106th unit, of which Mr. 
Slavenas was a part, consist of seven helicopters from the Illinois 
National Guard and seven from the Iowa National Guard. All of these 
helicopters do not have the aircraft survivability equipment required 
to protect them from the very threat that brought down this helicopter 
on Sunday.
  This is a recurring and troublesome issue. We have heard time and 
again about National Guard forces which are activated and then 
shortchanged when it comes to the best equipment. We expect the most 
updated equipment to be given to the units that are in the fight. We 
understand that Active Duty troops must receive what they need. But 
consider where we are in the war in Iraq. It is supposedly a complete 
and seamless integration of National Guard, Reserves, and Active Duty 
forces. We expect the National Guard, under these circumstances, to 
receive the necessary upgrades in the war theater.
  These Chinook helicopters are supposed to be equipped with one or 
more protective systems, such as the ALQ-156 system, to detect surface-
to-air missiles, along with an automatic flare dispenser as a 
countermeasure. They are also supposed to be equipped with seat armor 
to protect the pilot and crew.
  What I have learned within the last 24 hours, from reliable military 
sources familiar with the situation on the ground in Iraq, is many of 
the Illinois and Iowa National Guard helicopters have flown for almost 
6 months in the theater without the necessary aircraft survivability 
systems. Some of them have received systems, some partial systems, but 
only within the last week or two, many of the systems have been 
scavenged from departing Guard units from other States that are leaving 
Iraq. Many of the helicopters don't have seat armor. There are reports 
that the radios don't function properly. Reliable military sources have 
told me and my office about the level of protection for our helicopters 
in Iraq and what they tell me is unacceptable. They tell me of 
helicopters ill equipped to deal with the threat of shoulder-fired 
missiles; units scavenging equipment from helicopters leaving the 
theater to secure the protective gear they need. They report on 
helicopters flying without seat armor to protect the pilot and crew, 
and of helicopters flying without equipment designed to protect them 
from known infrared missile threats; Guard units scrambling to find the 
parts necessary to equip their craft with protective gear. Is this how 
we equip our men and women who are called to active duty?
  Today I am asking Secretary Rumsfeld to see to it the helicopters in 
the theater are provided with the aircraft survivability equipment 
necessary to meet the expected threat. If that equipment is not 
available, I believe Secretary Rumsfeld should protect those units 
until they are properly equipped or reassess when and where they will 
fly.
  I ask unanimous consent that this letter I am sending to Secretary 
Rumsfeld be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

       Dear Mr. Secretary: We are concerned about reports that the 
     CH-47 National Guard helicopters attached to the 82nd 
     Airborne Division, the unit which included the helicopter 
     shot down by a surface-to-air missile in Iraq on Sunday, may 
     not have had necessary or fully complete aircraft 
     survivability equipment. As you know, 16 military personnel 
     died in that attack, including the pilot, First Lieutenant 
     Brian D. Slavenas, from Genoa, Illinois. The helicopter was 
     from the Iowa National Guard.
       We understand that, while Guard units that are activated 
     may leave the United States without all the necessary 
     equipment, they are to be upgraded in theater. Sources tell 
     us that a number of the helicopters in the unit in question 
     were flying in Iraq for almost six months without necessary 
     equipment, and were only recently provided aircraft 
     survivability equipment, some of which was not complete. Some 
     may still be lacking this equipment.
       First, we ask that you immediately ensure that the 
     helicopters in theater are provided with the aircraft 
     survivability equipment necessary to meet the expected 
     threat. If that equipment is not available, you should 
     protect those units until they are properly

[[Page 26912]]

     equipped, or re-assess when and where they will fly.
       We ask that you investigate, and respond as soon as 
     possible, whether the helicopter that was shot down on Sunday 
     had on board a fully-operational ALQ-156 system with an 
     automatic flare dispenser and whether it had seat armor; 
     whether all of the helicopters in this unit are fully 
     equipped at this time and the precautions being taken to 
     protect the crews and passengers of those not properly 
     equipped. The same questions need to be asked regarding all 
     activated Guard and Reserve helicopter and fixed-wing units.
       We understand that the ALQ-156 is intended to protect 
     against the expected threat from some surface-to-air 
     missiles, but may not be as effective against other missiles. 
     Is the ALQ-156 adequate for the expected threat in Iraq? If 
     not, we would like to know when the helicopters will receive 
     the upgraded equipment and your assessment of the risk to 
     military personnel of flying without such upgraded equipment.
       I appreciate your prompt response to this inquiry.
           Yours truly,
                                                 Richard J. Durbin
                                                     U.S. Senator.

  Mr. DURBIN. Mr. President, I am also calling on Secretary Rumsfeld to 
investigate and respond as quickly as possible on whether the 
helicopter that was shot down on Sunday had on board a fully 
operational ALQ-156 system with an automatic flare dispenser and 
whether it had seat armor. I also believe we need to know the status of 
the other helicopters in this unit in reference to protective 
equipment, and what steps are being taken to protect the crews and 
passengers in those that are not properly equipped. I understand the 
ALQ-156 system is intended to protect against the expected threat from 
surface-to-air missiles, but may not be effective against other 
missiles in the theater.
  I am also asking the Secretary if that ALQ-156 is adequate for the 
expected threat in Iraq. If not, I would like to know when the 
helicopters will receive the upgraded equipment and his assessment of 
the risk to military personnel of flying without such upgraded 
equipment.
  I find the reports I am receiving from military sources about the 
lack of protective equipment on these helicopters to be alarming and 
unacceptable. We know what a dangerous environment Iraq is. The threats 
from surface-to-air missiles were well known even before this tragic 
crash. The helicopter that was shot down was not on a mission directed 
against regime remnants or terrorists. It was transporting soldiers to 
the airport in Baghdad so they could leave for R&R.
  We will not know for sure how it was shot down or how it was equipped 
until the investigation is completed. This tragedy highlights the fact 
that protective equipment cannot only be reserved for missions in the 
fight. Every mission is in the fight in Iraq today.
  The Senate passed the Iraq supplemental appropriations conference 
report yesterday with more than $87 billion for equipment for our 
troops in Iraq. If the funds are not adequate to protect our troops and 
aircraft, the Congress must be advised immediately. If there is a 
shortage of equipment, we must act immediately to secure it.
  The dangers of war are well documented. Every soldier, sailor, 
marine, and airman should know this Government has done everything in 
its power to protect them, keep them safe, and give them everything 
they need so they can complete their mission and come home safely.
  We have given this administration every dollar for which they have 
asked. Now they must give our soldiers what they need to be safe and 
successful--the protective gear and body armor they need--as they work 
on the ground among dangerous situations. Armor is needed for the 
Humvees to protect them from rocket-propelled grenades, and they need 
state-of-the-art equipment to protect our helicopters from shoulder-
fired missiles.
  I call upon the Secretary to address these shortages immediately and 
to investigate fully whether the helicopter that was shot down and all 
of the helicopters in Iraq are adequately protected. We owe this to our 
men and women in uniform and to their families who pray for their safe 
return.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Maryland is recognized.
  Mr. SARBANES. Mr. President, does the Senator from Colorado wish to 
speak?
  Mr. ALLARD. Yes.
  Mr. SARBANES. Before the Senator begins, I want to renew the call we 
made a few minutes ago. I know the chairman agrees with me in doing 
this. To those who want to speak on the pending amendment, we hope you 
will come to the floor and do so. We hope others who have amendments 
they want to offer will be prepared, once we dispose of the current 
amendment, to present their amendments so we can move along.
  There is a possibility I think we can finish this bill in good order. 
I know that is what everyone would like to accomplish. I know Chairman 
Shelby is anxious to, on the one hand, move things along and, on the 
other hand, ensure people have an opportunity to address these matters. 
In order for them to do that, we need them to come to the floor, so we 
are putting out that call.
  Mr. REID. Will the distinguished Senator from Maryland yield for a 
question?
  Mr. SARBANES. I am happy to yield to the distinguished leader for a 
question.
  Mr. REID. My concern with this legislation is not as much the 
legislation itself as it is that Thanksgiving is coming soon. We don't 
have the luxury of waiting for days. This legislation could take days 
with the order that is now in effect in the Senate. We have more than 
20 amendments. If we take several hours on each amendment, we are not 
going to finish this week. I ask that those people--Senator Feinstein 
was here and she has indicated on her next two amendments she would 
take a half hour on each.
  I ask the floor staff, when they have an opportunity, we probably 
should probably get two amendments locked in so we have at least time 
limits on those two. I know Senator Boxer has some amendments. If we 
could ask those Senators to come forward and agree to time limits on 
them, that makes it much easier for the two managers to manage the 
bill. I am quite confident that if the two leaders see the work on this 
bill is not going very quickly, it will be an awfully late night 
tonight because I know there are many things the two leaders want to 
finish on Thursday and Friday. I think there was some expectation and 
hope the bill would be completed by tomorrow.
  The PRESIDING OFFICER. The Senator from Colorado.
  Mr. ALLARD. Mr. President, I thank the chairman of the Banking 
Committee and the ranking member for giving me the opportunity to speak 
on the bill. To accommodate them, if individuals come to the floor 
willing to offer an amendment, signal me and I will clear the floor and 
give them an opportunity to offer their amendment. I agree with their 
goal of getting us out of here quickly and getting the work done. If 
someone has an amendment, I do not want to hold up the process.
  I rise in support of S. 1753, commonly referred to as the National 
Consumer Credit Reporting System Improvement Act of 2003. I was pleased 
to support the bill as a member of the Banking Committee, and I am sure 
it will receive strong support on the Senate floor as well.
  I would like to thank Chairman Shelby and his staff for their hard 
work. This is a balanced, sensible bill and clearly a product of their 
willingness to listen to all interested parties. Chairman Shelby 
compiled an extensive hearing record and provided a comprehensive 
foundation for crafting this legislation.
  He crafted a bill that provides a balanced approach to the concerns 
expressed during the hearings and provides significant improvement, I 
believe, to the Fair Credit Reporting Act. I thank him for working so 
closely with committee members to ensure that our concerns were 
addressed in this bill.
  I would also like to acknowledge the efforts of the ranking member, 
Senator Sarbanes, and his staff. As I mentioned, this bill received 
strong bipartisan support in committee, and this is

[[Page 26913]]

certainly due in part to the diligence of Senator Sarbanes. His effort 
and his support have made this a stronger and better bill.
  Reauthorization of the Fair Credit Reporting Act is vital to the 
functioning of our Nation's credit markets. I think that goes without 
saying. Without the FCRA, credit would cost more or, in many cases, 
simply would not be available to consumers.
  S. 1753 ensures that the markets will continue functioning smoothly 
by permanently reauthorizing the Fair Credit Reporting Act. As a former 
State legislator and a strong champion of States rights, I do not take 
Federal preemption lightly. In fact, I have a very high threshold for 
Federal preemption. I believe, though, that FCRA meets the necessary 
standard. The credit markets truly are national, and a patchwork 
approach to credit reporting will quickly disintegrate the necessary 
comprehensive approach we need.
  When it comes to credit reports, accuracy is in the best interests of 
both industry and consumers. I believe this bill will help improve 
accuracy in credit reports. Consumers will have increased access to 
their credit information and increased tools to combat identity theft.
  The framework provided in the bill provides sufficient flexibility 
for the act to adapt with time and changes in technology. I am 
especially pleased that S. 1753 includes a bill I have worked on with 
Senator Schumer referred to as the Consumer Credit Score Disclosure Act 
of 2003. This provision would allow consumers applying for a mortgage 
to receive a copy of their credit score. Credit scores are increasingly 
being used in deciding whether to extend credit. Yet consumers do not 
always have access to this information.
  What I found out about credit scores and heard in reports back from 
my constituents about things that affect their credit was that few of 
them realize that the number of times you apply for a credit card, for 
example, could impact your credit. It does when you look at the credit 
score.
  I always figure as long as you paid your bills on time or your credit 
cards on time and the more credit cards you had and paid them on time, 
it just showed what a better job you were doing in managing your 
finances and would actually enhance your ability to get loans. That is 
not true. If you got carried away and decided to apply for every credit 
card you received in the mail, you could actually adversely impact your 
credit rating, particularly as it applies through the credit score.
  This provision contained in S. 1753 would ensure that consumers would 
receive the critical information when applying for a mortgage, which is 
generally the largest purchase a person will make during their 
lifetime.
  In addition to their actual numerical score, the consumer will be 
entitled to receive information concerning the factors that helped 
determine their score, as well as ways in which they can improve their 
score. This provision will empower consumers to shop around and help 
prevent them from becoming victims of predatory lending.
  I believe expanding access to credit scores is an important victory 
for consumers, and I am pleased it has been included in the bill we are 
considering today. I am hopeful this will be the first step toward 
giving consumers even broader access to credit scores.
  As chairman of the Housing Subcommittee, I would also like to make a 
few comments on the impact, the importance of the Fair Credit Reporting 
Act as part of the home buying process. Because FCRA gives lenders 
access to more accurate and more complete credit information, they are 
able to more accurately price risk. This is important because for most 
people, a home is the largest purchase they will make. The ability to 
accurately price the risk as reflected in mortgage rates can make the 
difference of thousands and thousands of dollars over the life of the 
mortgage.
  The availability of credit information stemming from the FCRA has 
reduced the cost of home ownership for many and opened up previously 
unavailable opportunities to others. In fact, home ownership rates are 
currently at record highs. Permanent reauthorization of the Fair Credit 
Reporting Act will help us continue on that path. This is especially 
important as we work to expand the minority home ownership rates as 
minorities are disproportionately impacted when credit becomes less 
available.
  The Fair Credit Reporting Act has been beneficial to consumers, and 
the improvements contained in S. 1753 will extend those benefits. I am 
pleased to add my voice to those in support of the bill, and I 
encourage my colleagues to join me in voting for the National Consumer 
Credit Reporting System Improvement Act of 2003.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from South Dakota.


                           Amendment No. 2054

  Mr. JOHNSON. Mr. President, I wish to express my great high regard 
and respect for my colleague from California, Senator Feinstein, but I 
must rise in opposition to the amendment she offered earlier this 
afternoon.
  I think it is important for us to keep in mind that the Fair Credit 
Reporting Act provided for a national preemption going back to 1996. It 
has been an extraordinary success story for America's consumers, 
particularly America's middle class and working families who previously 
suffered the most from a lack of access to credit but now find 
themselves having access to credit never before imagined and having it 
done in an instant fashion.
  The legislation before us is an enormously complex piece of 
legislation. It takes the 1996 preemption and builds on it, and 
strengthens consumer rights beyond anything we have ever known before. 
Chairman Shelby and ranking member Sarbanes deserve great credit for 
what they have been able to do. They put together a bill that had a 
unanimous vote out of the Senate Banking Committee--no easy feat, we 
all know.
  To now on the floor of the Senate introduce a very complicated and, 
some would suggest, improperly drafted amendment only serves to slow 
the process and, in fact, perhaps even to jeopardize passage of the 
reauthorization of the Fair Credit Reporting Act, something that must 
be done before the first of the year, otherwise, the consequences would 
be catastrophic not only to the business community and to our economy 
but to American consumers who would be the biggest losers of all if we 
were unable to pass legislation because of the additional burden put on 
it by the Feinstein amendment.
  I wish to very briefly touch on some problems that this amendment 
poses. The amendment being offered is different from and far more 
unworkable than the affiliate sharing restriction in the California 
legislation, and I will comment on why this is so.
  First, the amendment being offered is much broader in scope than the 
California bill. Despite claims that they fixed the overly broad scope 
because of drafting errors, that simply is not the case. Unlike the 
California amendment SB-1, which applies specifically to financial 
institutions, this amendment applies to any institution that has 
affiliates, including retailers, manufacturers, nonprofits, labor 
unions, churches, universities--basically, every type of organization 
in the country that shares certain consumer report information.
  Yet the most important exception by this amendment being offered is 
provided only to financial institutions. Clearly, the drafters of the 
amendment have spent a lot of time on the California bill, perhaps more 
so than on the FCRA, because there does not seem to be the full 
appreciation of the breadth of the very statute they are amending.
  The Feinstein amendment provides exceptions to certain institutions 
based on their functional regulator, a concept we defined in Gramm-
Leach-Bliley in the Banking Committee and which is specifically defined 
in this amendment. It is limited to financial institutions such as 
banks, securities firms, and insurance companies.
  This means while financial institutions can qualify for what 
proponents refer to as the ``silo'' exception, other covered businesses 
cannot. I assume this is probably a drafting oversight, but it simply 
reinforces my concern

[[Page 26914]]

that this amendment has not been fully vetted by the Banking Committee 
or by any other presence in the Congress. I doubt very seriously that 
the sponsors are trying to give large financial institutions a 
competitive advantage, but that is one of the consequences of the 
amendment that has been offered.
  The FCRA has a sweeping scope by design. Congress believed and still 
believes that sensitive information bearing on credit, employment, or 
insurance risk, no matter who is using it, should be protected. That is 
why the FCRA is by no means limited to financial institutions, and 
should not be.
  The amendment being offered backtracks on the final version of the 
California legislation with respect to the so-called common database 
exception that was an integral part of the deal.
  The amendment contains the original, unnegotiated version of the 
common database exception, which was widely understood to be 
unadministratable. This provision, which was intended to assure 
companies with large information databases that they would not have to 
undergo major systems revisions, fails to accomplish that goal.
  The final version of the database exception prohibited information 
from a common database to be further disclosed or used by an affiliate. 
The amendment before us this afternoon prohibits not only disclosure or 
use but even access itself.
  What is the point of a common database if it cannot be accessed? I 
understand that the California bill has come under fire recently for 
including what some view as a giant loophole of the common database 
exception, and I share Senator Feinstein's concern about the loophole 
but it is not right to make a major change to a central provision and 
continue to claim that this amendment mirrors SB-1, the California 
legislation.
  Even if all the California exceptions were added, the amendment would 
still be far less workable than the affiliate sharing provision in the 
unanimously adopted Senate Banking Committee bill.
  With all the California exceptions, the only sharing not permitted 
would be affiliate sharing used for solicitation and marketing 
purposes.
  It is simply not true, as some have suggested, that the California 
opt-out applies to information shared for a broad range of purposes 
other than marketing and solicitation. But if sharing for solicitation 
is all that is subject to the California opt-out, then why not use the 
far more straightforward approach of the bipartisan Banking Committee 
bill? That is, why not target the opt-out only to solicitations of 
noncustomers made possible by affiliate sharing?
  As the Banking Committee has recognized, and as the Senator from 
California has pointed out many times during today's debate, the real 
consumer concern is getting bombarded by advertisements from unfamiliar 
companies. We all sympathize with that. The bipartisan committee bill 
addresses this concern head on with its targeted, focused provision on 
affiliate sharing, while the pending amendment, even if it added all of 
California's numerous exceptions, which it does not, is far more 
cumbersome and overreaching on its face. In fact, the committee bill 
gives consumers far more control. S. 1753 allows consumers to opt out 
of all marketing from any affiliate. The pending amendment does not do 
that.
  For example, the California silo exception strips away consumer 
control over information shared by affiliates in the same line of 
business. By contrast, we believe consumers should not have to be 
bombarded by marketing materials just because they have chosen to do 
business with a large financial institution.
  Sharing of information among affiliate entities has a significant 
impact on the cost and availability of credit in ways that are not 
always apparent to consumers. This is a critical point that I believe 
has been lost in the course of this debate.
  Former Treasury Secretary Robert Rubin testified back in 1997, for 
example, that consumers could expect ultimate savings of as much as $15 
billion per year from the increased efficiencies that affiliation 
provides.
  Treasury Secretary John Snow recently testified that affiliate 
information sharing serves a critical purpose in the war on identity 
theft.
  FDIC Chairman Don Powell has noted that access to credit and the cost 
of credit is far more favorable in the United States than in other 
parts of the world due, in large part, to the relative ease of 
information sharing between potential credit customers and potential 
lenders.
  Finally, Federal Reserve Chairman Alan Greenspan has noted that 
information sharing has had ``a dramatic impact on consumers and 
households and their access to credit in this country at reasonable 
rates.''
  The Senate bill ably balances the legitimate concerns of consumers 
against the substantial benefits that information sharing brings to 
this economy and to all consumers. As Chairman Shelby and ranking 
member Sarbanes have noted, this is an enormously complicated area of 
law, and the committee took great care to guard against unintended 
consequences, spent literally months on the drafting and formulation of 
this legislation.
  Make no mistake, it is hard to imagine that what we are doing here 
today is the last word on privacy. Our constituents will continue, 
rightfully so, to demand that we review our current laws as information 
technology develops. I believe we intend in a bipartisan fashion to do 
just that.
  At this point in time, giving consumers the right to opt out of 
marketing, with no exceptions, is the right rule for American 
consumers, while at the same time providing immediate and affordable 
access to credit to all of our consumers, regardless of their economic 
background, regardless of racial or other factors is something that I 
think this Senate can take great pride in and we can take great 
satisfaction in the quality of this bipartisan legislation.
  I urge my colleagues on both sides of the aisle to mirror the 
bipartisan vote of the Senate Banking Committee and to support the FCRA 
reauthorization and oppose the Feinstein amendment.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Alabama.
  Mr. SHELBY. I have listened carefully to the comments of Senator 
Feinstein earlier, and I will make a couple of important points in 
response to her amendment.
  First, as a privacy advocate, I fully appreciate the interest and 
concern at hand. Indeed, both Senator Sarbanes and I have been very 
sensitive and worked together a lot on privacy concerns. As we took up 
the Fair Credit Reporting Act, this was one of the key considerations 
we sought to balance, even as the law itself requires. We did this in 
what was a very comprehensive, transparent, and lengthy review of the 
law and issues at hand as we considered reauthorizing our national 
credit standard.
  Second, the amendment of the Senator from California makes two basic 
assumptions which ultimately guide her amendment's approach and goal, 
as I understand it. No. 1, that there is something inherently nefarious 
about the use of affiliate structures; No. 2, that consumers have no 
rights or means to protect themselves with respect to the handling of 
their transaction and experience information.
  I believe that our consideration in the Banking Committee would 
therefore be instructive in understanding the better approach adopted 
in our bill and why I intend to oppose the amendment of the Senator 
from California. To the first point: Why do affiliates exist? Companies 
establish affiliates for a variety of legal, tax, and accounting 
reasons--because laws require them to do it.
  What do these structures mean for consumers? Some companies choose to 
create separate legal entities known as separately capitalized 
affiliates. Other companies elect to locate all of their business lines 
in a single entity. Regardless of the structure that a firm employs, 
consumer information is generally used in the same fashion. Affiliates 
or the separate business line share

[[Page 26915]]

it to service their customers, fight fraud, or develop new business. 
The affiliate sharing provisions contained in the Fair Credit Reporting 
Act exist to make it clear that companies should not suffer because 
they have chosen a particular corporate structure.
  From the consumer's perspective, I believe there is no real 
difference between a company making an internal transfer of information 
among departments and sharing between affiliates. In fact, in many 
cases where affiliate sharing is occurring, most consumers would not 
recognize that the two parties are involved in the transfer. Rather, 
they would be under the impression that information is merely being 
moved within the single entity with whom they have chosen to do 
business.
  Second, there are real rules and provisions governing the manner in 
which transaction and experience information is handled. First, we need 
to consider what exactly transaction and experience information is. 
Transaction and experience information involves checking and saving 
account balances, credit card balances and repayment history, mortgage 
balances and repayment history, and mortgage and brokerage account 
balances and transaction activity. In many instances, the information 
is the very information provided to the consumer reporting agencies 
where, as consumer report information, consumers are afforded 
significant rights under the Fair Credit Reporting Act.
  More important, however, this is information that is routinely 
provided to consumers as required by separate laws and regulations. For 
example, the Truth in Lending Act, the Fair Credit Billing Act, the 
Truth in Savings Act, the Electronic Funds Transfer Act, provisions of 
the securities laws and the Uniform Commercial Code all provide 
consumers substantive rights with respect to transaction and experience 
information. These include disclosures and access rights and error 
resolution procedures.
  I believe the bottom line is that consumers already have access to 
and rights concerning transaction experience information right now 
under the law. But at the end of the day, I believe the main concern I 
heard with affiliate sharing uses was the use for marketing purposes. 
At the end of the day, I believe that is all that is really left 
restricted, in some way, under California's approach after accounting 
for the exceptions and exemptions.
  So after spending more than a year considering the law carefully in 
order to balance the needs of our national credit system, which we all 
believe is crucial to the operation and strength of our economy, with a 
need to protect consumers rights, the Banking Committee identified two 
key areas for increased Federal protection: The sharing of medical 
information and restricting affiliate sharing used for marketing 
purposes.
  This bill does so in the context of the Fair Credit Reporting Act in 
a straightforward and narrowly tailored way and does not give 
preferential treatment to certain business models over others.
  This brings us to a third and very important point. The Fair Credit 
Reporting Act deals with more than just financial institutions. The 
sponsors, as you know as a member of the Banking Committee, Mr. 
President, seek to impose a model that was tailored strictly for 
financial institutions to all furnishers of credit information, subject 
to the Fair Credit Reporting Act. This model is largely based on SB-1, 
the California Financial Services Law.
  The amendment's sponsors have tried to graft a banking bill on to the 
Fair Credit Reporting Act. This effort, I believe, is misplaced, and 
this effort does not mesh with how the FCRA, the Fair Credit Reporting 
Act, works and to whom it applies. Gramm-Leach-Bliley made it 
permissible for California and all other States to pass legislation 
that regulates third party sharing activity. This bill would not affect 
those provisions in the California law that come because of Gramm-
Leach-Bliley. With respect to the part of SB-1 that conflicts with the 
Fair Credit Reporting Act, the California law was preempted, making it 
unenforceable when it was enacted. This bill does not change or alter 
that fact in any way.
  The irony is that, even if we were to assume these provisions were 
violated, California's attempt to overturn Federal law is actually 
weaker than the Senate bill. The California law, as I have heard here, 
as it is targeted at financial institutions, covers a much more limited 
range than the broader Fair Credit Reporting Act, which deals with 
information, not entities, and therefore includes retailers, auto 
dealers, mortgage providers--anyone who furnishes credit.
  Furthermore, California's rule is eaten by its exceptions and its 
exemptions. Its provisions provide consumers with no real choices or 
meaningful protection. The Senate bill covers the areas that consumers 
care about--marketing and the sharing of medical information--by 
providing real protection. Unlike the Senate bill, the California law 
still exempts most of the largest financial service firms they claim 
the law is intended to address.
  The Senate bill was carefully tailored to address key concerns in a 
more clear and a concise way. The Senate bill before us targets 
unwanted solicitations without otherwise preventing sharing activities 
that provide benefits to consumers. Unlike the California bill, the 
Senate bill is designed to protect consumer interests. The 
unenforceable portions of the California law were designed to promote a 
specific business model by hobbling others.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from California.
  Mrs. BOXER. Mr. President, I rise in favor of the Feinstein-Boxer 
amendment, and I note that there are a number of others on that 
amendment as well. I hope colleagues will realize this amendment will 
make this bill better, will make this bill stronger, and I am going to 
take a few minutes to explain why in as simple a way as I can.
  I stand here very proud that my State treasures privacy and they 
acted on that value. After years of struggle, California put into law 
the most tough financial privacy standard in the Nation.
  Others can say oh, that is not true, and they can quibble, but the 
facts are the facts. Every consumer group that you ask, any group that 
is objective on the subject, will tell you that our law is the best and 
is far better--certainly than the House bill, and better than the bill 
that is before us today.
  I do want to compliment my friend. You have made some good advances 
here. I will talk about that in my statement. But we can do better, and 
I offer this amendment with Senator Feinstein in a very friendly way, 
in the hopes that maybe we can make this better.
  The struggle to pass SB-1, California's financial privacy law, was 
very long and very transparent. I want to say that State Senator Jackie 
Speier did an unbelievable job. For 4 years, she worked with banks on 
behalf of the consumers. The industry invested more than $20 million in 
lobbying expenses and campaign contributions during those 4 years but 
eventually a wonderful thing happened. The banks came to the table and 
they negotiated with Senator Speier. The fact is, there was a reason. 
They saw the handwriting on the wall. They saw that there was going to 
be a State initiative. They had already gathered 550,000 signatures 
quickly and Senator Speier's provision for more strict privacy was 
supported in the polls. How about this? California Democrats in the 
polls supported this initiative by 96 percent; and California 
Republicans, 88 percent; Independents, 90 percent.
  So Senator Speier had touched on a very important value of 
Californians. I really do believe if you took a poll today, just a 
really carefully worded one which went into every State in the Union, 
there would be support for this Feinstein-Boxer amendment to make this 
bill stronger.
  I will explain it.
  The committee went ahead and did some good things. It includes fraud 
alerts for consumers and protection for credit card numbers on receipts 
and free credit reports.
  It is very important they say that you can't go outside and share the 
information with outside companies.

[[Page 26916]]

That is great. I salute Senators Shelby and Sarbanes for that progress.
  However, there is one major problem Senator Feinstein and I are 
addressing in this amendment. We are saying, first of all, if a State 
wants to go further than you have, we ought to have that chance. Your 
bill ought to be a ceiling. All good wisdom doesn't reside here. We 
always like to think it does, but it doesn't.
  A lot of our States are ahead of us, and they want to do more. Yet 
California finds itself left out because there is no preemption for our 
State. We know we are not going to get that. We have 35 million people 
in our State. We can't get an exemption. We understand that. We are 
simply asking you follow the lead of our State on this one because I 
think it is the fair thing to do.
  Some people listening today might say, Well, the committee bill says 
you can't go outside and share information. But you can share it with 
your own affiliates that are in your little corporate family. What is 
wrong with that? That is a logical question until you look at the 
banking industry and look at how big these families can get.
  Let us take a look at some of these families for which this bill 
would allow affiliate sharing.
  Let us take a look at Citigroup. They are small? They have 1,630 
affiliates.
  Bank of America. How well I remember the proud history of that bank 
in my State. They have 1,323 affiliates.
  JP Morgan, 967 affiliates; Wachovia Corporation, 886 affiliates; 
Wells Fargo, 671; Bank One, 253.
  When you say to all of these people you cannot share information 
outside your family, you are in essence saying you can share it within 
your families. We are talking about thousands of affiliates that will 
get every bit of information about you and your financial transactions. 
My colleagues can stand up here from night until morning and argue with 
me on the point that we are wrong on this. I know we are right. This is 
the right thing to do to protect our constituents.
  Let me show you Bank of America affiliates. I want to show it in a 
way that is pretty graphic. I will not read every one of their 
affiliates. I am going to truncate and do this quickly.
  We have nine charts listing all of these. These are Bank of America 
banks: Commonwealth National Bank, First National Bank, National Bank 
of Howard County, and American State Bank. I can't even pronounce some 
of these. Bank of America Mexico; Finacero Bank of America. They will 
know your transactions. That is just the first Bank of America chart. 
Let us look at one other. We do have nine of these. I will go quickly.
  Here is another one. Let us go to Bank of America insurance companies 
and look at who they own: First National Insurance Services, American 
Fidelity and Liberty, Bank of America Insurance Services, Inc., and 
Home Focus Services. I don't know what they do, but they will know what 
you do. General Fidelity Life. How about Boatman's Insurance Agency? 
You do business with any one of these and more than a thousand 
affiliates will know how much you earn, what your Social Security 
number is, how did you pay, if you missed a payment, what your likes 
and dislikes are.
  Let us show a couple of others.
  Bank of America and other affiliated companies: Oakland Trace 
Redevelopment, Holly Springs Meadows, LLC, East Nashville Housing. You 
go into a bank in California and East Nashville will know what you are 
worth.
  Dallas-Ft. Worth Affordable Housing, Old Heritage New Homes, Texas 
Corporate Tax Credit Fund, and it goes on. Michigan, Osbourne Landing 
Limited, it goes on and on. West Wood Manor Development, Elk Ridge 
Apartments.
  The point I am making--and I will show one last chart. We have 9 of 
these charts listing Bank of America's 1,600 affiliates, for anyone who 
really cares enough to examine each and every one of these affiliates.
  Our point is we could go on and on and make our point with each and 
every chart, but I am going to spare my colleagues. They have worked 
long and hard already today. Here is the point: Do not share. That is a 
simple message. This Senate supported ``do not call.'' We said people 
deserve their privacy. If you don't want to get a call at night, you 
shouldn't have to get a call at night.
  We are saying if you decide--and our amendment simply says you have 
to opt out automatically under this Feinstein-Boxer amendment--your 
information would be shared, you have to take an affirmative step and 
opt out. If you are a person who believes in your right to privacy, and 
you don't want some company over in The Netherlands to know what you 
are about, because there is one here--Bank of America Netherlands. How 
about Odessa Park? These are worldwide affiliates. We are very proud of 
Bank of America. Good for them. They have all of these affiliates. But 
not good for them if they start to share information.
  Under the underlying bill, they can share all sorts of information 
with every one of these affiliates. Guess what. You get turned down for 
a loan, let us say, because of information that was shared among the 
affiliates. You have absolutely no right to know who told who what, 
where, and when. What if it was wrong? There is no redress. There is no 
way to correct the record.
  All I can say is I have heard the debate, and I have heard our 
amendment taken out of context: Oh, gee, that amendment will make it 
worse for people. Wrong. I will tell you who is supporting our 
amendment--people who have fought their whole lives for consumers and 
for the rights of people to have privacy. That is who is supporting us.
  The AARP, which represents many seniors, supports our amendment; the 
ACLU fights for civil liberties and privacy; Consumer Federation of 
America, Consumers Union, the National Association of Consumer 
Advocates, National Community Reinvestment Coalition, Privacy Rights 
Clearinghouse, Privacy Times, U.S. PIRG. These are people who 
absolutely know our amendment is a step in the right direction.
  I have a couple of other points to make. I will make them as quickly 
as I can.
  I want to share with you some of the quotes that were made by the big 
banks when California passed its law. Did they complain about it? Not 
at all. This is what they said.
  This is Diane Colborn who lobbies for Personal Insurance Federation. 
She called this workable, reasonable compromise a ``balanced measure 
that will provide meaningful protections to consumers while also 
addressing the workability concerns that our members and customers 
had.''
  Jim Bruner, who lobbies for the Securities Industry Association, 
appeared before our committees in California. He said the measure is a 
``good, workable, reasonable bill.''
  The ink didn't dry on that bill before they came up here and started 
wining and dining and talking to people--I guess you can't wine and 
dine anymore, and that is a good thing--about why this bill couldn't go 
too far. Don't go too far; it is a burden. I am so sorry about that. I 
was so excited when California passed the privacy protections.
  In closing my remarks, I will read some newspaper editorials.
  From the New York Times: ``Buyer Beware,'' just written a few days 
ago.

       This (affiliate sharing) is a dark and unmapped universe in 
     which banks, credit card companies and insurers have free 
     rein to share detailed records among thousands of affiliates, 
     with customers largely powerless and unknowing. Bank 
     balances, buying habits, investment profiles and more can be 
     tapped into in ways that invite fraud, marketing assaults, 
     identity theft and unfair credit decisions.
       The Senate measure contains no real solution for 
     indiscriminate data sharing. Far preferable is an amendment 
     to be offered by Senators Dianne Feinstein and Barbara Boxer 
     of California that would require advance notice from 
     businesses so consumers would have a chance to block planned 
     sharings that reached beyond relevant credit issues. 
     Rejection of this amendment would only compound businesses' 
     temptation to be marketers rather than the protectors of the 
     privacy of the American consumer.

  We know in the underlying bill you cannot share for marketing 
purposes, but there is a giant loophole dealing with preexisting 
relationships, making

[[Page 26917]]

it confusing and complicated. That is why I believe the Feinstein-Boxer 
amendment will cure these problems.
  From the San Jose Mercury News:

       The financial services industry is guilty of a nasty bait-
     and-switch on the people of California. Its lobbyists worked 
     with privacy advocates to help shape the law into what the 
     industry called a reasonable and workable compromise. All the 
     industry said it hoped for was a uniform privacy standard 
     across the nation.
       Yet immediately after the California law was approved, 
     industry lobbyists went to Washington to try to erase it from 
     the boxes. The only national standard they are interested in 
     is one that gives them the unfettered right to sell their 
     customers' personal financial details to the highest bidder. 
     That was the San Jose Mercury News, in the heart of Silicon 
     Valley. This is a newspaper that very often is on the cutting 
     edge of the way we ought to be thinking about financial 
     issues.

  I close with an editorial from The Los Angeles Times, October 29, 
entitled ``Put Privacy on the List.''

       Congress promised voters that it would improve consumer 
     rights with regular reviews of the Fair Credit Reporting Act, 
     initially passed 33 years ago to balance the competing 
     interests of business and consumers. Bills in the House and 
     Senate would make it easier for consumers to see credit 
     reports and report identity theft. But the legislation 
     wouldn't help consumers keep private their bank balances, 
     spending patterns and other sensitive data. Congress could 
     cover this gaping problem by adopting the amendment crafted 
     by Feinstein and Boxer, which keeps alive the protections at 
     the heart of SB 1.

  Colleagues, I know sometimes we get bills where deals have been cut, 
deals have been made, and everyone has put their hand out like after a 
sports game, saying: OK, on blood oath, we will not take amendments. I 
have been here long enough to know that.
  I hope some colleagues will be open to this. We have done the right 
thing. Strong percentages of the American people--if it mirrors 
California, it would be 80 percent and above--support making sure that 
your personal-private financial data cannot be shared within a family 
of a company which could include thousands--1,600, 2,000, who knows--as 
more and more mergers go on. We do not want that information to be 
shared.
  That is exactly the right course to take. I am hopeful we will get a 
strong vote on the Feinstein-Boxer amendment.
  I yield the floor.
  Mr. DURBIN. Mr. President, I rise to speak in support of the 
Feinstein-Boxer amendment to S. 1753 on the sharing of information 
among affiliates. This amendment would give consumers the choice to opt 
out of having their personal ``transaction and experience'' information 
shared among affiliates. The privacy provision in the California law 
represented by this amendment was the result of long negotiations among 
consumer groups and banks, and in the end the banks in California 
called this provision ``reasonable and workable.'' Reasonable and 
workable. I am a cosponsor of this amendment because, in a reasonable 
and workable way, it simply gives consumers some control over their 
personal information.
  Let me emphasize just a few key points about this amendment. The 
amendment is still about an opt out, not a blanket restriction. It just 
gives consumers the option of keeping their personal information 
personal. Now the underlying bill also has an opt out, but that opt out 
is minimal: it is just for marketing, just for new customers, and would 
expire 5 years after the consumer requested it. The Feinstein-Boxer opt 
out, by comparison, is for the exchange of transaction and experience 
information; it is for uses other than marketing; it is for current and 
new customers; and it has no expiration. It, therefore, provides more 
protection for consumers who are concerned about protecting their 
privacy.
  Another thing to remember about this amendment: the amendment does 
not alter preemption. With this provision States would still be 
deprived, permanently, of the opportunity of enacting their own 
legislation relating to affiliate sharing. If we are going to have a 
national law, we need a reasonable national standard.
  Mr. President, a lot has been said about this amendment and how it 
would create all kinds of problems, so let me be clear about what this 
amendment would not do.
  The amendment would not prevent the extension of affordable credit. 
Affiliates could still request credit reports and scores, as always.
  The amendment would not prevent affiliates working under the same 
name in the same line of business from working together: it contains an 
exception for sharing among such close affiliates. It would not impede 
the investigation for fraud or identity theft. It would not impede 
transactions or the servicing of a product requested by the consumer. 
It would not impede institutional risk control. It would not impede the 
resolution of customer disputes or debt collection. It would not impede 
efforts to locate missing and abducted children.
  Mr. President, I say again: If we are going to have a national law, 
we need a reasonable national standard. This amendment is just such a 
standard. I urge my colleagues to support it.
  The PRESIDING OFFICER (Mr. Chafee). The Senator from Maryland.
  Mr. SARBANES. I will be quick because I know the chairman intends to 
move ahead with respect to this amendment. I will make some very basic 
points.
  Some of this discussion has been along the lines that under existing 
law this information is shielded and we are taking something away from 
people. The fact is, under existing law there are no limitations on the 
sharing of information with affiliates. That is the existing law.
  What the committee has sought to do is place the limitation on the 
sharing of information with affiliates for solicitation for marketing 
purposes, which is the biggest complaint we have heard flowing out of 
the sharing of information. That is what people have complained to us 
about. We are trying to provide that protection for the consumer.
  The California law and the amendment take a different approach. They, 
in effect, say you cannot share information with an affiliate or the 
consumer has to be given the opportunity to opt out. But the California 
law has some exceptions or exemptions from that requirement. The 
amendment that is pending has 17 such exemptions.
  To evaluate this--it is very complex; I agree with my colleague from 
California when she says this is a complex area; it is very complex--
but to evaluate these exemptions, you have to work through all of the 
exceptions and see where that leads as opposed to what is in the 
committee bill.
  Let me give an example. One exception is if a company is in the same 
line of business, a common brand, then the provisions of the amendment 
do not apply with respect to restricting and sharing of information. 
What the committee has reported out would, in fact, apply a limitation, 
an opt-out limitation in that instance for soliciting for marketing 
purposes.
  As I said earlier, that is generally what we have heard as being the 
source of people's concern and discontent. In that sense, what is in 
the bill is for that purpose broader than what is in the amendment.
  These extensive exceptions will involve a great deal of litigation. 
We do have a preexisting customer relationship exception, our 
provision, which we expect the regulators to define, to give it more 
content and more meaning.
  Second, the amendment has an exemption for a common database and the 
information that goes into a common database. In fact, it says a person 
does not disclose information or share information with an affiliate 
solely because information is maintained in a common information system 
or database and employees of the person and its affiliate have access 
to that common information system or database. That is another 
provision in the amendment, a major provision, which in fact restrains 
or restricts the consumer's ability to opt out.
  I could go on with this form of analysis, but I have probably given 
enough to underscore my thoughts. I appreciate the commitment of the 
two Senators from California, Mrs. Feinstein and Mrs. Boxer, on this 
issue. They have been champions and leaders on this issue. Many Members 
have been

[[Page 26918]]

with them on these matters and presumably will remain with them.
  But we are trying to craft a bill to deal with the FCRA. It is not 
comprehensive. We are dealing with that subject alone. What is in the 
bill from the committee is a significant improvement over existing law. 
I don't think there is any question about that. I think there is an 
arguable case that, in fact, it may provide more protection for the 
consumer than the amendment that is pending. Therefore, I am supportive 
of the chairman and his efforts with regard to this issue.
  The PRESIDING OFFICER. The Senator from Alabama.
  Mr. SHELBY. Mr. President, I now move to table the Feinstein-Boxer 
amendment and ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  The question is on agreeing to the motion to table amendment No. 
2054. The clerk will call the roll.
  The assistant legislative clerk called the roll.
  Mr. FRIST. I announce that the Senator from Kentucky (Mr. Bunning), 
the Senator from Kentucky (Mr. McConnell), and the Senator from Wyoming 
(Mr. Thomas) are necessarily absent.
  I further announce that, if present and voting, the Senator from 
Kentucky (Mr. Bunning) would vote ``yes.''
  Mr. REID. I announce that the Senator from North Carolina (Mr. 
Edwards), the Senator from Massachusetts (Mr. Kerry), and the Senator 
from Connecticut (Mr. Lieberman) are necessarily absent.
  I further announce that, if present and voting, the Senator from 
Massachusetts (Mr. Kerry) would vote ``nay.''
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 70, nays 24, as follows:

                      [Rollcall Vote No. 434 Leg.]

                                YEAS--70

     Akaka
     Alexander
     Allard
     Allen
     Baucus
     Bayh
     Bennett
     Biden
     Bingaman
     Bond
     Breaux
     Brownback
     Burns
     Campbell
     Carper
     Chafee
     Chambliss
     Cochran
     Coleman
     Collins
     Conrad
     Cornyn
     Craig
     Crapo
     Daschle
     DeWine
     Dodd
     Dole
     Domenici
     Dorgan
     Ensign
     Enzi
     Fitzgerald
     Frist
     Graham (SC)
     Grassley
     Gregg
     Hagel
     Hatch
     Hutchison
     Inhofe
     Inouye
     Johnson
     Kyl
     Landrieu
     Lincoln
     Lott
     Lugar
     McCain
     Miller
     Murkowski
     Nelson (NE)
     Nickles
     Pryor
     Reid
     Roberts
     Santorum
     Sarbanes
     Schumer
     Sessions
     Shelby
     Smith
     Snowe
     Specter
     Stabenow
     Stevens
     Sununu
     Talent
     Voinovich
     Warner

                                NAYS--24

     Boxer
     Byrd
     Cantwell
     Clinton
     Corzine
     Dayton
     Durbin
     Feingold
     Feinstein
     Graham (FL)
     Harkin
     Hollings
     Jeffords
     Kennedy
     Kohl
     Lautenberg
     Leahy
     Levin
     Mikulski
     Murray
     Nelson (FL)
     Reed
     Rockefeller
     Wyden

                             NOT VOTING--6

     Bunning
     Edwards
     Kerry
     Lieberman
     McConnell
     Thomas
  The motion was agreed to.
  Mr. SHELBY. Mr. President, I move to reconsider the vote.
  Mr. SARBANES. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.


                           Amendment No. 2059

  Ms. CANTWELL. I call up the Cantwell amendment and ask for its 
immediate consideration.
  The PRESIDING OFFICER. The clerk will report.
  The assistant legislative clerk read as follows:

       The Senator from Washington [Ms. Cantwell], for herself and 
     Mr. Enzi, proposes an amendment numbered 2059.

  Ms. CANTWELL. Mr. President, I ask unanimous consent that the reading 
of the amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment is as follows:

(Purpose: To provide for certain information to be provided to victims 
               of identity theft, and for other purposes)

       On page 22, line 6, strike the quotation marks and the 
     final period and insert the following:
       ``(e) Information Available to Victims.--
       ``(1) In general.--For the purpose of documenting 
     fraudulent transactions resulting from identity theft, not 
     later than 20 days after the date of receipt of a request 
     from a victim in accordance with paragraph (3), and subject 
     to verification of the identity of the victim and the claim 
     of identity theft in accordance with paragraph (2), a 
     business entity that has provided credit to, provided for 
     consideration products, goods, or services to, accepted 
     payment from, or otherwise entered into a commercial 
     transaction for consideration with, a person who has 
     allegedly made unauthorized use of the means of 
     identification of the victim, shall provide a copy of 
     application and business transaction records in the control 
     of the business entity, whether maintained by the business 
     entity or by another person on behalf of the business entity, 
     evidencing any transaction alleged to be a result of identity 
     theft to--
       ``(A) the victim;
       ``(B) any Federal, State, or local governing law 
     enforcement agency or officer specified by the victim in such 
     a request; or
       ``(C) any law enforcement agency investigating the identity 
     theft and authorized by the victim to take receipt of records 
     provided under this subsection.
       ``(2) Verification of identity and claim.--Before a 
     business entity provides any information under paragraph (1), 
     unless the business entity, at its discretion, is otherwise 
     able to verify the identity of the victim making a request 
     under paragraph (1), the victim shall provide to the business 
     entity--
       ``(A) as proof of positive identification of the victim, at 
     the election of the business entity--
       ``(i) the presentation of a government-issued 
     identification card;
       ``(ii) personally identifying information of the same type 
     as was provided to the business entity by the unauthorized 
     person; or
       ``(iii) personally identifying information that the 
     business entity typically requests from new applicants or for 
     new transactions, at the time of the victim's request for 
     information, including any documentation described in clauses 
     (i) and (ii); and
       ``(B) as proof of a claim of identity theft, at the 
     election of the business entity--
       ``(i) a copy of a police report evidencing the claim of the 
     victim of identity theft; and
       ``(ii) a properly completed--

       ``(I) copy of a standardized affidavit of identity theft 
     developed and made available by the Federal Trade Commission; 
     or
       ``(II) an affidavit of fact that is acceptable to the 
     business entity for that purpose.

       ``(3) Procedures.--The request of a victim under paragraph 
     (1) shall--
       ``(A) be in writing; and
       ``(B) be mailed to an address specified by the business 
     entity, if any.
       ``(4) No charge to victim.--Information required to be 
     provided under paragraph (1) shall be so provided without 
     charge.
       ``(5) Authority to decline to provide information.--A 
     business entity may decline to provide information under 
     paragraph (1) if, in the exercise of good faith, the business 
     entity determines that--
       ``(A) this subsection does not require disclosure of the 
     information;
       ``(B) the request for the information is based on a 
     misrepresentation of fact by the individual requesting the 
     information relevant to the request for information; or
       ``(C) the information requested is Internet navigational 
     data or similar information about a person's visit to a 
     website or online service.
       ``(6) Limitation on liability.--Except as provided in 
     section 621, sections 616 and 617 do not apply to any 
     violation of this subsection.
       ``(7) No new recordkeeping obligation.--Nothing in this 
     subsection creates an obligation on the part of a business 
     entity to obtain, retain, or maintain information or records 
     that are not otherwise required to be obtained, retained, or 
     maintained in the ordinary course of its business or under 
     other applicable law.
       ``(8) Rule of construction.--
       ``(A) In general.--No provision of Federal or State law 
     (except a law involving the nondisclosure of information 
     related to a pending Federal criminal investigation) 
     prohibiting the disclosure of financial information by a 
     business entity to third parties shall be used to deny 
     disclosure of information to the victim under this 
     subsection.
       ``(B) Limitation.--Except as provided in subparagraph (A), 
     nothing in this subsection permits a business entity to 
     disclose information, including information to law 
     enforcement under subparagraphs (B) and (C) of paragraph (1), 
     that the business entity is otherwise prohibited from 
     disclosing under any other applicable provision of Federal or 
     State law.
       ``(9) Affirmative defense.--In any civil action brought to 
     enforce this subsection, it is an affirmative defense (which 
     the defendant must establish by a preponderance of the 
     evidence) for a business entity to file an affidavit or 
     answer stating that--
       ``(A) the business entity has made a reasonably diligent 
     search of its available business records; and
       ``(B) the records requested under this subsection do not 
     exist or are not available.

[[Page 26919]]

       ``(10) Definition of victim.--For purposes of this 
     subsection, the term `victim' means a consumer whose means of 
     identification or financial information has been used or 
     transferred (or has been alleged to have been used or 
     transferred) without the authority of that consumer, with the 
     intent to commit, or to aid or abet, identity theft or any 
     other violation of law.''.
       On page 33, line 6, strike ``7'' and insert ``5''.
       On page 41, line 19, strike ``(e)'' and insert ``(f)''.
       On page 47, line 1, strike ``(e)'' and insert ``(f)''.

  Ms. CANTWELL. Mr. President, this amendment is one more addition to 
the great underlying Fair Credit Reporting Act that would establish a 
process where business records can be accessed by consumers whose 
identities have been stolen. I urge my colleagues to support this 
amendment.
  Mr. ENZI. Mr. President, I thank Senator Shelby and Senator Sarbanes 
for their work. They have put in a lot of time working through 
different changes in this to make it not only more acceptable but more 
useful. We appreciate that.
  I also want to give special mention to Senator Cantwell, the Senator 
from Washington, for her perseverance, for her tenaciousness, for her 
innovation, and for her flexibility. She did a marvelous job of working 
on this bill. It is extremely important to the Nation.
  This is an extremely critical part of fair credit.
  In today's world of digital transactions and online living, nobody is 
safe from the fastest growing crime in America known as identity theft. 
Last year alone, the Federal Trade Commission estimated that nearly 10 
million Americans were victims of this crime, and each paid an average 
of $500 in order to repair the damage done by fraudsters and credit 
abusers. To these millions of American families, $500 means mortgages, 
car payments, student loans, child support, groceries. In the larger 
context, $500 per victim means American families and businesses lost 
more than $50 billion in recovery costs in 2003 alone. That is a $50 
billion drag on our economy--an economy that is just starting to bounce 
back. With the number of identity theft cases increasing at an alarming 
rate, the economic costs will be even higher next year.
  As such, I rise today in support of an amendment that will make it 
easier for victims of identity theft to recover both economically and 
emotionally from this devastating crime. This amendment is based on a 
bill my colleague from Washington and I introduced in both 2002 and 
2003. Even though the bill passed unanimously last Congress, we have 
made a number of changes that I believe greatly improve the 
legislation. I firmly believe this amendment will provide consumers 
with the right information and businesses with the right safeguards to 
facilitate quick and cost effective recovery from identity theft.
  This amendment will allow victims to work with businesses to obtain 
information related to cases of identity theft so they can start 
reversing the lasting and damaging effects of this crime. In drafting 
this legislation we have worked with all of the stakeholders to ensure 
that the needs of both consumers and the needs of small businesses, 
banks and other credit agencies were addressed.
  Our amendment provides consumers with the right to ask businesses for 
records relating to a transaction evidencing identity theft. 
Businesses, in return, have the right to ask for specific kinds of 
identity verification and clear proof that the individual asking for 
the information is, in fact, a victim and not another fraudster. Also 
important to note, our amendment does not require businesses, to keep 
new records or seek out information not in their control. It simply 
requires businesses to share current records with consumers who can 
prove they have been victims of identity theft.
  I am confident that we have drafted careful legislation that will 
truly help victims of identity theft recover from this terrible and 
expensive crime. I commend my colleagues on the Banking Committee who 
have worked closely with us to make the numerous improvements to this 
amendment. I urge my colleagues to support it.
  In summary, the Federal Trade Commission estimated that nearly 10 
million Americans were victims of identification crime and that each 
paid an average of $500 in order to repair the damage done by the 
fraudsters and credit abusers. That is $50 billion that is taken out of 
our economy each year.
  This amendment is based on a bill my colleague from Washington and I 
introduced in 2002 and in 2003. Even though the bill passed unanimously 
the last time, we have made a number of changes that I believe greatly 
improve the legislation.
  I firmly believe this amendment will provide consumers with the right 
information and businesses with the right safeguards to facilitate 
quick and cost-effective recovery from identity theft.
  This amendment allows the victims to work with businesses to obtain 
information related to cases of identity theft so they can start 
reversing the damaging effect of the crime.
  In drafting this legislation, we worked with all of the stakeholders. 
Our amendment provides consumers with the right to ask businesses for 
records relating to the transaction. Businesses, in return, have the 
right to ask for specific kinds of identity verification and clear 
proof that the individual asking for the information is in fact the 
victim and not another fraudster.
  It is also important to note our amendment does not require 
businesses to keep records or seek out information not in their 
control. It simply requires businesses to share current records with 
consumers who can prove they have been victims of identity theft. I 
think this will help consumers in a tremendous way.
  I appreciate the work Senator Cantwell has put in on this amendment. 
This $50 billion drag on the economy can be solved and will be 
appreciated by consumers.
  I thank my colleagues for supporting it and Senators Sarbanes and 
Shelby for statements on the bill.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Alabama.
  Mr. SHELBY. Mr. President, the managers are prepared to accept this 
amendment. I commend Senator Cantwell and also Senator Enzi for the 
work they have done in this regard.
  The PRESIDING OFFICER. The Senator from Maryland.
  Mr. SARBANES. Mr. President, we are happy to take this amendment. I 
wish to echo the chairman in thanking Senator Cantwell and Senator Enzi 
for their work on this important issue. This is an issue they have been 
addressing for quite some time, and we are very pleased that there are 
important identity provisions as the bill came from the committee, and 
I think this is a positive addition.
  Mr. SHELBY. I urge adoption of the amendment.
  The PRESIDING OFFICER. Is there further debate?
  If not, the question is on agreeing to amendment No. 2059.
  The amendment (No. 2059) was agreed to.
  Mr. SHELBY. Mr. President, I move to reconsider the vote.
  Mr. REID. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.


                           Amendment No. 2060

  Mrs. BOXER. I send an amendment to the desk and ask for its immediate 
consideration. I am very pleased to say both Senator Sarbanes and 
Senator Shelby have signed off on this amendment.
  The PRESIDING OFFICER. The clerk will report.
  The assistant legislative clerk read as follows:

       The Senator from California [Mrs. Boxer], for herself and 
     Mrs. Feinstein, proposes an amendment numbered 2060.

  Mrs. BOXER. Mr. President, I ask unanimous consent that the reading 
of the amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment is as follows:

(Purpose: To address the duration of certain consumer elections and to 
        define the term ``pre-existing business relationship'')

       On page 50, strike line 12 and all that follows through 
     page 51, line 3 and insert the following:

[[Page 26920]]

       ``(3) Duration.--The election of a consumer pursuant to 
     paragraph (1)(B) to prohibit the sending of solicitations 
     shall be effective permanently, beginning on the date on 
     which the person receives the election of the consumer, 
     unless the consumer requests that such election be revoked.
       ``(4) Definition.--For purposes of this section, the term 
     `pre-existing business relationship' means a relationship 
     between a person and a consumer, based on--
       ``(A) the purchase, rental, or lease by the consumer of 
     that person's goods or services, or a financial transaction 
     between the consumer and that person during the 18-month 
     period immediately preceding the date on which the consumer 
     receives the notice required under this section; or
       ``(B) an inquiry or application by the consumer regarding a 
     product or service offered by that person, during the 3-month 
     period immediately preceding the date on which the consumer 
     receives the notice required under this section.
       ``(5) Scope.--This section shall not apply to a''.

  Mrs. BOXER. I ask unanimous consent that Senator Feinstein be added 
as a cosponsor.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mrs. BOXER. Very briefly, this amendment closes what I consider to be 
a little bit of a loophole in the marketing opt-out provision of the 
bill. We do two things. The underlying bill says the marketing opt-out 
expires after 5 years, unless a consumer opts out again. We make the 
first opt-out permanent as long as the consumer wants it.
  Secondly, the definition of a preexisting relationship with a 
company, with an affiliate, is drawn in such a way, it is very broad. 
So what we say is, a person will be deemed to have this preexisting 
relationship with the affiliate if they have purchased, rented, or 
leased a service or good from the affiliate during the 18-month period 
before the information sharing takes place or they have inquired about 
an affiliate's product in the 3 months before the sharing takes place.
  By adopting this simple amendment, we keep financial institutions 
from violating consumer rights. I am very pleased that both sides of 
the committee have signed off on this, and I would be happy to take a 
voice vote on this at this time.
  The PRESIDING OFFICER. The Senator from Alabama.
  Mr. SHELBY. Mr. President, the managers are prepared to accept this 
amendment.
  The PRESIDING OFFICER. The Senator from Maryland.
  Mr. SARBANES. Mr. President, I actually wish to commend the Senator 
from California because she has introduced some specificity into a 
provision that is in the committee-reported bill. I am very frank to 
say I think this will be very helpful, and I join the chairman in 
supporting the amendment.
  Mr. SHELBY. I urge the adoption of the amendment.
  The PRESIDING OFFICER. The question is on agreeing to amendment No. 
2060.
  The amendment (No. 2060) was agreed to.
  Mr. SHELBY. Mr. President, I move to reconsider the vote.
  Mr. SARBANES. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.


                           Amendment No. 2061

  Mrs. FEINSTEIN. Mr. President, I send an amendment to the desk on 
behalf myself, Senator Boxer, and Senator Kennedy.
  The PRESIDING OFFICER. The clerk will report.
  The assistant legislative clerk read as follows:

       The Senator from California [Mrs. Feinstein], for herself, 
     Mrs. Boxer, and Mr. Kennedy, proposes an amendment numbered 
     2061.

  Mrs. FEINSTEIN. Mr. President, I ask unanimous consent that the 
reading of the amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment is as follows:

(Purpose: To address restrictions on the sharing of medical information 
               among affiliates, and for other purposes)

       On page 81, strike lines 6 through 15 and insert the 
     following: ``to any person related by common ownership or 
     affiliated by corporate control, if the information is 
     medical information, including information that is an 
     individualized list or description based on the payment 
     transactions of the consumer for medical products or 
     services, or an aggregate list of identified consumers based 
     on payment transactions for medical products or services.''.
       (c) Definition.--Section 603(i) of the Fair Credit 
     Reporting Act (15 U.S.C. 1681a(i)) is amended to read as 
     follows:
       ``(i) Medical Information.--The term `medical information' 
     means information or data, other than age or gender, whether 
     oral or recorded, in any form or medium, created by or 
     derived from a health care provider or the consumer, that 
     relates to--
       ``(1) the past, present, or future physical, mental, or 
     behavioral health or condition of an individual;
       ``(2) the provision of health care to an individual; or
       ``(3) the payment for the provision of health care to an 
     individual.''.

  Mrs. FEINSTEIN. Mr. President, this amendment essentially updates the 
definition of ``medical information.'' It takes a medical definition 
submitted by the National Association of Insurance Commissioners. It is 
the definition that is used by a majority of our States. I ask 
unanimous consent that a letter in support of this definition from the 
American Medical Association, the American Cancer Society, the 
California Medical Association, the Community Clinic Consortium, the 
San Francisco AIDS Foundation, and the AIDS Health Care Foundation be 
printed in the Record.
   There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                 American Medical Association,

                                    Chicago, IL, November 3, 2002.
     Hon. Dianne Feinstein,
     U.S. Senate,
     Washington, DC.
       Dear Senator Feinstein: On behalf of the American Medical 
     Association (AMA), we applaud you for your amendment that 
     would improve the medical privacy protections in the National 
     Consumer Credit Reporting System Improvement Act of 2003 (S. 
     1753).
       Your amendment would strengthen the protections in S. 1753 
     restricting the sharing of medical information for 
     employment, credit or insurance purposes, by broadening the 
     definition of ``medical information'' to ensure that it 
     covers all patient information held by physicians and other 
     health care providers, including mental and behavioral health 
     information.
       Thank you for your efforts to protect sensitive patient 
     information in this important legislation.
           Sincerely,
                                        Michael D. Maves, MD, MBA.


                                      American Cancer Society,

                                 Washington, DC, October 30, 2003.
     Hon. Dianne Feinstein,
     U.S. Senate,
     Washington, DC.
       Dear Senator Feinstein: On behalf of the American Cancer 
     Society and its millions of volunteers and supporters, we 
     applaud your efforts to protect patient medical information 
     from improper use or disclosure by employers, insurers or 
     creditors.
       Many cancer patients and their families are concerned about 
     the privacy of information relating to their medical care, 
     especially with the increasing use of electronic payments and 
     data keeping. As a result, the American Cancer Society 
     supports a definition of medical information that allows 
     medical research to advance, while at the same time, protects 
     the rights and needs of patients and their family members.
            Sincerely,
      Daniel E. Smith,
        National Vice President, Federal and State Government 
     Relations.
      Wendy K. D. Selig,
         Vice-President, Legislative Affairs.
                                  ____



                               California Medical Association,

                                 Sacramento, CA, October 31, 2003.
     Hon. Dianne Feinstein,
     U.S. Senate,
     Washington, DC.
       Dear Senator Feinstein: On behalf of the California Medical 
     Association and its 35,000 member physicians, we support your 
     efforts to protect patient medical information from improper 
     use or disclosure by employers, insurers or creditors.
       Many patients and their families are concerned about the 
     privacy information relating to medical care, especially with 
     the increasing use of electronic payments and data keeping. 
     We support a tight definition of medical information of when 
     such information could be used. Your language accomplishes 
     this while at the same time allowing appropriate utilization 
     for research purposes.
       Please let us know if we can do more to support your 
     efforts.
           Sincerely,
                                               Steven M. Thompson,
                             Vice President, Government Relations.

[[Page 26921]]

     
                                  ____
                                       San Francisco Community

                                            Clinic Consortium,

                              San Francisco, CA, October 31, 2003.
     Re The San Francisco Community Clinic Consortium Supports S. 
         1753, the Medical Information Privacy Amendment to the 
         Fair Credit Reporting Act (FCRA).

     Hon. Dianne Feinstein,
     Hart Senate Office Building,
     Washington, DC.
       Dear Senator Feinstein: The San Francisco Community Clinic 
     Consortium--an organization of neighborhood health centers 
     serving 66,000 low-income and uninsured San Franciscans--
     strongly supports the passage of S. 1753, the Medical 
     Information Privacy Amendment to FCRA.
       The vague definition of ``medical information'' in FCRA 
     creates loopholes in FCRA protection that could prove harmful 
     to people like our clinic clients with stigmatized diseases 
     like mental illness, HIV/AIDS and long-term chronic 
     conditions. S. 1753 corrects the potential problems and 
     provides the more complete protections that people deserve.
       S. 1753 would clarify and strengthen FCRA's definition of 
     medical information. It would also eliminate the false 
     distinction between medical information and medical 
     transaction information. This new definition is critical to 
     protecting the privacy of individuals with chronic illnesses. 
     Even the possibility of breaches of patient medical record 
     confidentiality undermines health care. Patients who know 
     their medical care information could and would be shared with 
     employers, credit organizations and insurance companies will 
     be less forthcoming with their health care providers and, 
     thus, the quality of health care they receive will be 
     compromised; this is neither necessary nor desirable.
       SFCCC looks forward to continuing to work with you to 
     protect the essential privacy of individuals' medical and 
     health status information; this is a cornerstone of effective 
     health care. Please call (415 345-4233) if you need 
     additional information or assistance on this matter.
           Sincerely,
                                                    John Gressman,
     President/CEO.
                                  ____



                                San Francisco AIDS Foundation,

                              San Francisco, CA, October 29, 2003.
     Hon. Dianne Feinstein,
     Hart Senate Office Building,
     Washington, DC.
       Dear Senator Feinstein: The San Francisco AIDS Foundation 
     strongly supports the passage of S. 1753, the Medical 
     Information Privacy Amendment to the Fair Credit Reporting 
     Act (FCRA). While the FCRA attempts to protect consumers from 
     having their medical information used for employment, credit 
     or insurance purposes, the vague definition of ``medical 
     information'' in FCRA creates loopholes in the protection 
     that would prove harmful to people living with HIV/AIDS, 
     mental illness and other stigmatized diseases. S. 1753 
     rectifies the problems in the underlying legislation and 
     provides the protections these consumers require and deserve.
       The current definition of medical information in FCRA does 
     not protect the information consumers would supply on 
     documents such as life insurance applications, which ask what 
     medications a consumer is taking. Nor does FCRA protect 
     information obtained without consent. A specific example of 
     this is the reporting of unpaid medical bills from HIV 
     clinics. FCRA does not protect consumers from banks data 
     mining its customers' medical payment transactions to make 
     credit decisions. The majority of U.S. bankruptcies are due 
     to health care costs, which give banks an incentive to 
     determine a customer's creditworthiness based on health. The 
     ties between insurance companies and banks are continuously 
     strengthened as large banks often have hundreds of 
     affiliates, many of whom are also insurance companies. As 
     insurance companies move to electronic forms of payments, 
     they are giving banks large amounts of medical transaction 
     data about their clients. This may include the type of clinic 
     and specific service delivered.
       S. 1753 would clarify and strengthen FCRA's definition of 
     medical information and eliminate the false distinction 
     between medical information and medical transaction 
     information. This new definition is essential for people 
     living with HIV/AIDS because it provides them with financial 
     privacy. After more than 20 years of dealing with the 
     epidemic, there is still significant cultural stigma attached 
     to HIV disease. Potential disclosure of medical information 
     and breaches in financial privacy create additional health 
     care access barriers. It is therefore essential that the 
     confidentiality of ones health status and medical information 
     be protected from inappropriate use in employment, credit or 
     insurance purposes.
       The AIDS Foundation looks forward to working with you to 
     promote medical information privacy and health status 
     confidentiality. Please do not hesitate to call at 415-487-
     3096.
           Sincerely,
                                                   Ernest Hopkins,
     Director of Federal Affairs.
                                  ____



                                   AIDS Healthcare Foundation,

                                Los Angeles, CA, November 3, 2003.
     Re Letter of support for privacy amendment to S. 1753.

     Hon. Dianne Feinstein,
     Hart Senate Office Building,
     Washington, DC.
       Dear Senator Feinstein:
       AIDS Healthcare Foundation (AHF) would like to thank you 
     for sponsoring a legislative amendment to the Fair Credit 
     Reporting Act that will protect the privacy of personal 
     medical information in the form of payments for medical 
     services and products and other transactions. As the United 
     States' largest AIDs organization, and provider of medical 
     care to over 12,000 persons in the U.S., AHF is acutely aware 
     of the need to protect consumers from unauthorized use of 
     data pertaining to their medical treatment. Such information 
     is clearly private, and it is highly inappropriate for it to 
     be used for marketing or similar purposes. Such an abuse can 
     only erode the trust patients have in their medical providers 
     and the medical system in general. Thank you, again, for 
     sponsoring this amendment, which AHF is happy to support.
           Sincerely,

                                                  Clint Trout,

                                    Associate Director, Government
     Affairs-Federal.
                                  ____



                                Congress of the United States,

                                 Washington, DC, October 30, 2003.
     Hon. Dianne Feinstein,
     Hart Senate Office Building, U.S. Senate,
     Washington, DC.
       Dear Senator Feinstein: We applaud you for your efforts to 
     strengthen and improve the medical privacy protections 
     containd in your amendment to expand the definition of 
     ``medical information'' under The National Consumer Credit 
     Reporting System Improvement Act of 2003 (S. 1753).
       Although the original bill's medical privacy section 
     includes significant new consumer protections that black-out 
     the use of medical information for employment, credit, or 
     insurance purposes, it includes an inadequate definition of 
     the term ``medical information,'' which could result in 
     creating a loophole that weakens the bill's intended 
     objective. By describing ``medical information'' using the 
     National Association of Insurance Commissioner's (NAIC) 
     definition, which has been agreed upon and implemented by 
     insurance regulators in a vast majority of states, your 
     amendment closes existing loopholes and eliminates the 
     opportunity for unscrupulous use of sensitive medical 
     information.
       We also support your amendment because it eliminates the 
     inconsistent differentiation between medical information and 
     medical transaction information, providing greater certainty 
     to the bill's language and to future interpretations of 
     legislative intent. This would be a marked improvement to the 
     underlying bill's definition of medical information, which as 
     currently written does not protect mental or behavioral 
     health information, data provided by consumers on life 
     insurance applications, or medical information obtained 
     without consent, such as the reporting of an unpaid bill from 
     a cancer center. We believe the effect of these harmful 
     oversights can be negated by passage of your amendment.
       As you know, millions of consumers worry that their health 
     providers or insurers may be sharing their private 
     information with others. Beyond this concern, however, is a 
     feeling that they have less and less control over their 
     sensitive medical files. Medical information should have no 
     place in employment decisions or credit determinations and 
     related corporate entities should not be able to share it--
     this information deserves the strongest protection under the 
     law, but beyond that, it is important that we give consumers 
     back some control over who can and cannot use this 
     information.
       Both the National Consumer Credit Reporting System 
     Improvement Act and the Fair and Accurate Credit Transactions 
     Act, recently passed by the House of Representatives, contain 
     landmark provisions protecting consumers' private medical 
     information. This amendment builds upon these strides by 
     correcting important deficiencies in the Senate bill, and we 
     strongly urge its adoption by the Senate and its inclusion in 
     the legislation that emerges from the Conference Committee. 
     Again, we congratulate you on your thoughtful and bipartisan 
     amendment, and wish you success in its passage on the Senate 
     floor later this week.
           Sincerely,
     Rahm Emanuel,
       Member of Congress.
     Walter B. Jones,
       Member of Congress.

  Mrs. FEINSTEIN. I believe both sides will accept the definition, and 
I would be happy to take a voice vote.
  The PRESIDING OFFICER. Is there further debate?
  The Senator from Alabama.
  Mr. SHELBY. The managers are prepared to accept this amendment.
  The PRESIDING OFFICER. The Senator from Maryland.
  Mr. SARBANES. I join with my colleague in accepting the amendment. I 
commend the Senator from California.

[[Page 26922]]

Actually, medical information is something that people feel very keenly 
about and the Senator's amendment will strengthen the provision that 
was in the bill adopted in the committee. We thank her very much for 
the amendment.
  Mr. SHELBY. I urge the adoption of the amendment.
  The PRESIDING OFFICER. The question is on agreeing to amendment No. 
2061.
  The amendment (No. 2061) was agreed to.
  Mr. SHELBY. Mr. President, I move to reconsider the vote.
  Mr. SARBANES. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.


                           Amendment No. 2062

  Mr. DURBIN. I send an amendment to the desk.
  The PRESIDING OFFICER. The clerk will report.
  The assistant legislative clerk read as follow:

       The Senator from Illinois [Mr. Durbin] proposes an 
     amendment numbered 2062.

  Mr. DURBIN. Mr. President, I ask unanimous consent that the reading 
of the amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment is as follows:

(Purpose: To require reporting to national consumer reporting agencies 
  regarding Federal student loans in order to promote the responsible 
  repayment of such loans and ensure the completeness of information 
            contained in consumer credit reports and scores)

       At the end of section 312, insert the following:
       (c) Reports to Consumer Reporting Agencies.--
       (1) Reports.--Section 430A(a) of the Higher Education Act 
     of 1965 (20 U.S.C. 1080a(a)) is amended to read as follows:
       ``(a) Agreements to Exchange Information.--
       ``(1) In general.--For the purpose of promoting responsible 
     repayment of loans covered by Federal loan insurance pursuant 
     to this title or covered by a guaranty agreement pursuant to 
     section 428, the Secretary, each guaranty agency, eligible 
     lender, and subsequent holder shall enter into an agreement 
     with each national consumer reporting agency as described in 
     section 603(p) of the Fair Credit Reporting Act (15 U.S.C. 
     1681a(p)) to exchange such information as is required by the 
     Secretary concerning each borrower of a loan made, insured, 
     or guaranteed under this title who is served by the 
     Secretary, agency, lender, or holder, respectively, 
     regardless of the default status of the borrower. Such 
     information shall be reported to the agencies regularly, 
     shall be identified as pertaining to such a loan, and shall 
     include any positive or negative repayment information 
     relevant to the borrower.
       ``(2) Objections raised by borrowers.--For the purpose of 
     assisting the reporting agencies in complying with the Fair 
     Credit Reporting Act, such agreements may provide for timely 
     response by the Secretary (concerning loans covered by 
     Federal loan insurance), by a guaranty agency, eligible 
     lender, or subsequent holder (concerning loans covered by a 
     guaranty agreement), or to requests from the reporting 
     agencies, for responses to objections raised by borrowers.
       ``(3) Nonpayment.--Subject to the requirements of 
     subsection (c), such agreements shall require the Secretary, 
     the guaranty agency, eligible lender, or subsequent holder, 
     as appropriate, to disclose to the reporting agencies, with 
     respect to any loan under this part that has not been repaid 
     by the borrower--
       ``(A) the total amount of loans made to any borrower under 
     this part and the remaining balance of the loans;
       ``(B) information concerning the date of any default on the 
     loan and the collection of the loan, including information 
     concerning the repayment status of any defaulted loan on 
     which the Secretary has made a payment pursuant to section 
     430(a) or the guaranty agency has made a payment to the 
     previous holder of the loan; and
       ``(C) the date of cancellation of the note upon completion 
     of repayment by the borrower of the loan or payment by the 
     Secretary pursuant to section 437.''.
       (2) Technical and Conforming Amendments.--The Higher 
     Education Act of 1965 (20 U.S.C. 1001 et seq.) is amended--
       (A) in section 427(a)(2)(G)(i) (20 U.S.C. 
     1077(a)(2)(G)(i)), by striking ``credit bureau 
     organizations'' and inserting ``reporting agencies'';
       (B) in section 428C(b)(4)(E)(i) (20 U.S.C. 1078-
     3(b)(4)(E)(i)), by striking ``credit bureau organizations'' 
     and inserting ``reporting agencies''; and
       (C) in section 430A (20 U.S.C. 1080a)--
       (i) in subsection (b)--

       (I) by striking ``such organizations'' and inserting ``the 
     reporting agencies''; and
       (II) by striking ``(a)(2)'' and inserting ``(a)(3)(B)'';

       (ii) in subsection (c)(2), by striking ``such 
     organizations'' and inserting ``the reporting agencies'';
       (iii) in subsection (b)(4)--

       (I) by striking ``(a)(2)'' and inserting ``(a)(3)(B)''; and
       (II) by striking ``credit bureau organizations'' and 
     inserting ``the reporting agencies'';

       (iv) in subsection (d), by striking ``credit bureau 
     organization'' and inserting ``reporting agency''; and
       (v) in subsection (f), by striking ``consumer reporting 
     agency'' each place the term appears and inserting 
     ``reporting agency''.

  Mr. DURBIN. Mr. President, I announced my intention to offer this 
amendment at an earlier date. Since the announcement of that intention, 
we have been negotiating with Sallie Mae, the Government-sponsored 
enterprise which is the largest provider of student loans in the 
country. The reason for this amendment was a new policy of Sallie Mae, 
as of a few months ago. In fact, about a year ago Sallie Mae decided to 
stop reporting repayment information to two of the three major credit 
bureaus in the United States. It turns out that the Higher Education 
Act, which governs Sallie Mae, required that defaults on student loans 
be reported to all three national credit bureaus but, by regulation, 
positive repayment information only went to one.
  As a consequence, many responsible students who had paid off their 
student loans were not provided the credit information on their own 
backgrounds so that it was clear that they paid off their loans. So 
these students who had turned to a credit bureau for a mortgage or a 
loan on a car would have an outstanding student loan. It worked to 
their disadvantage. This decision by Sallie Mae worked a terrible 
disadvantage to students who had done the right thing.
  I made it clear to the chairman, Mr. Shelby, as well as Senator 
Sarbanes, that I thought this was an injustice that needed to be 
corrected. Fortunately for me and for the students involved, Sallie Mae 
has sent a letter. I understand Chairman Shelby, if I am not mistaken, 
has received a copy of this letter from Sallie Mae; is that correct?
  Mr. SHELBY. If the Senator will yield, we do have a copy of the 
letter from Sallie Mae.
  Mr. DURBIN. I ask unanimous consent this letter be printed in the 
Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                             Sallie Mae, Inc.,

                                 Washington, DC, November 4, 2003.
     Hon. Richard C. Shelby,
     U.S. Senate, Committee on Banking, Housing and Urban Affairs, 
         Washington, DC.
     Hon. Paul S. Sarbanes,
     U.S. Senate, Committee on Banking, Housing and Urban Affairs, 
         Washington, DC.
       Dear Senators Shelby and Sarbanes: I am writing to update 
     you on how Sallie Mae reports the credit performances of our 
     customers to the national credit bureaus.
       Our goal is to ensure that our customers get the credit 
     they have earned. To that end, we have been reporting to one 
     of the national credit bureaus all along, as required by law. 
     When we learned recently that one of our borrowers has not 
     had full access to his credit history, we began negotiating 
     again with the other two credit bureaus so that we could 
     resume reporting to them.
       I am pleased to let you know that following extensive 
     discussions with the other two credit bureaus, Sallie Mae has 
     agreed to resume reporting to them and will provide each with 
     credit information for our customers. We will keep you and 
     your staffs apprised as we move forward in implementing this 
     decision.
       We are pleased that the credit bureaus are being responsive 
     to our concerns and we look forward to working with them. 
     Thank you for your interest in this important issue. Please 
     feel free to contact me if you have questions or need 
     additional information.
           Sincerely,

                                                Rose DiNapoli,

                             Vice President, Government & Industry
                                            Relations, Sallie Mae.

  Mr. DURBIN. The letter makes it clear that Sallie Mae is reversing 
its position; that from this point forward they will report repayment 
of student loans to all three major credit bureaus. This is what my 
amendment sought to achieve, so I am going to withdraw this amendment 
and thank both Senator Shelby and Senator Sarbanes for their 
cooperation and urge them to

[[Page 26923]]

join me in offering an amendment to the Higher Education Act which 
codifies in law this new policy that the Sallie Mae agency has now 
decided to implement.
  There is no reason responsible college students, having paid off 
their loans, should be penalized because Sallie Mae refuses to notify 
all three major credit bureaus in America. I am glad with this letter 
they have decided to change their policy. I hope at a later time to 
offer this amendment to the Higher Education Act and thank the members 
of the committee for their cooperation in this regard.
  Mr. DURBIN. Mr. President, Section 312 of the bill before us is 
entitled ``Procedures to enhance the accuracy and completeness of 
information furnished to consumer reporting agencies.'' My Responsible 
Student Amendment addresses exactly that: the completeness of 
information furnished to consumer reporting agencies. My amendment is 
designed to ensure that young Americans who have positive credit 
histories established by responsibly repaying their student loans will 
be able to take a clean shot at the American dream when they try to buy 
their first home. It does so simply by requiring what until recently 
was standard practice for student loan providers; regular reporting on 
all loan repayments to each of the three major credit bureaus.
  Until recently, responsible repayment of student loans was rewarded 
as would be expected, with a positive credit history. Responsible 
repayment was responsibly reported by student loan providers, in the 
typical fashion, to all three major credit bureaus. One of those 
providers, the biggest, is Sallie Mae. Sallie Mae was founded in 1972 
as a government-sponsored enterprise, GSE. In 1997, the company 
initiated the privatization process. Sallie Mae, in other words, was 
born and raised on the taxpayers dime. One might hope that it would 
therefore feel some responsibility to keep taxpayers' interest in mind.
  About a year ago, however, Sallie Mae, by far the largest provider of 
Federally guaranteed student loans, suddenly stopped reporting 
repayment information to two of the three major credit bureaus. It 
turns out that The Higher Education Act, which established the Federal 
student loan program, requires that defaults on student loans be 
reported to all three national credit bureaus, while positive repayment 
information only has to go to one. Is this the way we want to reward 
responsible repayment of student loans? Don't we want a system that 
rewards responsible repayment, rather than one that shrugs and says 
that that information doesn't matter?
  What is the result of Sallie Mae not reporting to two of the three 
major credit bureaus? Thousands of young people--whose main or only use 
of credit has been their student loans from Sallie Mae--suddenly have 
major gaps in their credit histories. Stories in the Washington Post 
and the American Banker have described the case of one typical 31 year 
old, named Eric Borgeson. Mr. Borgeson is an architect who lives in 
Edwards, CO. Mr. Borgeson, who graduated from college 10 years ago, had 
a perfect credit repayment record on his three Sallie Mae loans. Then, 
midway through the home-buying process, his credit score dropped by 40 
points. Sallie Mae had pulled his perfect repayment records from his 
credit reports with two of the three major credit bureaus. As a result, 
he ended up with a lower credit score and a significantly higher 
interest rate on his mortgage, that he estimates will cost him nearly 
$200 more per month in interest payments.
  Why has Sallie Mae stopped reporting to two of the three major credit 
bureaus? The answer is simple: pre-screened lists. Credit bureaus 
typically sell lists of their customers, pre-screened to meet certain 
criteria based on the information in their credit reports. Sallie Mae's 
competitors were using such lists to offer Sallie Mae's customers 
better deals. Rather than meet the competition, Sallie Mae simply 
decided to pull its customers' information from bureaus that wouldn't 
agree to stop selling pre-screened lists.
  Sallie Mae claims that it is simply protecting its customers from 
unwanted solicitations. Sallie Mae knows, however, that there is a toll 
free phone number people can call to keep their name off of such pre-
screened lists. If it really was concerned about protecting its 
customers from unwanted credit card solicitations, it could simply 
publicize that number: 888-567-8688.
  The group of consumers in question here is a unique group of 
consumers. Just starting their careers, still paying off their loans: 
if there is any group of consumers that benefits from competition among 
loan providers and consolidators, this group is it. This is a group 
that often wants to hear from Sallie Mae's competitors. Those still 
repaying their student loans may get offers from consolidators who will 
combine all their loans and charge a lower overall interest rate. Those 
who have finished repaying their student loans are often establishing 
homes, careers, and families and therefore using credit cards more than 
average users. They, therefore, may benefit from being able to compare 
the credit card package they have with the offerings of competitors.
  By trying to shield its customers from competing offers, Sallie Mae 
does them a disservice twice: it punches a big hole in their credit 
histories, resulting in higher rates on mortgages and other new loans, 
and it prevents them from learning of better deals for other financial 
services. Each of these alone could cost consumers thousands of 
dollars.
  My amendment prevents that from happening. It amends the Higher 
Education Act by adding the word ``each,'' requiring reporting to each 
of the major ``consumer reporting agencies''--credit bureaus--and 
making clear that both positive and negative information should be 
accurately reported.
  Responsible repayment of student loans should be rewarded by 
inclusion in accurate and complete credit histories. This amendment 
will ensure that result.


                      Amendment No. 2062 Withdrawn

  I need no further time. I ask unanimous consent to withdraw my 
amendment.
  The PRESIDING OFFICER. Is there objection? Without objection, the 
amendment is withdrawn.
  Mr. SARBANES. Mr. President, I commend the able Senator from Illinois 
because he saw a problem and fastened on it and as a consequence, we at 
least have a solution, at least at the regulatory level. I understand 
the Senator may well pursue it statutorily, although Sallie Mae is not 
under the jurisdiction of our committee, as he understands.
  I share his concern. I think this was an unacceptable situation which 
existed. Because of the actions of the Senator from Illinois and also 
the Senator from Wisconsin, Mr. Kohl--who also took a keen interest in 
this issue--I think we have the resolution of it. I appreciate the 
Senator's action.
  The PRESIDING OFFICER. The Senator from Alabama.
  Mr. SHELBY. I take a minute to commend Mr. Durbin, the Senator from 
Illinois, for his good work in this area. He has recognized this as a 
very important issue and has done something about it. Whether it is 
Sallie Mae or anybody else, what we are interested in is all the 
reporting we can get that would affect someone's credit. I again 
commend Senator Durbin for the work he has done. I am sure he will 
follow up and make sure this is part of the law.
  Mr. DURBIN. Mr. President, I thank my colleagues. My colleague, 
Senator Herb Kohl, shares my feeling on this issue and introduced a 
similar amendment and joins with me in saluting this change and making 
it clear we are going to move forward.
  Mr. KOHL. Mr. President, I rise today to join Senators Durbin, Shelby 
and Sarbanes in expressing our concern about an issue that could affect 
countless graduates who work hard to pay off their student loans.
  A little over a year ago, Sallie Mae--one of the largest originators 
of student loans and the largest secondary market for student loans--
made a quiet decision that had a huge impact on college graduates.

[[Page 26924]]

  Sallie Mae refused to report student loan repayment histories to two 
out of three major credit reporting agencies. That means graduates--
most of whom have good records of paying on their student loans--have 
huge holes in their credit histories holes that prevent them from 
establishing credit or getting the best rates to buy their first home.
  I recognize that our credit reporting system is essentially 
voluntary. There is no legal requirement that any private business 
report information to any credit bureau. However, Sallie Mae is an 
exception. U.S. Department of Education regulations require Sallie Mae 
to report student loan credit report histories to at least one of the 
three major credit reporting agencies.
  Until last year, they reported to all three agencies. Then, Sallie 
Mae decided to stop reporting to two of the agencies. Some say they 
stopped because those two agencies routinely sold lists of Sallie Mae 
customers to competitors who could offer better deals. Sallie Mae 
maintains that they were protecting their customers from unwanted 
solicitations.
  Whatever the reason, the result is clear: students who have worked 
hard to complete their education are hurt by this policy. Graduates 
entering the workforce and attempting to establish credit--even those 
who may have excellent records paying off their student loans--end up 
with incomplete credit records. On that basis alone, they may be denied 
credit.
  This is a significant problem. Leaving out positive credit 
information on student loans can lead to a lower credit score for 
consumers. Lower credit scores penalize consumers in the form of higher 
credit card and mortgage interest rates, more expensive insurance, and 
even the risk of being excluded from the marketplace altogether.
  Sallie Mae's decision has been especially detrimental to new home 
buyers. Mortgage credit is generally based on a merged credit report 
which incorporates information from all three credit repositories. It 
can only provide an accurate credit history if all three reports are 
complete.
  The Washington Post recently highlighted the story of a 31-year-old 
architect who applied for a mortgage to buy a new house. Because Sallie 
Mae did not report his years of on-time student loan payments to all 
the credit bureaus, his credit score dropped 40 points--and his 
mortgage rate increased 1.5 points--costing him $200 dollars more per 
month in interest payments.
  After learning of this problem last month, I have been in touch with 
Sallie Mae to urge them to resume full credit reporting to all three of 
the major credit reporting bureaus. I have also been in touch with the 
chairman and ranking member of the Banking Committee, and with Senator 
Durbin. I appreciate their willingness to work with me to ensure that 
student loan repayment histories are fully reported to all the major 
credit bureaus.
  I am especially pleased that today, Sallie Mae announced that they 
have reached agreement with the credit bureaus and will now begin 
reporting to all three once again. I appreciate their efforts to work 
with our offices to solve this problem and ensure that their customers 
get the credit they have earned. I commend Sallie Mae for doing the 
right thing and fixing this problem promptly.
  This is truly a positive step forward, but I think we should take one 
more at the appropriate time. Congress should codify these new 
agreements in law by requiring Sallie Mae to report to all three major 
credit bureaus. This will guarantee graduates that their student loan 
payment histories will always be reported and their credit scores will 
be complete. It will make sure that we do not face further problems in 
the future.
  Senator Durbin and I have both been working on amendments that would 
do just that. While I will not offer an amendment on this bill, I look 
forward to working with Senator Durbin, Chairman Shelby, and Senator 
Sarbanes to address this issue in the future.
  Mr. REID. Mr. President, I know the two managers are on the floor. I 
want to bring to their attention that Senator Cantwell has been waiting 
to speak for some time on an amendment which was adopted. If you could 
work them into the order, I would appreciate it.
  Ms. CANTWELL. Mr. President, my colleague from Wyoming and I tried to 
accommodate Members who were here in the last few minutes, trying to 
get several amendments adopted.
  I want to spend a few minutes going into more detail about the 
Cantwell-Enzi Restore Your Good Name Act that has been incorporated 
into the Fair Credit Reporting Act.
  I would first like to thank the chairman and ranking members of the 
committee for their strong support of this underlying bill that has 
been incorporated, along with the last amendment that we just voted on 
by voice a few minutes ago, dealing with business records.
  It was roughly 2 years ago that the chairman of the Banking Committee 
and I spoke at a national platform for the attorneys general of America 
to address the issue of privacy and some of the biggest challenges to 
privacy at that time. We both made known our view that this country 
needed stronger legislation in the area of identity theft.
  I commend the chairman and the ranking member for their strong step 
forward, a really critical step forward, to protect Americans from what 
is the fastest growing crime in America--identity theft.
  Unfortunately, even though the Senate passed the Cantwell-Enzi 
legislation last year, the House failed to act on it and the number of 
victims has continued to grow. In fact, 9 million Americans have been 
the victims of identity theft. This underlying bill incorporates some 
of those good ideas that my colleague from Wyoming worked so hard on in 
the Banking Committee and that we worked through the Judiciary 
Committee to pass. I certainly commend my colleague, Senator Enzi, for 
his dedication to this issue. Consumers in America are going to be more 
protected because of his efforts. It has been a pleasure to work with 
him on these challenging issues, to make sure those protections are put 
in place.
  The underlying bill that we have passed changes the framework by 
which consumers can now restore their good name and protect their 
identity. It does so, first and foremost, as Senator Enzi and I 
suggested, by formulating an affidavit process. So many people in 
America are victims of identity theft. But I can tell you this: it is 
not a crime for which you can call 911 and get immediate response. The 
biggest problem, once you are a victim of identity theft, is proving 
that you are in fact the person whose identity has been stolen.
  I like to say that, in the case of the perpetrator who steals your 
television set right out of your living room, chances are that he is 
somewhere in the neighborhood. But the crime of identity theft could 
involve someone anywhere in the country, or for that matter, outside 
the United States, working with a ring.
  So part of what we are trying to do, first and foremost, is to give 
victims and law enforcement tools to help victims reclaim their 
identity. The affidavit process that now must be accepted by business 
owners and credit agencies as proof that you are a victim of identity 
theft is the first step in making sure that your credit record is 
corrected and perpetrators are prevented from continuing to ruin your 
credit.
  Second, the credit provisions that Senator Enzi was successful in 
getting added in committee represent a tremendous step in solving the 
problem that so many Americans face when their identity is stolen--that 
the perpetrators continue to pose as them, running up large credit 
bills.
  In the case of a constituent I recently met in Washington State, the 
perpetrator who stole the constituent's license succeeded in buying 
five different vehicles. My constituent has continued to be a subject 
of investigation by law enforcement as she has tried to prove that it 
was, in fact, her identity that was stolen, that she was the victim. So 
a critical part of this legislation is the fact that individuals will 
be allowed to go to a credit agency

[[Page 26925]]

and get that information blocked so that their good name is restored.
  The amendment that we just adopted deals with another aspect of this 
problem, which is getting access to business records. Law enforcement 
in the State of Washington have been very successful at dealing with 
crimes of identity theft because identity thieves are often criminals 
who are involved in larger activities. There is a high correlation 
between people who are involved in identity theft--who use that stolen 
identity to get access to cash and resources in the State of 
Washington--and people who are involved with methamphetamine 
production. These criminals are involved in both drug activity and 
identity theft.
  With this amendment, police can now get access to business records. 
Any victim, or law enforcement official acting on behalf of the victim, 
will have access to business records within 20 days after the victim 
provides identification, an affidavit and a police report to the 
business. This gives consumers a real tool to correct the harm caused 
them by this crime. This is a very fundamental part of this bill.
  The last aspect of the identity theft bill that is part of the 
amendment we just agreed to deals with the statute of limitations. In 
the 2001 Supreme Court case of TRW v. Andrews, the Court ruled that the 
statute of limitations in these cases runs for 2 years from the time 
the crime is committed. But what we have found is that some victims of 
identity theft don't even realize they are victims until a year or 2 
years after the identity theft has occurred. The statute of limitations 
therefore impacted the ability of victims to get justice. The 
underlying amendment we just agreed to extends the statute of 
limitations to give victims of identity theft 5 years from the time the 
crime was committed.
  This underlying bill with the amendment we just agreed to represents 
a critical first step in dealing with one of the most important issues 
I think we will deal with in this information age, which is the issue 
of privacy. While this body has tried to deal with this issue in myriad 
ways by protecting the financial and health records of individuals, and 
by making sure that either opt-in or opt-out legislation have been 
cleared with consumers, I think we have much more work to do in the 
area of privacy. But you can be sure the Fair Credit Reporting Act 
before us today and the Cantwell-Enzi amendment and language adopted 
with it take a very positive step in dealing with one of the biggest 
privacy threats to Americans today--identity theft.
  With these tools, law enforcement and individual consumers whose 
identities have been stolen will have the tools to make the process of 
reporting and resolving identity theft go smoother. While some may have 
said businesses would oppose the underlying amendment, or some of the 
features of the Cantwell-Enzi amendment, businesses have seen record 
losses of $22 billion a year from identity theft, and they have joined 
in this effort to make sure we pass strong national legislation.
  I again thank Senator Sarbanes and Senator Shelby for their hard 
work, and certainly Senator Enzi for his effort and his stewardship in 
making sure we have good legislation in the process that can go on to 
passage and that will better protect consumers in America.
  I yield the floor.
  The PRESIDING OFFICER (Mrs. Dole). The Senator from New York.
  Mr. SCHUMER. Thank you, Madam President.
  I thank Chairman Shelby and Ranking Member Sarbanes for the wonderful 
job they did on this legislation. An important measure such as this 
that sails through the floor in 1 day is a tribute to the statesmanlike 
and fine legislative hand of our new chairman of the Banking Committee 
and, of course, the steady and wise old hand of our former chairman of 
the Banking Committee and now the ranking member.
  I have been ready to offer an amendment on an issue related but not 
directly on point to this legislation; that is, debit cards. Right now, 
millions of Americans use debit cards. They are great. You don't need a 
checkbook when you have a debit card. It solves many problems. It is a 
real measure of convenience. They are easy and they save a little time. 
You don't have to go to the bank and get cash. It is a win-win, except 
for one catch: Most consumers think when they pay with a debit card it 
is free; that it doesn't cost anything. However, many banks are now 
charging the consumer when he or she uses the debit card as much as 
$1.50. In my State of New York, about half the banks charge anywhere 
between 25 cents to $1.50. When I have asked consumers, they don't 
know. My wife didn't know.
  What I want to do is what I did in the House on credit cards and what 
I was able to do here in the Senate with ATMs--not eliminate the fees, 
because that is up to each bank but, rather, disclose them.
  There are a couple of problems with disclosure. One is because it is 
not the banks that own the machines--the ATMs--rather, it is the 
stores.
  It is a little more difficult to get that information out to the 
consumer even when the consumer swipes the card. What we have done here 
is ask the Federal Reserve to within 6 months study this issue and show 
us how it can be done.
  In addition, there is another point our amendment has that we ask the 
Federal Reserve to study; that is, at least putting it on the monthly 
bank statement in clear letters what the fees are for debit cards. That 
is not done now. There are kids in college who were mailed these cards, 
and they used them to buy a Coke. The Coke was a dollar. The fee was a 
dollar. If they knew it cost $1, they probably wouldn't do it anymore.
  I would like to engage in a colloquy with the chairman of the 
committee.
  As the chairman knows, after a long fight Congress enacted 
legislation so that every ATM--no matter if it is run by a bank or 
private operator--tells you when you are being charged. Customers have 
come to know and expect that warning. But there is no warning when you 
use your card at a store and use it as a debit card. As often as not, 
you are charged. Is that correct?
  Mr. SHELBY. If the Senator will yield, I understand the concerns. I 
think it is also true that debit card transactions and ATM transactions 
have some significant differences. Namely, the retailer owns the debit 
machine while the bank owns the ATM machine. This makes a ``point of 
sale'' disclosure--as we achieved in Gramm-Leach-Bliley--more difficult 
since banks cannot easily adjust the equipment and the software.
  Mr. SCHUMER. I ask unanimous consent that the letter the chairman, 
the ranking member, and myself are submitting to the Federal Reserve 
Board be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

            U.S. Senate, Committee on Banking, Housing, and Urban 
                                                          Affairs,
                                 Washington, DC, November 6, 2003.
     Hon. Alan Greenspan,
     Chairman, Board of Governors of the Federal Reserve System, 
         Washington, DC.
       Dear Chairman Greenspan: We are writing to request a study 
     by the Board of Governors of the disclosure of fees imposed 
     by financial institutions on consumers in debit card 
     transactions. Our request is outlined in the attached 
     document.
       As you know, consumers are increasingly using debt cards as 
     an alternative to cash or credit cards. In 2001, there were 
     estimated to be over 250 million bank cards in circulation 
     with a debit function, and today it is estimated that debit 
     payments make up almost 12 percent of retail payments. The 
     reasons for this growth are clear. Debit cards offer 
     convenience for consumers, and they offer substantial cost 
     savings for banks through more efficient electronic 
     processing.
       Debit cards can be used by a consumer in two ways. In an 
     online transaction, the consumer enters his/her personal 
     identification number (PIN), and the debit occurs through an 
     electronic transfer of funds over a local debit network, 
     e.g., InterLink or Plus, from the consumer's bank to the 
     merchant's bank. In an offline transaction, the consumer 
     signs his/her name on a receipt, and the transaction occurs 
     over a MasterCard or Visa network linked to the bank.
       However, depending on how the consumer chooses to use his 
     or her debit card, banks charge and make different amounts of 
     money. In an offline transaction, banks

[[Page 26926]]

     charge a merchant from approximately 1.5 percent to 1.99 
     percent of the total value of the transaction, similar to 
     credit card transactions that utilize the Visa or MasterCard 
     networks. For example, in a $100 transaction, the merchant 
     would be charged up to $2.00 for the processing of the 
     transaction over the Visa or MasterCard network. In an online 
     transaction, banks charge the merchant a flat fee of about 
     thirty cents.
       As those numbers illustrate, banks typically make more 
     money when consumers use their debit cards in the offline or 
     credit card-like function. In fact, it has been estimated to 
     us that in a typical transaction banks make three to four 
     times more money on offline transactions than on online 
     transactions.
       In part to make up for this revenue differential, banks 
     have introduced new debit card fees in the form of a charge 
     to the consumer for each PIN-based, online transaction he or 
     she makes. This fee comes on top of the flat fee already 
     charged to the merchant.
       However, the consumer may be unaware of these fees at the 
     time of the purchase. He or she has no explicit disclosure of 
     the fee at the point of sale, and no option to accept or deny 
     the additional charge, or to pay cash or use a different 
     payment to avoid the fee. The evidence of the debit car fee 
     shows up only later on the consumer's monthly bank statement. 
     The debit card fees are published together with ATM fees, 
     making it difficult for the consumer to distinguish or 
     understand the charges. Many consumers end up calling the 
     retailer to complain about the fee in the mistaken belief 
     that it was the retailer, not their bank, that initiated the 
     charge.
       The growth of debit cards and the rise in debit cards fees 
     makes this an important issue. The number of parties involved 
     in the debit cards transactions--retailers, consumers, 
     electronic payment networks, and banks--makes this a complex 
     issue. As always we appreciate your support and the diligence 
     and expertise of the staff at the Federal Reserve Board in 
     helping us to consider and to address the disclosure of debit 
     cards fees to consumers.
           Sincerely,
     Richard Shelby,
       Chairman.
     Paul Sarbanes,
       Ranking Member.
     Charles Schumer,
       United States Senator.

  Mr. SCHUMER. Mr. Chairman, I know you have been in support of the 
Feds doing the study so we can see what to do next year in terms of 
legislation; I ask if that is amenable to you?
  Mr. SHELBY. Absolutely. Senator Sarbanes and I agree with Senator 
Schumer and support further study of this issue. We have planned and 
drafted a letter to the Federal Reserve Board asking them to conduct a 
comprehensive review of this issue.
  Mr. SCHUMER. I ask the ranking member for his views on this letter 
and what we have to do in terms of disclosure on debit cards.
  Mr. SARBANES. I share the chairman's view. I think the Senator from 
New York has spotlighted a very important issue, but probably the best 
way to proceed now is with this joint letter to the Federal Reserve. 
Then we would have the benefit of their study of this issue as we move 
ahead to try to address it.
  Mr. SCHUMER. I thank the ranking member. We will make progress on 
debit cards. I will not go into all the details of the study. The 
letter is quite detailed. The Federal Reserve is willing to do it.
  I make two other points after commending my colleagues on the bill 
overall. I am proud to be a cosponsor and supporter of this bill. There 
are two parts of the bill in which I was particularly interested. One 
is identity theft which has become an epidemic. When your identity is 
stolen, it can take years to bring back your credit rating, even 
through no fault of your own. The criminals are getting very good at 
identity theft.
  I introduced comprehensive legislation in this regard much earlier 
this year. The chairman has added provisions very similar to those I 
have introduced. As a result, this bill does a good job. Right now, 
becoming a victim of identity theft is as easy as saying your ABC's. 
With this legislation, it will be tougher.
  My hometown, New York City, has the unfortunate distinction of being 
the identity theft capital of the world. I am glad we were able to do 
something quickly in that regard.
  Second, on credit scoring, this is another issue on which the Senator 
from Colorado and myself worked long and hard. We thank the chairman 
and ranking member for incorporating that into the legislation.
  The bottom line is, consumers have been kept in the dark about what 
their credit score is and how it is computed. This legislation, by 
adding the Schumer-Allard provision, lifts the veil of secrecy over 
credit scores. When a bank is going to charge you more for your 
mortgage, which could mean hundreds and hundreds of dollars every 
quarter, much more money every month, now you will be able to find out 
why and if there is incorrect information as to why you are being 
charged more. Maybe it is because you have a whole lot of credit cards, 
for instance, even if you pay your bills on time. You will be able to 
correct it.
  This is fine legislation. I am speeding things along here because I 
know people want to move quickly. I thank the chairman.
  The PRESIDING OFFICER. The Senator from New Jersey.


                           Amendment No. 2064

  Mr. CORZINE. Madam President, I have a couple of general remarks 
about the overall legislation and I have an amendment at the desk which 
I call up, No. 2064.
  The PRESIDING OFFICER. The clerk will report.
  The legislative clerk read as follows:

       The Senator from New Jersey [Mr. Corzine] proposes an 
     amendment numbered 2064.

  Mr. CORZINE. Madam President, I ask unanimous consent that reading of 
the amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment is as follows:

(Purpose: To require financial institutions and other users of consumer 
 reports to provide notice to appropriate Federal agencies in cases in 
               which consumer information is compromised)

       On page 16, line 25, strike the period at the end and 
     insert the following: ``; and
       ``(C) prescribe regulations requiring each financial 
     institution and each other person that is a creditor or other 
     user of a consumer report to notify the Federal Trade 
     Commission (and any other agency or person that such 
     rulemaking agency determines appropriate) in any case in 
     which there has been, or is reasonably believed to have been 
     unauthorized access to computerized or physical records which 
     compromises the security, confidentiality, or integrity of 
     consumer information maintained by or on behalf of that 
     entity, except that such regulations shall not apply to a 
     good faith acquisition of information by an employee or agent 
     of such entity for a business purpose of that entity, if the 
     information is not subject to further unauthorized access.''.

  Mr. CORZINE. I understand the amendment will be agreed to by both of 
the managers but let me first say that this amendment is about 
disclosure of breached customer data that may exist in our system. 
Frankly, 85 percent of businesses that have sophisticated computer 
systems have identified breaches in their system. My amendment asks for 
the reporting of those breaches to the FTC so we can get a database and 
understand it.
  Mr. SHELBY. Madam President, the managers are prepared to accept the 
amendment offered by Senator Corzine. It is a good amendment and makes 
a lot of sense.
  Mr. SARBANES. The amendment of the Senator from New Jersey makes a 
positive contribution to this legislation. I am certainly happy to 
accept it.
  I also thank the Senator for all the work he did in the committee on 
so many provisions in this legislation. He had a major hand in shaping 
the bill. I deeply appreciate that.
  Mr. CORZINE. I appreciate that recognition.
  The reality is the chairman and ranking member showed great 
stewardship and leadership to get this bill in a position where it has 
broad support in this body. It is going to make a big difference in the 
financial marketplace for consumers.
  Both the reauthorization and additional elements embedded in this 
bill have truly improved our credit system, which is already the finest 
in the world. I thank the ranking member. I want to make sure the 
chairman knows that I appreciate the bipartisanship, the cooperation, 
and comity that has accompanied the framing of this bill. I very much 
appreciate the inclusion of the disclosure of breached consumer data as 
part of the bill.

[[Page 26927]]

  There are some elements of this bill that I will highlight that 
others have given emphasis to. It is particularly important to 
strengthen the controls on personal, financial, and medical data in 
this bill; however, nothing is more important, in my view, than someone 
having the ability of requesting a credit file on themselves from the 
credit agencies once a year. People ought to be able to understand how 
they are being viewed in the system, if ever they are going to correct 
issues. That, to me, is one of the most important controls.
  Very much to the credit of the ranking member, there is emphasis on 
promoting financial literacy embedded in this legislation that creates 
a real foundation for how we can talk to the general public, teach the 
principles of proper financial management, which is one of the most 
important elements in individual personal finances. When citizens find 
they are on the short end of their credit reports and they are in court 
to solve a bankruptcy, they wish they had learned more in school 
regarding managing personal finances.
  The identity theft issue, which is part of why I have offered the 
breached customer data amendment, is so important. This is an epidemic 
in our society. The number of breaches, the number of extraordinary 
cases of individual pain that has come from people breaching our 
technologically connected world today is overwhelming. The protections 
we have started to talk about--fraud alerts, limitations on transfer of 
debt, and this free credit report a year--will go a long way toward 
trying to shape it up.
  We could go further in this area, in my own view. As the Senator from 
New York discussed, this is an important piece of legislation. I wish 
we had done a little more to control the use of financial information, 
particularly among affiliates in some of our most complex organizations 
where there are 1,000 or 1,500 affiliates, some spread out but not as 
broadly controlled as some Members might think relative to what I know 
is in the case of the world financial markets.
  But that said, this is a fine piece of legislation. The manager and 
ranking member should be congratulated, as should all of the members of 
the committee, including the Presiding Officer.
  With that, I will yield the floor.
  The PRESIDING OFFICER. The Senator from Nevada.
  Mr. REID. Madam President, has that amendment been disposed of?
  The PRESIDING OFFICER. It has not.
  Is there further debate?
  If not, the question is on agreeing to amendment No. 2064.
  The amendment (No. 2064) was agreed to.
  Mr. SARBANES. I move to reconsider the vote.
  Mr. REID. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  The PRESIDING OFFICER. The Senator from Nevada.
  Mr. REID. Madam President, I have spoken to the two managers of the 
bill, and at this stage it appears we have two amendments left, both 
from the Senator from Wisconsin, Mr. Feingold. He has agreed, with the 
permission of the managers, to offer one amendment, then offer the next 
amendment, and debate both those amendments at the same time; and then 
we would vote on both amendments following his debate on both 
amendments and, of course, the adequate response from the managers of 
the bill.
  Senator Feingold is here and he is in agreement with that, so we do 
not need a unanimous consent agreement, but people should understand 
what he intends to do at this time, and what we intend to do.
  Following that, it is my understanding, from speaking to the two 
managers, there are no other amendments. I think there may be a 
statement or two that Senators wish to give on the bill, but other than 
that, I know of no substantive amendments.
  The PRESIDING OFFICER. The Senator from Maryland.
  Mr. SARBANES. Madam President, I would anticipate we would be ready 
to go to final passage. I think we can move fairly quickly. I know 
Senators have conflicting demands on them, and we are trying to move 
along.
  Mr. REID. Madam President, I have a statement that will take about 3 
or 4 minutes that I will give at some time.
  The PRESIDING OFFICER. The Senator from Wisconsin.


                           Amendment No. 2065

  Mr. FEINGOLD. Madam President, I send an amendment to the desk and 
ask for its immediate consideration.
  The PRESIDING OFFICER. The clerk will report.
  The legislative clerk read as follows:

       The Senator from Wisconsin [Mr. Feingold] proposes an 
     amendment numbered 2065.

  Mr. FEINGOLD. Madam President, I ask unanimous consent that reading 
of the amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment is as follows:

       (Purpose: To provide for data-mining reports to Congress)

       At the appropriate place, insert the following:

     SEC. __. DATA-MINING REPORTING ACT OF 2003.

       (a) Short Title.--This section may be cited as the ``Data-
     Mining Reporting Act of 2003''.
       (b) Definitions.--In this section:
       (1) Data-mining.--The term ``data-mining'' means a query or 
     search or other analysis of 1 or more electronic databases, 
     where--
       (A) at least 1 of the databases was obtained from or 
     remains under the control of a non-Federal entity, or the 
     information was acquired initially by another department or 
     agency of the Federal Government for purposes other than 
     intelligence or law enforcement;
       (B) the search does not use a specific individual's 
     personal identifiers to acquire information concerning that 
     individual; and
       (C) a department or agency of the Federal Government is 
     conducting the query or search or other analysis to find a 
     pattern indicating terrorist or other criminal activity.
       (2) Database.--The term ``database'' does not include 
     telephone directories, information publicly available via the 
     Internet or available by any other means to any member of the 
     public without payment of a fee, or databases of judicial and 
     administrative opinions.
       (c) Reports on Data-Mining Activities.--
       (1) Requirement for report.--The head of each department or 
     agency of the Federal Government that is engaged in any 
     activity to use or develop data-mining technology shall each 
     submit a public report to Congress on all such activities of 
     the department or agency under the jurisdiction of that 
     official.
       (2) Content of report.--A report submitted under paragraph 
     (1) shall include, for each activity to use or develop data-
     mining technology that is required to be covered by the 
     report, the following information:
       (A) A thorough description of the data-mining technology 
     and the data that will be used.
       (B) A thorough discussion of the plans for the use of such 
     technology and the target dates for the deployment of the 
     data-mining technology.
       (C) An assessment of the likely efficacy of the data-mining 
     technology in providing accurate and valuable information 
     consistent with the stated plans for the use of the 
     technology.
       (D) An assessment of the likely impact of the 
     implementation of the data-mining technology on privacy and 
     civil liberties.
       (E) A list and analysis of the laws and regulations that 
     govern the information to be collected, reviewed, gathered, 
     and analyzed with the data-mining technology and a 
     description of any modifications of such laws that will be 
     required to use the information in the manner proposed under 
     such program.
       (F) A thorough discussion of the policies, procedures, and 
     guidelines that are to be developed and applied in the use of 
     such technology for data-mining in order to--
       (i) protect the privacy and due process rights of 
     individuals; and
       (ii) ensure that only accurate information is collected and 
     used.
       (G) A thorough discussion of the procedures allowing 
     individuals whose personal information will be used in the 
     data-mining technology to be informed of the use of their 
     personal information and what procedures are in place to 
     allow for individuals to opt out of the technology. If no 
     such procedures are in place, a thorough explanation as to 
     why not.
       (H) Any necessary classified information in an annex that 
     shall be available to the Committee on Governmental Affairs, 
     the Committee on the Judiciary, and the Committee on 
     Appropriations of the Senate and the Committee on Homeland 
     Security, the Committee on the Judiciary, and the Committee 
     on Appropriations of the House of Representatives.
       (3) Time for report.--Each report required under paragraph 
     (1) shall be--
       (A) submitted not later than 90 days after the date of the 
     enactment of this Act; and

[[Page 26928]]

       (B) updated once a year and include any new data-mining 
     technologies.

  Mr. FEINGOLD. Madam President, the Fair Credit Reporting Act was 
designed to make sure that personal financial information about 
consumers is fairly maintained and accurately reported by credit 
agencies and provided only to the appropriate people. Maintaining the 
privacy of the consumer is one of the central objectives of the Fair 
Credit Reporting Act. My amendment will ensure that the Federal 
Government is not overstepping its role in obtaining and using this 
highly personal information.
  My amendment will require all Federal agencies to report to Congress 
on the practice of datamining but it would not impose any limits on the 
use of datamining. This amendment will provide the American people with 
critical information about the use of datamining technology and the way 
highly personal information, such as credit reports and other financial 
information, is obtained and used by our Government.
  The untested and controversial intelligence procedure known as 
datamining is capable of maintaining extensive files containing both 
public and private records on each and every American. Periodically, 
after millions of dollars have been spent, we learn about a new 
datamining program under development. Congress and the public should 
not be learning the details about these programs only after millions of 
dollars are spent testing and using datamining against unsuspecting 
Americans.
  Coupled with the expanded domestic surveillance undertaken by this 
administration in the wake of September 11, the unchecked development 
of datamining is a potentially troubling step that threatens one of the 
most important values that we are fighting for in the war against 
terrorism; and that, of course, is freedom. My amendment would simply 
require all Federal agencies to report to Congress within 90 days and 
every year thereafter on datamining programs used to find a pattern 
indicating terrorist or other criminal activity and how these programs 
implicate the civil liberties and privacy of all Americans. If 
necessary, information in the various reports can be classified.
  The amendment does not end funding for any program, determine the 
rules for use of the technology or threaten any ongoing investigation 
that uses datamining technology. All it does is ensure that Congress 
has complete information about the current datamining plans and 
practices of the Federal Government. With this information, Congress 
will be able to conduct a thorough review of the costs and benefits of 
the practice of datamining on a program-by-program basis and make 
considered judgments about which programs should go forward and which 
ones should not.
  My amendment would provide Congress with information about the nature 
of the technology and the data that will be used. The amendment would 
require all Government agencies to assess the efficacy of the 
datamining technology and whether the technology can deliver on the 
promises of each program. In addition, the amendment would make sure 
that the Federal agencies using datamining technology have considered 
and developed policies to protect the privacy and due process rights of 
individuals and ensure that only accurate information is collected and 
used.
  Congressional review and oversight is necessary in order to find out 
whether and how Government agencies, such as the Department of Homeland 
Security, the Department of Justice, and the Department of Defense, 
plan to collect and analyze a combination of intelligence data and 
personal information such as individuals' traffic violations, credit 
card purchases, travel records, medical records, communications 
records, and virtually any information contained in commercial or 
public databases. Through comprehensive data mining, everything from 
people's video rentals or drugstore purchases made with a credit card 
to also their most private health records could be fed into a computer 
and monitored and reviewed by the Federal Government.
  Using data mining, the Government hopes to be able to detect 
potential terrorists. There is no evidence, however, that data mining 
will, in fact, prevent terrorism. Data mining programs under 
development are being used to look into the future before being tested 
to determine if they would have even been able to anticipate past 
events like September 11 or the Oklahoma City bombing. Before we 
develop the ability to feed personal information about every man, 
woman, and child into a giant computer, we should learn what data 
mining can and can't do and what limits and protections are needed.
  We must also consider the potential for errors in data mining. Most 
people don't even know what information is contained in their credit 
reports. Subjecting unchecked and uncorrected credit reports to massive 
data mining makes the prospect of ensnaring many innocents very real. 
If a credit agency has data bout John R. Smith on John D. Smith's 
credit report, even the best data mining technology might reach the 
wrong conclusion.
  Most Americans believe that their private lives should remain 
private, especially from the Government. Data mining programs run the 
risk of intruding into the lives of individuals who have nothing to do 
with terrorism but who trust that their credit reports, financial 
records, shopping habits and doctor visits would not become a part of a 
gigantic computerized search engine, operating without any controls or 
oversight.
  The executive branch should be required to report to Congress about 
the impact of the various data mining programs now underway or being 
developed, and the impact those programs may have on our privacy and 
civil liberties so that Congress can determine whether the proposed 
benefits of this practice come at too high a price to our privacy and 
our personal liberties.
  Some may argue that this amendment does not belong in the bill before 
us. I respectfully disagree. As we consider legislation dealing with 
individuals' credit reports and their financial privacy, I think it is 
both relevant and important that we find out whether and to what extent 
the Government is reviewing databases containing highly personal 
information.
  So I urge my colleagues to support this very simple reporting 
amendment. All it asks for is information to which Congress and the 
Americana people are entitled.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Alabama.
  Mr. SHELBY. Madam President, I intend to oppose this amendment and 
all amendments that are not within the four corners of the Fair Credit 
Reporting Act legislation.
  The committee spent a great deal of time, as the Presiding Officer 
knows, as a distinguished member of the Banking Committee, carefully 
considering the reauthorization and reform of the Fair Credit Reporting 
Act national standards.
  The committee bill is carefully crafted, and it balances protecting 
consumer interests and ensuring the efficiency of our credit markets.
  The committee bill was unanimously approved, as the Presiding Officer 
knows, by a voice vote in the committee, which is hard to get. It was 
unanimous.
  Extraneous amendments, I believe, alter this balance and focus and 
threaten our ability to maintain the strong, bipartisan consensus 
necessary to pass this important legislation this year.
  As a result, the managers of the bill--Senator Sarbanes and I--intend 
to oppose including this amendment and all non-Fair Credit Reporting 
Act-related amendments, regardless of their merit. This might have some 
merit, but I think it can be better served at another place on another 
day.
  At the proper time, I will move to table the amendment. Right now, I 
yield to Senator Sarbanes.
  Mr. FEINGOLD addressed the Chair.
  The PRESIDING OFFICER. The Senator from Wisconsin.
  Mr. FEINGOLD. Madam President, if I could respond briefly to the 
chairman, first, I congratulate the chairman and ranking member for 
putting this

[[Page 26929]]

bill together. I intend to support it. I am pleased to support it. I 
recognize the managers had to achieve a balance, and they do not want 
to disrupt that balance.
  I think I can pretty confidently assure my colleagues that a mere 
reporting requirement by Federal agencies could not possibly upset the 
balance they have so skillfully achieved. So I would argue in the case 
of this amendment--and my second amendment, which is also only about 
Federal Government reporting information--that it does no violence to 
what they have achieved and actually is, in this case, very consistent 
with the purposes of the bill that have to do with people's privacy of 
their financial records.
  So I urge the chairman and ranking member to consider that this would 
be different from many other amendments that could upset the balance.
  Mr. SARBANES. Madam President, I understand the data mining amendment 
encompasses the legislation which the Senator introduced and which is 
pending in the Judiciary Committee, if I am not mistaken. At least I am 
informed of that. So it is not within the scope of the work of our 
committee, I say with all due respect to the Senator.
  I share some concerns about the issues he is raising, and I think 
they are worth paying attention to. But we have tried very hard to deal 
only with amendments that are relevant to the Fair Credit Reporting 
Act. A number of Members on both sides of the aisle, upon hearing that, 
have refrained or withheld from offering amendments that are outside 
that parameter, and we are very grateful to them for doing that. 
Obviously, it has enabled us to move this legislation along.
  I think we have had a very open process in dealing with amendments 
that affect the provisions of the FCRA. We tried to keep it open and I 
think, in a sense, we have bent over backward to do that. But we have 
tried to dissuade the offering of amendments that are outside that 
scope.
  I think this amendment falls into that category, and therefore I will 
be supportive of the chairman in the statement he made. This is not to 
speak to the substance of the Senator's amendment in any developed way; 
I assure him of that. But it seems to me this is not within the scope 
of what we do in the Banking, Housing, and Urban Affairs Committee.
  Mr. FEINGOLD. Madam President, I will briefly respond with great 
respect. There were a number of other amendments with great substance 
that I would have very much wanted to offer, but did not in the spirit 
of trying to make sure nothing of great moment occurred on this bill. 
These are merely reporting amendments.
  I understand the Senator's point. These are amendments that could 
have been possibly accepted; they are not particularly controversial. 
In any event, I respect what the managers have had to do in order to 
get the bill through.
  I am prepared to move on to the next amendment, unless they want to 
continue to debate this. If the managers prefer, we could move on in 
the next amendment.
  Mr. SHELBY. Madam President, I move to table the amendment.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The yeas and nays were ordered.
  Mr. SHELBY. Madam President, I ask unanimous consent that the vote be 
deferred temporarily.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                           Amendment No. 2066

  Mr. FEINGOLD. Madam President, I send an amendment to the desk.
  The PRESIDING OFFICER. The clerk will report.
  The legislative clerk read as follows:

       The Senator from Wisconsin [Mr. Feingold] proposes an 
     amendment numbered 2066.

  Mr. FEINGOLD. Madam President, I ask unanimous consent that further 
reading of the amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment is as follows:

      (Purpose: To require a report to Congress regarding Federal 
                acquisitions of American-made products)

       At the end of title VII, add the following:

     SEC. 712. BUY AMERICAN REPORT.

       (a) In General.--Not later than 60 days after the end of 
     each fiscal year, the head of each Federal agency shall 
     submit a report to Congress on the amount of the acquisitions 
     made by the agency from entities that manufacture the 
     articles, materials, or supplies outside of the United States 
     in that fiscal year.
       (b) Content of Report.--The report required by subsection 
     (a) shall separately indicate--
       (1) the dollar value of any articles, materials, or 
     supplies purchased that were manufactured outside of the 
     United States;
       (2) an itemized list of all waivers granted with respect to 
     such articles, materials, or supplies under the Buy American 
     Act (41 U.S.C. 10a et seq.); and
       (3) a summary of the total procurement funds spent on goods 
     manufactured in the United States versus funds spent on goods 
     manufactured outside of the United States.
       (c) Public Availability.--The head of each Federal agency 
     submitting a report under subsection (a) shall make the 
     report publicly available by posting on an Internet website.

  Mr. FEINGOLD. Madam President, I have come to this floor on several 
occasions this year to discuss the crisis in American manufacturing and 
some steps that I think Congress should take to stop the flow of 
manufacturing jobs overseas.
  One step that I believe we should take to support American 
manufacturers is to ensure that the Federal Government buys American-
made goods whenever reasonably possible. Congress enacted such a policy 
when it passed the Buy American Act of 1933. This law was enacted to 
ensure that the Federal Government supports domestic companies and 
domestic workers by buying American-made goods.
  However, the Buy American Act includes a number of waiver provisions 
which allow agencies to buy foreign-made goods in certain defined 
circumstances. I am concerned that agencies may be using these waiver 
provisions to get around the spirit, if not the letter, of the law. 
That's why, earlier this year, I introduced the Buy American 
Improvement Act, which would strengthen the existing act by tightening 
its waiver provisions.
  Unfortunately, it's virtually impossible to get hard numbers on the 
Federal Government's purchases of foreign- and domestic-made goods. 
Under current law, only the Department of Defense is required to report 
annually to Congress regarding its use of waivers of the Buy American 
Act and its corresponding purchases of foreign-made goods. As for other 
agencies, there is no real disclosure or accountability in the waiver 
process.
  I think that Congress and the public should know how taxpayer dollars 
are being spent, and that's what my amendment would do. The amendment 
is very simple and, I hope, noncontroversial. It would just require all 
Federal agencies to prepare an annual report that details their 
purchases of foreign-made goods. That's it. It would not make any 
changes in the Buy American Act; that law and its waiver provisions 
would remain the same. All that would change is that we would all know 
whether the Buy American Act is working.
  My amendment would require that the annual report to be submitted by 
agency heads include the following information: the dollar value of any 
articles, materials, or supplies purchased that were manufactured 
outside of the United States; an itemized list of all applicable 
waivers granted with respect to such articles, materials, or supplies 
under the Buy American Act; and a summary of the total procurement 
funds spent by the Federal agency on goods manufactured in the United 
States versus on goods manufactured outside of the United States. The 
amendment also requires that the heads of all Federal agencies make 
these annual reports publicly available on the Internet.
  Some may argue that this is a burdensome requirement. The truth is 
that it is similar to the reporting requirement that the Defense 
Department complies with every year. If the Pentagon, with its many 
procurement contracts, can report to Congress annually on its purchases 
of goods, so too can all other Federal agencies.

[[Page 26930]]

  I am pleased that this amendment is supported by an array of business 
and labor groups including the AFL-CIO, Save American Manufacturing, 
the U.S. Business and Industry Council, and the International 
Brotherhood of Boilermakers.
  Madam President, 2.5 million American manufacturing jobs have been 
lost since January 2001. The current unemployment rate is 6.1 percent. 
The stagnant economy and continued loss of high-paying manufacturing 
jobs underscore the need for the Federal Government to support American 
workers and businesses by buying American-made goods. This amendment is 
a modest step toward that goal.
  I understand that the managers will oppose this and all amendments 
that are deemed to be non-relevant to the bill. I respect their 
prerogative to do so. I would have preferred to offer this important 
amendment to another bill. But opportunities to offer amendments have 
been few and far between this year, and it is the right of all Senators 
to offer amendments. I hope that my colleagues will not oppose this 
amendment simply because they do not feel it belongs on this particular 
bill. The question is not whether this amendment belongs on the bill; 
the question is whether it is good law. I think it is and I hope others 
will agree.
  The American people deserve to know how their tax dollars are being 
spent, and to what extent these dollars are being used to support 
foreign jobs. I urge my colleagues to support American companies and 
American workers by supporting this amendment.
  I yield the floor.
  Mr. SHELBY. Madam President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. CARPER. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. CARPER. Madam President, as we approach the end of actually a 
rather short, abbreviated debate on this legislation, I want to say a 
few words encouraging my colleagues to join the Presiding Officer, 
myself, and our respective Republican and Democratic floor managers in 
supporting this measure.
  Let me begin by saying to Chairman Shelby and our ranking Democrat, 
Senator Sarbanes, that I think it is rather remarkable that we have 
come through the deliberations of the past year. We had extensive, 
balanced hearings on this legislation that gave people from all sides 
of the issue the chance to comment on what they would like to see us do 
with respect to reauthorization of the Fair Credit Reporting Act.
  This is the way the process is supposed to work. We have a deadline, 
and that deadline is to act by December 31. Our chairman and ranking 
Democrat have orchestrated a series of hearings, as I said earlier, 
which allowed financial institutions to come in, allowed consumer 
groups to come in, and other folks--rank-and-file citizens--to share 
with all of us on the Banking Committee how they think we ought to 
proceed.
  We did not have one hearing; we have had a whole series of hearings. 
I think what emerged from those hearings is a consensus that we aspire 
to have, but all too rarely see. I am proud to be part of this process, 
and I suspect the Presiding Officer feels the same way.
  Our national credit granting standards that are created under the 
Fair Credit Reporting Act allow all Americans quick and easy access to 
credit, whether it is to purchase a home, to purchase a car, or any 
number of other consumer goods. There is compelling evidence that 
failure to reauthorize the expiring provisions of the Fair Credit 
Reporting Act would have significant economic consequences, and not 
very positive ones.
  I am pleased to say that the legislation before us today extends 
these uniform standards. It makes them permanent. We avoid any adverse 
impact on our national credit granting system, and we avoid any 
negative impact on our national economy.
  The legislation before us also makes a number of improvements to 
current law. I think this is an important point. It is one made by 
others, but I want to make it again. Earlier this year, the Federal 
Trade Commission released a survey indicating that millions of 
consumers have been victimized by the crime of identity theft. My own 
family understands how disruptive and devastating this crime can be, as 
one of our relatives in your State, Madam President, was victimized 
over a period of several years by identity theft. It was an awful 
experience for her and not a pleasant one for her family.
  The bill before us responds to this increasing trend by requiring the 
creation of a system of fraud alerts. This system of fraud alerts 
allows the victims of identity theft and also allows active duty 
military personnel to flag their credit reports for potential fraud. 
For example, if a consumer believes they have been the victim of 
identity theft, then that consumer can make one call and have a fraud 
alert put on his or her credit report. The alert will notify users of 
that report that this consumer could be the victim of a fraud. This 
alert, in turn, requires the users of this report to take extra steps 
before establishing new credit or establishing a credit limit.
  In the year after the fraud alert is placed in the file, a consumer 
will be able to receive not one, but two free credit reports to make 
sure the information in their credit report is correct. In addition, 
consumers will have the ability to block information on their credit 
report that is the result of identity theft.
  Importantly, the bill increases the maximum penalty for those who 
commit the crime of identity theft.
  This legislation also gives consumers more control over the 
information that is contained in their credit reports. First of all, 
consumers will have easy access to a free credit report on an annual 
basis. This is a significant right that will allow consumers to review 
the information contained in their credit report and to make 
corrections to it.
  To ensure consumers are aware of these rights, the Federal Trade 
Commission must actively publicize how consumers may obtain a free 
credit report and how to dispute information contained in that report.
  I oftentimes use the analogy of if a tree falls in a forest, there is 
nobody there to hear it. My colleagues have probably heard that; 
probably used it a time or two. In this case, if a consumer has the 
ability to obtain a free copy of their credit report annually, but they 
don't know they have that right, is there a benefit that inures from 
this legislation?
  In the legislation, we put the onus on others and the Federal Trade 
Commission to publicize how consumers can obtain a free credit report.
  In addition, the bill gives consumers important protection for their 
medical information. One of our colleagues on the floor today was 
asking if they deal with a particular financial institution, a company 
that has access to some of the medical data, can they then share 
medical data with other affiliates of that company?
  The answer is no; that is protected and prevented by this 
legislation. This bill prohibits the use of medical information in the 
credit granting process. In addition, as I just said, the legislation 
creates a system for consumer reporting agencies to code medical 
information so that someone looking at a credit report cannot discover 
a consumer's medical history.
  Finally, the bill before us establishes the Financial Literacy and 
Education Commission. I believe this is an essential part of the 
legislation--it may not have gotten a lot of credit, but it is an 
important part of this bill--because a lot of consumers in this country 
have no knowledge or at least limited knowledge of how our credit 
system works. This new commission will be charged with reviewing 
financial literacy efforts throughout the Government to eliminate 
duplicative efforts. Importantly, the Commission will also

[[Page 26931]]

coordinate the promotion of Federal financial literacy efforts, 
including outreach among State, and local governments, nonprofit 
organizations, as well as private enterprises.
  This legislation creates many new tools for consumers. I have 
mentioned some of them. But if consumers lack basic financial literacy, 
they may not be able to use these tools with the kind of effectiveness 
that is intended.
  Again, let me go back to where I started. We have seen this year a 
number of occasions when legislation has come to the floor without 
going through committee. We have seen legislation come to the floor for 
our consideration, sometimes rather complex legislation, and it has not 
had the benefit of the hearings it should have. The system has worked 
in this case: excellent hearings, the ability for us as Democrats and 
Republicans to work together to receive a whole lot of input from a 
broad cross-section of people and interest groups in this country, the 
ability to bring a bill out of committee on a unanimous voice vote. 
This is legislation that I think is going to be disposed of today.
  I am proud to at least have been a small part of that process and 
pleased to lend my support. I urge my colleagues to do the same for 
this legislation.
  I yield the floor.
  The PRESIDING OFFICER. The assistant Democratic leader.
  Mr. REID. Madam President, this is my opportunity to say a word or 
two about the National Consumer Credit Reporting System Improvement 
Act.
  We always hear about how divided the Senate is and how divided we are 
politically, that there is so much partisanship. My experience 
indicates that when there is something that really is extremely 
important that needs to get done, we do it.
  As I look back, there was the terrorism insurance, which was 
difficult to do, but in a bipartisan method we stepped forward and did 
that. We had significant problems after 9/11 with the airline industry. 
It was difficult to do, but we stepped forward with legislation that in 
fact allowed the airline industry as we know it in America to continue.
  Fair credit reporting is an important issue, and the two sides have 
joined together. I think one reason we were able to do this was the 
experience and the abilities of the two managers of this bill. The 
Senator from Maryland has heard me brag about him on many occasions. He 
is a person of great intellect, a Rhodes scholar, someone who is very 
quiet. But whenever Senator Sarbanes speaks, everyone should listen 
because he does not speak impulsively. He is aware of every word he 
says. His being the ranking member on this Banking Committee every day 
gives me comfort because it is an area of the law that I do not fully 
understand.
  I have never been on the committees of jurisdiction that deal with 
these most important issues. This committee has wide-ranging 
jurisdiction. It deals with certainly much more than banking--housing, 
mass transit.
  I also say, as I said this morning earlier about my friend from 
Alabama, the distinguished chairman of the committee, he is a fine 
legislator. We on this side of the aisle always look forward to the 
senior Senator from Alabama being part of legislation. Everyone in the 
Senate is a person of their word. I do not know anyone in the Senate, 
of the 99 other Senators, whose word we cannot trust.
  The Senator from Alabama certainly is a man of his word, but the 
reason I have such great admiration for him is that he is willing to 
listen. He is willing to listen to someone who disagrees with him.
  That this legislation arrived at the point it has, is the result of 
two fine legislators working through the committee system and reporting 
a bill to the Senate. This bill is proof that with enough hard work and 
commitment, we can move substantive, quality legislation through the 
Senate. Again, I applaud and commend the two managers of this 
legislation.
  I have personally spent some time on this legislation, working with 
Members trying to work out an arrangement to allow us to have the bill 
on the floor today. We have been able to do that. We have worked to 
limit the number of amendments. The majority leader originally said he 
would not accept the agreement that we had. There were more amendments, 
so we went back and worked and whittled down the amendments. As a 
result of that, we were able to bring this to the floor.
  I am very happy to see us moving this bill forward. It is very close 
to passage. It is an excellent example of what we can accomplish when 
Members make a dedicated effort to pursue a reasonable compromise. This 
legislation is not what Senator Sarbanes wants, it is not what Senator 
Shelby wants; it is what the committee wanted. They had to work with 
their Members. It is a compromise. Legislation is the art of 
compromise. That is not a bad word. That is the only way we can get 
legislation passed--consensus building--and they have done that.
  This legislation will help safeguard the security of consumers' 
credit data at the same time it guarantees those consumers rapid, 
widely available, and inexpensive credit.
  It is a win for the people all over Nevada. It's a win for a family 
in Elko who receives a better mortgage rate because a mortgage bank can 
be confident about the information in the parents' credit history. The 
family pays a lower rate for their mortgage and, as a consequence, will 
pay thousands less over the lifetime of the loan, and that money can be 
redirected toward childcare, college, a family vacation.
  It is a win for the used car dealer in Reno, or anyplace else in 
Nevada, who receives more complete and reliable information about 
prospective buyers. He can review an applicant's credit history and 
feel greater confidence about the degree of risk he is assuming when he 
extends credit to his customers.
  It is a win for the public who will receive better protection than 
ever before against identity theft.
  The United States has the lowest cost, most effective consumer credit 
market in the entire world, due in part to the Fair Credit Reporting 
Act. This bill will preserve and extend the best elements of this law 
and add important new provisions and make it even better.
  In closing, I am glad to see that our hard work negotiating this 
legislation has paid off with a solid bill, and I look forward to 
seeing consumers and business reaping the benefit of this legislation 
for years to come.
  Mr. CARPER. Will the Senator from Nevada yield for just a moment?
  Mr. REID. I am happy to yield to my friend from Delaware.
  Mr. CARPER. The Senator from Nevada has again heaped praise on our 
chairman and our ranking Democrat, as others of us have done, and that 
is important. I failed to mention this in my remarks and I want to 
atone for that omission now, that we are blessed with wonderful staff, 
as we all know, on both the Republican and the Democratic sides, and on 
the subcommittee and the full committee. I want to take a moment to 
also express my thanks to them and say to my own counsel, Margaret 
Simmons, who has done great work on this bill, a special thank you. 
None of us do this stuff by ourselves, as we all know. In this case, we 
have been greatly assisted by their efforts.
  I thank the Senator for yielding.
  The PRESIDING OFFICER. The Senator from Wisconsin.


                      Amendment No. 2066 Withdrawn

  Mr. FEINGOLD. Madam President, with regard to the second amendment I 
offered concerning the reporting for the Buy America Act, at this time 
I will withdraw the amendment, with my appreciation to the chairman for 
his interest in the matter, and I defer to his comments.
  Mr. SHELBY. If the Senator will yield, I believe that is a good 
amendment. I think it ought to be in other legislation. I am going to 
work with Senator Feingold. We all want to promote jobs in America. We 
believe the American worker can produce anything as well as, if not 
better than, any worker in the world. If we promote Buy America, I 
think we are saying something to our workers and our industry and our 
economy down the road, notwithstanding what others will argue.

[[Page 26932]]

  So I commend the Senator from Wisconsin for bringing this up tonight. 
We are going to continue to work on this and try to put it in the 
proper legislation, where it is going to go somewhere.
  Mr. FEINGOLD. Madam President, I thank the Senator from Alabama for 
his important statement to finally make some progress in strengthening 
the Buy America Act. I look forward to working with him on this matter.
  The PRESIDING OFFICER. Without objection, the amendment is withdrawn.
  Mr. FEINGOLD. My understanding is the Senator intends to table my 
other amendment.
  The PRESIDING OFFICER. The motion to table is pending.
  Mr. SHELBY. Madam President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. SHELBY. Mr. President, I ask unanimous consent the order for the 
quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Alexander). Without objection, it is so 
ordered.


                           Amendment No. 2067

  Mr. SHELBY. Mr. President, on behalf of Senator Nelson of Florida, I 
send an amendment to the desk and ask for its immediate consideration.
  The PRESIDING OFFICER. The clerk will report.
  The legislative clerk read as follows:

       The Senator from Alabama [Mr. Shelby] for Mr. Nelson of 
     Florida, proposes an amendment numbered 2067.

  The amendment follows:

(Purpose: To ensure proper disposal of consumer information and records 
                     derived from consumer reports)

       At the end of title II, add the following:

     SEC. 216. DISPOSAL OF CONSUMER REPORT INFORMATION AND 
                   RECORDS.

       (a) In General.--The Fair Credit Reporting Act (15 U.S.C. 
     1681m) is amended by adding at the end the following:

     ``Sec. 627. Disposal of records

       ``(a) Regulations.--
       ``(1) In general.--Not later than 1 year after the date of 
     enactment of this section, the Federal Trade Commission shall 
     issue final regulations requiring any person that maintains 
     or otherwise possesses consumer information or any 
     compilation of consumer information derived from consumer 
     reports for a business purpose to properly dispose of any 
     such information or compilation.
       ``(2) Exemption authority.--In issuing regulations under 
     this section, the Federal Trade Commission may exempt any 
     person or class of persons from application of those 
     regulations, as the Commission deems appropriate to carry out 
     the purpose of this section.
       ``(b) Rule of Construction.--Nothing in this section may be 
     construed to alter or affect any requirement imposed under 
     any other provision of law to maintain any record.''.
       (b) Clerical Amendment.--The table of sections for the Fair 
     Credit Reporting Act (15 U.S.C. 1681 et seq.), as amended by 
     this Act, is amended by adding at the end the following:

``627. Disposal of records.''.

  Mr. NELSON of Florida. Mr. President, most companies are required to 
adopt rules to ensure the proper disposal of a consumer's private 
financial records. I learned last year, before comprehensive privacy 
regulations took effect, that some companies do not have protocols in 
place outlining the proper way to dispose of private consumer 
information when it is no longer needed. Last year, thousands of files 
containing sensitive customer records were discarded in a dumpster. If 
the wrong person came across these files, he or she would have had 
everything necessary to commit numerous crimes, including identity 
theft.
  Since this incident, the company has acted to correct its privacy 
policies and the Federal Trade Commission issued its safeguards rule. 
The rule applies to credit reporting agencies and financial 
institutions that maintain consumer records and also contains guidance 
for businesses, which includes the storage and proper disposal of 
records.
  Although check-cashing businesses, ATM operators, real estate 
appraisers, and even couriers are covered by the safeguards rule, 
rental property companies that assess the creditworthiness of tenants 
and businesses that maintain consumer accounts, such as cell phone 
companies and utilities, are not covered by the rule.
  Improper disposal of a credit report could compromise driver's 
license information, Social Security numbers, employment history and 
even bank account numbers. My amendment will close the loophole and 
further protect credit information by requiring the Federal Trade 
Commission to issue regulations regarding the proper disposal of 
consumer credit information.
  Mr. SHELBY. Mr. President, Senator Sarbanes and I have reviewed the 
amendment. We have no objection to the amendment.
  The PRESIDING OFFICER. The Senator from Maryland.
  Mr. SARBANES. Mr. President, I support this amendment. Senator Nelson 
of Florida has focused on an important issue involving the disposal of 
consumer financial records. We commend the amendment to our colleagues.
  Mr. SHELBY. I urge the adoption of the amendment.
  The PRESIDING OFFICER. The question is on agreeing to the amendment.
  The amendment (No. 2067) was agreed to.
  Mr. SHELBY. Mr. President, I move to reconsider the vote.
  Mr. SARBANES. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  Mr. SHELBY. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. REID. Mr. President, I ask unanimous consent the order for the 
quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                  Unanimous Consent Request--H.R. 1904

  Mr. REID. Mr. President, there has been a lot of talk the last few 
days and different offers by the majority to go to conference on the 
Healthy Forests initiative and a number of other pieces of legislation. 
For the majority to say that going to conference is the only way to 
legislate between the two Houses is really, for lack of a better 
description, a bogus argument. Almost every day both Houses pass 
legislation for which a conference is not appointed. As I mentioned 
earlier today, just last night the Senate passed H.R. 3365, the Fallen 
Patriots Tax Relief Act. We amended it and sent it back to the House 
without asking for conference.
  On other measures, we have done the same thing--H.R. 1584, H.R. 1298, 
H.R. 733, H.R. 13, H.R. 4146, and H.R. 659 just to name a few.
  If there is any concern about holding up legislation, we believe the 
shoe fits the majority. The Healthy Forests initiative is something 
that needs to be done. We cannot understand on this side why the 
leadership has refused to send the bill to the House; that is, H.R. 
1904, the Healthy Forests initiative, which passed here overwhelmingly 
just a few days ago. The House may not want to go to conference. They 
may like our legislation or they may want to amend it and send it back. 
But at least we ought to give the House this opportunity rather than 
holding the bill hostage. That is what is happening now. By refusing to 
send it to the House, the majority is holding the bill hostage.
  I ask unanimous consent that the enrolling clerk be directed to 
immediately send H.R. 1904, which is the Healthy Forests initiative, as 
amended by the Senate, to the House of Representatives.
  The PRESIDING OFFICER. Is there objection?
  Mr. SHELBY. I object.
  The PRESIDING OFFICER. Objection is heard.
  Mr. REID. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. REID. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

[[Page 26933]]


  Mr. REID. Mr. President, what is the regular order at this time?
  The PRESIDING OFFICER. The regular order is the motion to table 
amendment No. 2065.
  Mr. SHELBY. I believe the Senator from Wisconsin has an amendment 
pending.
  Mr. DASCHLE. Mr. President, before the Senator from Alabama moves to 
table, first of all, I know we are getting close to the end of 
deliberations on this bill. I think that it merits broad bipartisan 
support.
  I appreciate very much the efforts that have been made by the 
chairman and ranking member. Both Senators have worked very closely 
together to get it to this point. Obviously, there are outstanding 
issues that still have to be resolved. We have a couple of amendments.
  I wanted to take a moment--I didn't realize we were this close to 
having the vote on the amendment itself--to draw a distinction in this 
legislation.
  Obviously, because of the extraordinary effort that has been made on 
both sides to work together and the assurances I have been given by the 
chairman that it is not his intention to conduct a conference that 
would not involve the ranking member and members of the minority with 
regard to this bill and issues to be resolved in conference, I will 
recommend to our caucus that we move forward with a conference on this 
bill. I wish I could say that with regard to other legislation, but we 
have not been given the same assurances. We are not at that point yet. 
But in this case, we certainly intend to work with our colleagues and 
with the chairman in particular. I applaud him for his efforts and 
thank him for the kind of working relationship that our two colleagues 
have. It is a tribute to both of them. I acknowledge that prior to the 
time we take our vote.
  Mr. SHELBY. Mr. President, I would like to respond to the Democratic 
leader.
  First of all, we have gotten to where we are tonight on the Fair 
Credit Reporting Act coming out of the Banking Committee by working 
together in a bipartisan way. Senator Sarbanes and the Democrats on the 
committee have been involved in the formulation of this legislation as 
so many members of the Banking Committee have. That is why we are here 
today. That is why we believe we have put together a far-reaching, very 
complex piece of legislation. We are going to continue--assuming this 
bill passes and goes into conference--to work together because that is 
the only way we are going to pass this legislation. This legislation, 
the Fair Credit Reporting Act, would expire at the end of this year. We 
know we are working on a deadline. We are working on a good piece of 
legislation. We want to continue that.
  I yield to the Senator from Maryland.
  Mr. SARBANES. Mr. President, I simply want to observe that we had a 
fair and open working relationship in the committee in bringing the 
legislation forward. All Members participated from both sides. I would 
expect that same relationship to then continue in the conference 
committee. We have been dealt fairly by the chairman. I presume we will 
continue to be dealt fairly by the chairman. I just wanted to add that 
perception to this relationship.
  Mr. DASCHLE. Mr. President, with that explanation of our 
circumstances involving this bill, as I say, we will not object to 
going to conference. I wish our colleagues well as we finish our work 
on this legislation before the end of the year.
  I yield the floor.
  Mr. SHELBY. Mr. President, if it is proper at this time, I move to 
table the Feingold amendment, and I ask for the yeas and nays.
  The PRESIDING OFFICER. The question is agreeing to the motion to 
table amendment No. 2065. The yeas and nays have already been ordered, 
and the clerk will call the roll.
  The assistant legislative clerk called the roll.
  Mr. FRIST. I announce that the Senator from Kentucky (Mr. Bunning), 
the Senator from Kentucky (Mr. McConnell), and the Senator from Wyoming 
(Mr. Thomas) are necessarily absent.
  I further announce that if present and voting, the Senator from 
Kentucky (Mr. Bunning) would vote ``yes.''
  Mr. REID. I announce that the Senator from North Carolina (Mr. 
Edwards), the Senator from Massachusetts (Mr. Kerry), the Senator form 
Connecticut (Mr. Lieberman), and the Senator from Florida (Mr. Nelson) 
are necessarily absent.
  I further announce that, if present and voting, the Senator from 
Massachusetts (Mr. Kerry) would vote ``no.''
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote.
  The result was announced--yeas 61, nays 32, as follows:

                      [Rollcall Vote No. 435 Leg.]

                                YEAS--61

     Alexander
     Allard
     Allen
     Baucus
     Bennett
     Bond
     Breaux
     Brownback
     Burns
     Campbell
     Carper
     Chafee
     Chambliss
     Cochran
     Coleman
     Collins
     Cornyn
     Craig
     Crapo
     Daschle
     DeWine
     Dole
     Domenici
     Ensign
     Enzi
     Fitzgerald
     Frist
     Graham (SC)
     Grassley
     Gregg
     Hagel
     Hatch
     Hollings
     Hutchison
     Inhofe
     Inouye
     Johnson
     Kyl
     Landrieu
     Lincoln
     Lott
     Lugar
     Miller
     Murkowski
     Nelson (NE)
     Nickles
     Pryor
     Roberts
     Rockefeller
     Santorum
     Sarbanes
     Sessions
     Shelby
     Smith
     Snowe
     Specter
     Stevens
     Sununu
     Talent
     Voinovich
     Warner

                                NAYS--32

     Akaka
     Bayh
     Biden
     Bingaman
     Boxer
     Byrd
     Cantwell
     Clinton
     Conrad
     Corzine
     Dayton
     Dodd
     Dorgan
     Durbin
     Feingold
     Feinstein
     Graham (FL)
     Harkin
     Jeffords
     Kennedy
     Kohl
     Lautenberg
     Leahy
     Levin
     McCain
     Mikulski
     Murray
     Reed
     Reid
     Schumer
     Stabenow
     Wyden

                             NOT VOTING--7

     Bunning
     Edwards
     Kerry
     Lieberman
     McConnell
     Nelson (FL)
     Thomas
  The motion was agreed to.
  The PRESIDING OFFICER. The Senator from Alabama.
  Mr. SHELBY. Mr. President, I would like to take a few moments to 
thank some of the staff who did outstanding work on the Banking 
Committee--Kathy Casey, chief of staff of the Banking Committee; Doug 
Nappi, our general counsel; Mark Oesterle, one of our counsel.
  I also thank some of the Democratic staff who worked with us on this: 
Steve Harris, who is Democratic chief of staff; Marty Gruenberg; Lynsey 
Graham Rea, and Dean Shahinian. They have all worked together in a 
bipartisan fashion. I believe that is why this legislation was brought 
out of the committee unanimously and we will be able to pass it, 
because we had a lot of input from Members and committee staff on both 
sides of the aisle. It makes a difference.
  Mr. SARBANES. Mr. President, I move to reconsider the vote.
  Mr. SHELBY. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  The PRESIDING OFFICER. The Senator from Maryland is recognized.
  Mr. SARBANES. Mr. President, I echo the chairman in expressing my 
deep appreciation to the staff people he enumerated: Kathy Casey, Doug 
Nappi, and Mark Oesterle on the Republican side, and Steve Harris, 
Lynsey Graham, Dean Shahinian, and Marty Gruenberg on the Democratic 
side.
  We are fortunate in the Banking Committee that we have a very 
committed, able, dedicated staff on both sides of the aisle. 
Furthermore, they have been able to work with one another in a very 
productive and cooperative fashion. The chairman and I are keenly aware 
of the fact of how much we rely upon them, and we want them to know how 
much we appreciate their terrific effort, which was reflected in this 
legislation and in many other matters with which the committee deals.
  The PRESIDING OFFICER. The Senator from Alabama is recognized.
  Mr. SHELBY. Mr. President, I ask unanimous consent that the vote 
occur on passage of the bill on Wednesday--tomorrow--with no 
intervening action

[[Page 26934]]

or debate, at a time determined by the majority leader, after 
consultation with the Democratic leader. Further, I ask unanimous 
consent that following that vote, the Senate insist on its amendment, 
request a conference with the House, and the Chair be authorized to 
appoint conferees on the part of the Senate, with a ratio of 4 to 3. I 
also ask unanimous consent that S. 1753 then be returned to the 
calendar.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  Mr. REID. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. STEVENS. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Coleman). Without objection, it is so 
ordered.

                          ____________________