[Congressional Record (Bound Edition), Volume 150 (2004), Part 3]
[Senate]
[Pages 2686-2697]
[From the U.S. Government Publishing Office, www.gpo.gov]




          STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS

      By Mr. BURNS (for himself, Mr. Wyden, and Mrs. Boxer):
  S. 2131. A bill to regulate the unauthorized installation of computer 
software, to require clear disclosure to computer users of certain 
computer software features that may pose a threat to user privacy, and 
for other purposes; to the Committee on Commerce, Science, and 
Transportation.
  Mr. WYDEN. Mr. President, my good friend Senator Burns and I have 
pioneered a number of legislative efforts aimed at protecting ordinary 
computer users from the tricks and schemes of those who would abuse the 
open and interconnected nature of the Internet. From online privacy to 
spam, we have sought to establish some basic, commonsense rules to 
address sleazy, intrusive, and anti-consumer practices that have arisen 
in the new world of the Internet. In each case, our goal has not been 
to stifle or restrict legitimate and innovative modes of e-commerce, 
but rather to promote them by reining in unfair and annoying behavior 
that undermines consumer confidence and use of the Internet.
  Today, we continue on that path by introducing the ``SPY BLOCK'' Act, 
together with our colleague Senator Boxer.
  This legislation will put the brakes on the growing problem of 
software being installed secretly on people's computers, for purposes 
they might object to if given the chance. Sometimes, the problem is a 
``drive-by download,'' where the consumer's mere visit to a website or 
decision to click on an advertisement secretly triggers the downloading 
of software onto the consumer's machine. Or, it can be a ``double 
whammy download,'' where the consumer's voluntary download of one 
software program also triggers the inadvertent download of a second 
software program which, although it may serve a very different purpose, 
has been bundled together with the first one.
  Once installed, the unwanted software operates in the background, 
performing functions that ordinary computer users cannot detect. As a 
result, the computer user may never even know the software is there, 
let alone what it is doing. And to add insult to injury, software that 
spreads in this fashion often is designed to be nearly impossible to 
uninstall.
  What might such software do, once it is installed? The legislation we 
are introducing today identifies several possible functions that pose 
concerns. First, some software, often referred to as ``spyware,'' 
collects information about the computer user and transmits that 
information over the Internet to the spyware's author. Second, software 
sometimes referred to as ``adware'' causes pop-up ads to appear on the 
user's computer, perhaps based on the user's apparent interests or on 
the websites he or she visits. Third, some software essentially hijacks 
the computer's processing and communications capability to forward 
spam, viruses, or other messages, all without the user's knowledge. 
Finally, some software changes user settings--for example, overriding 
the user's intended choice of homepage.
  If a computer user truly understands what the software is going to do 
and knowingly consents to it, that's fine. The issue really comes down 
to user knowledge and control. Too often, software like this allows a 
third party to wrest control of some of the computer's functions and 
commandeer them for the third party's own purposes. The software is 
essentially a parasite--it attaches itself without consent to the host 
computer and taps into the host's resources, making use of them for its 
own selfish purposes. Our bill would make such unauthorized practices 
clearly unlawful.
  How common is all this? There is little hard data, but one report 
last year estimated that 20 million people have downloaded software 
that serves them targeted advertising. I have to suspect that many of 
these downloads did not involve informed consent. It has also been 
widely reported that many of the most popular peer-to-peer file sharing 
software programs come packaged with other software that is not clearly 
disclosed to the user. So the number of affected users is likely very 
high.
  The bill we are introducing today would, for the first time, 
establish a clear legal principle that you cannot cause software to be 
installed on somebody else's computer without that person's knowledge 
and consent. This general notice and consent requirement could be 
satisfied by something as simple as an on-screen dialogue box telling 
the user that clicking ``ok'' will trigger the download of, say, a 
particular game program. In addition, the bill says that software must 
be capable of being uninstalled without resorting to extraordinary and 
highly technical procedures.
  Beyond these general requirements, the legislation calls for certain 
types of software features--those performing the four functions I 
discussed a moment ago--to be specifically and separately brought to 
the user's attention prior to installation. For example, if a software 
program has a spyware feature designed to collect and transmit 
information about the user, the user would need to be provided with 
sufficient notice based on criteria set forth in the bill. That notice 
would need to explain the types of information that would be collected 
and the purposes for which the information would be used. Following 
this notice, the user would have the option of granting or withholding 
consent. In the absence of such notice and consent, it would be 
unlawful to download the software onto the user's computer, or 
subsequently to use the software to gather information about that user.
  The bill contains some exceptions, for example, for pre-installed 
software and software features that are necessary to make basic 
features like e-mail or Internet browsing function properly. 
Enforcement under the bill would be by the Federal Trade Commission and 
state Attorneys General.
  I recognize that the bill we introduce today may benefit from further 
attention and input on the particular wording of the definitions, on 
the types of software or software features that should be listed in the 
exceptions, and so forth. Senator Burns, Senator Boxer, and I are open 
to further discussion about fine tuning the scope of the bill, so that 
we don't create a regime that ends up being impractical or imposing 
undue burdens on legitimate

[[Page 2687]]

and useful software. This is the starting point, not the end point.
  It is important, however, to get this process moving. I believe it's 
time to send a clear message that unauthorized and privacy-compromising 
spyware, adware, and other software are unlawful and punishable. I urge 
my colleagues to join Senators Burns, Boxer, and myself in supporting 
this bill.
  Mr. BURNS. Mr. President, I rise in support of a measure that I 
introduce today, with the support of my colleague, Senator Wyden. We 
worked closely on the CAN SPAM bill together, and after four years of 
effort finally saw its successful passage last year. I am pleased to 
work with Senator Wyden again on another critical issue which is 
potentially of even greater concern than junk email given its invasive 
nature--that of spyware. I also appreciate the support of another of my 
colleagues on the Senate Commerce Committee, Senator Boxer. Together, 
we have crafted legislation aimed at ending the insidious operation of 
spyware, the SPYBLOCK Act of 2004. By introducing this legislation 
today, we take the first step in giving consumers the control to stop 
this deceitful practice.
  Spyware refers to software that is downloaded onto users' computers 
without their knowledge or consent. This sneaky software is then often 
used to track the movements of consumers online or even to steal 
passwords. The porous gaps spyware creates in a computer's security may 
be difficult to close. For example, one popular peer-to-peer file 
sharing network routinely installs spyware to track users' information 
and retrieves targeted banner ads and popups. As noted by a recent 
article in PC Magazine these file-sharing networks may be free, but at 
the cost of privacy, not money. Of the 60 million users, few know they 
are being watched. Of those who do discover spyware, uninstalling it 
may prove more difficult than other software programs. Some spyware 
includes tricklers, which reinstall the files as you delete them. Users 
may think they are getting rid of the problem, but the reality of the 
situation is far different.
  The creators of spyware have engineered the technology so that once 
it is installed on a computer, it is difficult and sometimes impossible 
to remove and in some cases requires the entire hard drive to be erased 
to get rid of this poisonous product. Such drastic measures must be 
taken, because often spyware tells the installer what websites a user 
visits, steals passwords or other sensitive documents on a personal 
computer, and also redirects Internet traffic through certain web 
sites.
  One of the most disturbing aspects about the spyware problem is that 
so few consumers are even aware of it. Bearing this factor in mind, the 
SPYBLOCK bill relies on a commonsense approach which prohibits the 
installation of software on consumers' computers without notice, 
consent and reasonable ``uninstall'' procedures.
  The notice and consent approach which SPYBLOCK takes would end the 
practice of so-called ``drive-by downloads'' which some bad actors use 
to secretly download programs onto users' computers without their 
knowledge. Under SPYBLOCK, software providers must give consumers clear 
and conspicuous notice that a software program will be downloaded to 
their computers and requires user consent. This simple provision could 
be fulfilled by clicking ``yes'' on a dialog box, for example.
  SPYBLOCK also requires notice and consent for other types of 
software. In the case of ``Adware,'' providers are required to tell 
consumers what types of ads will pop up on users' screens and with what 
frequency. Consent is required for software that modifies user settings 
or uses ``distributed computing'' methods to utilize the processing 
power of individual computers to create larger networks. Finally, 
software providers must allow for their programs to be easily 
``uninstalled'' by users after they are downloaded. As with the CAN-
SPAM law, enforcement authority would be given to the Federal Trade 
Commission. States attorneys general could take action against the 
purveyors of spyware.
  Clearly, it is time to call the bad actors to account. It is 
impossible to understand how any of the individuals or companies using 
spyware believe tracking Internet usage, stealing passwords, and 
hijacking the processors of someone else's computer, all without their 
knowledge, is justifiable.
  Working closely with my colleagues Senator Wyden and Senator Boxer, I 
am confident we can make major progress on this critical legislation, 
before spyware infects a critical mass of computers and renders them 
useless. Just trying to keep up with the latest anti-spyware software 
poses a tremendous cost to businesses, let alone individuals who have 
to spend their time online worried about the next spyware infestation. 
Again, I would like to thank Senators Wyden and Boxer for their hard 
work on this vital issue, and I urge my colleagues to support this 
measure. I ask unanimous consent that the text of the bill be printed 
in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 2131

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

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Controlling Invasive and 
     Unauthorized Software Act''.

     SEC. 2. UNAUTHORIZED INSTALLATION OF COMPUTER SOFTWARE.

       (a) Notice, Choice, and Uninstall Procedures.--It is 
     unlawful for any person who is not the user of a protected 
     computer to install computer software on that computer, or to 
     authorize, permit, or cause the installation of computer 
     software on that computer, unless--
       (1) the user of the computer has received notice that 
     satisfies the requirements of section 3;
       (2) the user of the computer has granted consent that 
     satisfies the requirements of section 3; and
       (3) the computer software's uninstall procedures satisfy 
     the requirements of section 3.
       (b) Red Herring Prohibition.--It is unlawful for any person 
     who is not the user of a protected computer to install 
     computer software on that computer, or to authorize, permit, 
     or cause the installation of computer software on that 
     computer, if the design or operation of the computer software 
     is intended, or may reasonably be expected, to confuse or 
     mislead the user of the computer concerning the identity of 
     the person or service responsible for the functions performed 
     or content displayed by such computer software.

     SEC. 3. NOTICE, CONSENT, AND UNINSTALL REQUIREMENTS.

       (a) Notice.--For purposes of section 2(a)(1), notice to the 
     user of a computer shall--
       (1) include a clear notification, displayed on the screen 
     until the user either grants or denies consent to 
     installation, of the name and general nature of the computer 
     software that will be installed if the user grants consent; 
     and
       (2) include a separate disclosure, with respect to each 
     information collection, advertising, distributed computing, 
     and settings modification feature contained in the computer 
     software, that--
       (A) remains displayed on the screen until the user either 
     grants or denies consent to that feature;
       (B) in the case of an information collection feature, 
     provides a clear description of--
       (i) the type of personal or network information to be 
     collected and transmitted by the computer software; and
       (ii) the purpose for which the personal or network 
     information is to be collected, transmitted, and used;
       (C) in the case of an advertising feature, provides--
       (i) a representative full-size example of each type of 
     advertisement that may be delivered by the computer software;
       (ii) a clear description of the estimated frequency with 
     which each type of advertisement may be delivered; and
       (iii) a clear description of how the user can distinguish 
     each type of advertisement that the computer software 
     delivers from advertisements generated by other software, 
     Internet website operators, or services;
       (D) in the case of a distributed computing feature, 
     provides a clear description of--
       (i) the types of information or messages the computer 
     software will cause the computer to transmit;
       (ii) the estimated frequency with which the computer 
     software will cause the computer to transmit such messages or 
     information;
       (iii) the estimated volume of such information or messages, 
     and the likely impact, if any, on the processing or 
     communications capacity of the user's computer; and
       (iv) the nature, volume, and likely impact on the 
     computer's processing capacity of any computational or 
     processing tasks the computer software will cause the 
     computer to

[[Page 2688]]

     perform in order to generate the information or messages the 
     computer software will cause the computer to transmit;
       (E) in the case of a settings modification feature, 
     provides a clear description of the nature of the 
     modification, its function, and any collateral effects the 
     modification may produce; and
       (F) provides a clear description of procedures the user may 
     follow to turn off such feature or uninstall the computer 
     software.
       (b) Consent.--For purposes of section 2(a)(2), consent 
     requires--
       (1) consent by the user of the computer to the installation 
     of the computer software; and
       (2) separate affirmative consent by the user of the 
     computer to each information collection feature, advertising 
     feature, distributed computing feature, and settings 
     modification feature contained in the computer software.
       (c) Uninstall Procedures.--For purposes of section 2(a)(3), 
     computer software shall--
       (1) appear in the ``Add/Remove Programs'' menu or any 
     similar feature, if any, provided by each operating system 
     with which the computer software functions;
       (2) be capable of being removed completely using the normal 
     procedures provided by each operating system with which the 
     computer software functions for removing computer software; 
     and
       (3) in the case of computer software with an advertising 
     feature, include an easily identifiable link clearly 
     associated with each advertisement that the software causes 
     to be displayed, such that selection of the link by the user 
     of the computer generates an on-screen window that informs 
     the user about how to turn off the advertising feature or 
     uninstall the computer software.

     SEC. 4. UNAUTHORIZED USE OF CERTAIN COMPUTER SOFTWARE.

       It is unlawful for any person who is not the user of a 
     protected computer to use an information collection, 
     advertising, distributed computing, or settings modification 
     feature of computer software installed on that computer, if--
       (1) the computer software was installed in violation of 
     section 2;
       (2) the use in question falls outside the scope of what was 
     described to the user of the computer in the notice provided 
     pursuant to section 3(a); or
       (3) in the case of an information collection feature, the 
     person using the feature fails to establish and maintain 
     reasonable procedures to protect the security and integrity 
     of personal information so collected.

     SEC. 5. EXCEPTIONS.

       (a) Preinstalled Software.--A person who installs, or 
     authorizes, permits, or causes the installation of, computer 
     software on a protected computer before the first retail sale 
     of the computer shall be deemed to be in compliance with this 
     Act if the user of the computer receives notice that would 
     satisfy section 3(a)(2) and grants consent that would satisfy 
     section 3(b)(2) prior to--
       (1) the initial collection of personal or network 
     information, in the case of any information collection 
     feature contained in the computer software;
       (2) the initial generation of an advertisement on the 
     computer, in the case of any advertising feature contained in 
     the computer software;
       (3) the initial transmission of information or messages, in 
     the case of any distributed computing feature contained in 
     the computer software; and
       (4) the initial modification of user settings, in the case 
     of any settings modification feature.
       (b) Other Exceptions.--Sections 3(a)(2), 3(b)(2), and 4 do 
     not apply to any feature of computer software that is 
     reasonably needed to--
       (1) provide capability for general purpose online browsing, 
     electronic mail, or instant messaging, or for any optional 
     function that is directly related to such capability and that 
     the user knowingly chooses to use;
       (2) determine whether or not the user of the computer is 
     licensed or authorized to use the computer software; and
       (3) provide technical support for the use of the computer 
     software by the user of the computer.
       (c) Passive Transmission, Hosting, or Link.--For purposes 
     of this Act, a person shall not be deemed to have installed 
     computer software, or authorized, permitted, or caused the 
     installation of computer software, on a computer solely 
     because that person provided--
       (1) the Internet connection or other transmission 
     capability through which the software was delivered to the 
     computer for installation;
       (2) the storage or hosting, at the direction of another 
     person and without selecting the content to be stored or 
     hosted, of the software or of an Internet website through 
     which the software was made available for installation; or
       (3) a link or reference to an Internet website the content 
     of which was selected and controlled by another person, and 
     through which the computer software was made available for 
     installation.
       (d) Software Resident in Temporary Memory.--In the case of 
     an installation of computer software that falls within the 
     meaning of section 7(10)(B) but not within the meaning of 
     section 7(10)(A), the requirements set forth in subsections 
     (a)(1), (b)(1), and (c) of section 3 shall not apply.
       (e) Features Activated by User Options.--In the case of an 
     information collection, advertising, distributed computing, 
     or settings modification feature that remains inactive or 
     turned off unless the user of the computer subsequently 
     selects certain optional settings or functions provided by 
     the computer software, the requirements of subsections (a)(2) 
     and (b)(2) of section 3 may be satisfied by providing the 
     applicable disclosure and obtaining the applicable consent at 
     the time the user selects the option that activates the 
     feature, rather than at the time of initial installation.

     SEC. 6. ADMINISTRATION AND ENFORCEMENT.

       (a) In General.--Except as provided in subsection (b), this 
     Act shall be enforced by the Commission as if the violation 
     of this Act were an unfair or deceptive act or practice 
     proscribed under section 18(a)(1)(B) of the Federal Trade 
     Commission Act (15 U.S.C. 57a(a)(1)(B)).
       (b) Enforcement by Certain Other Agencies.--Compliance with 
     this Act shall be enforced under--
       (1) section 8 of the Federal Deposit Insurance Act (12 
     U.S.C. 1818), in the case of--
       (A) national banks, and Federal branches and Federal 
     agencies of foreign banks, by the Office of the Comptroller 
     of the Currency;
       (B) member banks of the Federal Reserve System (other than 
     national banks), branches and agencies of foreign banks 
     (other than Federal branches, Federal agencies, and insured 
     State branches of foreign banks), commercial lending 
     companies owned or controlled by foreign banks, and 
     organizations operating under section 25 or 25A of the 
     Federal Reserve Act (12 U.S.C. 601 and 611), by the Board; 
     and
       (C) banks insured by the Federal Deposit Insurance 
     Corporation (other than members of the Federal Reserve 
     System) and insured State branches of foreign banks, by the 
     Board of Directors of the Federal Deposit Insurance 
     Corporation;
       (2) section 8 of the Federal Deposit Insurance Act (12 
     U.S.C. 1818), by the Director of the Office of Thrift 
     Supervision, in the case of a savings association the 
     deposits of which are insured by the Federal Deposit 
     Insurance Corporation;
       (3) the Federal Credit Union Act (12 U.S.C. 1751 et seq.) 
     by the National Credit Union Administration Board with 
     respect to any Federal credit union;
       (4) part A of subtitle VII of title 49, United States Code, 
     by the Secretary of Transportation with respect to any air 
     carrier or foreign air carrier subject to that part;
       (5) the Packers and Stockyards Act, 1921 (7 U.S.C. 181 et 
     seq.) (except as provided in section 406 of that Act (7 
     U.S.C. 226, 227)), by the Secretary of Agriculture with 
     respect to any activities subject to that Act; and
       (6) the Farm Credit Act of 1971 (12 U.S.C. 2001 et seq.) by 
     the Farm Credit Administration with respect to any Federal 
     land bank, Federal land bank association, Federal 
     intermediate credit bank, or production credit association.
       (c) Exercise of Certain Powers.--For the purpose of the 
     exercise by any agency referred to in subsection (b) of its 
     powers under any Act referred to in that subsection, a 
     violation of this Act is deemed to be a violation of a 
     requirement imposed under that Act. In addition to its powers 
     under any provision of law specifically referred to in 
     subsection (b), each of the agencies referred to in that 
     subsection may exercise, for the purpose of enforcing 
     compliance with any requirement imposed under this Act, any 
     other authority conferred on it by law.
       (d) Actions by the Commission.--The Commission shall 
     prevent any person from violating this Act in the same 
     manner, by the same means, and with the same jurisdiction, 
     powers, and duties as though all applicable terms and 
     provisions of the Federal Trade Commission Act (15 U.S.C. 41 
     et seq.) were incorporated into and made a part of this Act. 
     Any entity that violates any provision of that section is 
     subject to the penalties and entitled to the privileges and 
     immunities provided in the Federal Trade Commission Act in 
     the same manner, by the same means, and with the same 
     jurisdiction, power, and duties as though all applicable 
     terms and provisions of the Federal Trade Commission Act were 
     incorporated into and made a part of that section.
       (e) Preservation of Commission Authority.--Nothing 
     contained in this section shall be construed to 8 limit the 
     authority of the Commission under any other provision of law.

     SEC. 7. ACTIONS BY STATES.

       (a) In General.--
       (1) Civil actions.--In any case in which the attorney 
     general of a State has reason to believe that an interest of 
     the residents of that State has been or is threatened or 
     adversely affected by the engagement of any person in a 
     practice that this Act prohibits, the State, as parens 
     patriae, may bring a civil action on behalf of the residents 
     of the State in a district court of the United States of 
     appropriate jurisdiction--
       (A) to enjoin that practice;
       (B) to enforce compliance with the rule;

[[Page 2689]]

       (C) to obtain damage, restitution, or other compensation on 
     behalf of residents of the State; or
       (D) to obtain such other relief as the court may consider 
     to be appropriate.
       (2) Notice.--
       (A) In general.--Before filing an action under paragraph 
     (1), the attorney general of the State involved shall provide 
     to the Commission--
       (i) written notice of that action; and
       (ii) a copy of the complaint for that action.
       (B) Exemption.--
       (i) In general.--Subparagraph (A) shall not apply with 
     respect to the filing of an action by an attorney general of 
     a State under this subsection, if the attorney general 
     determines that it is not feasible to provide the notice 
     described in that subparagraph before the filing of the 
     action.
       (ii) Notification.--In an action described in clause (i), 
     the attorney general of a State shall provide notice and a 
     copy of the complaint to the Commission at the same time as 
     the attorney general files the action.
       (b) Intervention.--
       (1) In general.--On receiving notice under subsection 
     (a)(2), the Commission shall have the right to intervene in 
     the action that is the subject of the notice.
       (2) Effect of intervention.--If the Commission intervenes 
     in an action under subsection (a), it shall have the right--
       (A) to be heard with respect to any matter that arises in 
     that action; and
       (B) to file a petition for appeal.
       (c) Construction.--For purposes of bringing any civil 
     action under subsection (a), nothing in this subtitle shall 
     be construed to prevent an attorney general of a State from 
     exercising the powers conferred on the attorney general by 
     the laws of that State to--
       (1) conduct investigations;
       (2) administer oaths or affirmations; or
       (3) compel the attendance of witnesses or the production of 
     documentary and other evidence.
       (d) Actions by the Commission.--In any case in which an 
     action is instituted by or on behalf of the Commission for 
     violation of section 2 of this Act, no State may, during the 
     pendency of that action, institute an action under subsection 
     (a) against any defendant named in the complaint in that 
     action for violation of that section.
       (e) Venue; Service of Process.--
       (1) Venue.--Any action brought under subsection (a) may be 
     brought in the district court of the United States that meets 
     applicable requirements relating to venue under section 1391 
     of title 28, United States Code.
       (2) Service of process.--In an action brought under 
     subsection (a), process may be served in any district in 
     which the defendant--
       (A) is an inhabitant; or
       (B) may be found.

     SEC. 8. DEFINITIONS.

       In this Act:
       (1) Advertisement.--The term ``advertisement'' means a 
     commercial promotion for a product or service, but does not 
     include promotions for products or services that appear on 
     computer software help or support pages that are displayed in 
     response to a request by the user.
       (2) Advertising feature.--The term ``advertising feature'' 
     means a function of computer software that, when installed on 
     a computer, delivers advertisements to the user of that 
     computer.
       (3) Affirmative consent.--The term ``affirmative consent'' 
     means consent expressed through action by the user of a 
     computer other than default action specified by the 
     installation sequence and independent from any other consent 
     solicited from the user during the installation process.
       (4) Clear description.--The term ``clear description'' 
     means a description that is clear, conspicuous, concise, and 
     in a font size that is at least as large as the largest 
     default font displayed to the user by the software.
       (5) Computer software.--The term ``computer software''--
       (A) means any program designed to cause a computer to 
     perform a desired function or functions; and
       (B) does not include any cookie.
       (6) Cookie.--The term ``cookie'' means a text file--
       (A) that is placed on a computer by an Internet service 
     provider, interactive computer service, or Internet website; 
     and
       (B) the sole function of which is to record information 
     that can be read or recognized by an Internet service 
     provider, interactive computer service, or Internet website 
     when the user of the computer uses or accesses such provider, 
     service, or website.
       (7) Distributed computing feature.--The term ``distributed 
     computing feature'' means a function of computer software 
     that, when installed on a computer, transmits information or 
     messages, other than personal or network information about 
     the user of the computer, to any other computer without the 
     knowledge or direction of the user and for purposes unrelated 
     to the tasks or functions the user intentionally performs 
     using the computer.
       (8) First retail sale.--The term ``first retail sale'' 
     means the first sale of a computer, for a purpose other than 
     resale, after the manufacture, production, or importation of 
     the computer. For purposes of this paragraph, the lease of a 
     computer shall be considered a sale of the computer at 
     retail.
       (9) Information collection feature.--The term ``information 
     collection feature'' means a function of computer software 
     that, when installed on a computer, collects personal or 
     network information about the user of the computer and 
     transmits such information to any other party on an automatic 
     basis or at the direction of a party other than the user of 
     the computer.
       (10) Install.--The term ``install'' means--
       (A) to write computer software to a computer's persistent 
     storage medium, such as the computer's hard disk, in such a 
     way that the computer software is retained on the computer 
     after the computer is turned off and subsequently restarted; 
     or
       (B) to write computer software to a computer's temporary 
     memory, such as random access memory, in such a way that the 
     software is retained and continues to operate after the user 
     of the computer turns off or exits the Internet service, 
     interactive computer service, or Internet website from which 
     the computer software was obtained.
       (11) Network Information.--The term ``network information'' 
     means--
       (A) an Internet protocol address or domain name of a user's 
     computer;
       (B) a cookie or other unique identifier of a computer user 
     or a computer user's computer; or
       (C) a Uniform Resource Locator or other information that 
     identifies Internet web sites or other online resources 
     accessed by a user of a computer.
       (12) Personal information.--The term ``personal 
     information'' means--
       (A) a first and last name, whether given at birth or 
     adoption, assumed, or legally changed;
       (B) a home or other physical address including street name, 
     name of a city or town, and zip code;
       (C) an electronic mail address or online username;
       (D) a telephone number;
       (E) a social security number;
       (F) any personal identification number;
       (G) a credit card number, any access code associated with 
     the credit card, or both;
       (H) a birth date, birth certificate number, or place of 
     birth; or
       (I) any password or access code.
       (13) Person.--The term ``person'' has the meaning given 
     that term in section 3(32) of the Communications Act of 1934 
     (47 U.S.C. 153(32)).
       (14) Protected computer.--The term ``protected computer'' 
     has the meaning given that term in section 1030(e)(2)(B) of 
     title 18, United States Code.
       (15) Settings modification feature.--The term ``settings 
     modification feature'' means a function of computer software 
     that, when installed on a computer--
       (A) modifies an existing user setting, without direction 
     from the user of the computer, with respect to another 
     computer software application previously installed on that 
     computer; or
       (B) enables a user setting with respect to another computer 
     software application previously installed on that computer to 
     be modified in the future without advance notification to and 
     consent from the user of the computer.
       (16) User of a computer.--The term ``user of a computer'' 
     means an individual who operates a computer with the 
     authorization of the computer's lawful owner.

     SEC. 9. EFFECTIVE DATE.

       This Act shall take effect 180 days after the date of 
     enactment of this Act.
                                 ______
                                 
      By Mr. FEINGOLD (for himself, Mr. Corzine, Mrs. Clinton, Mr. 
        Lautenberg, Mr. Kennedy, Mr. Schumer, Mr. Durbin, Mr. Kerry, 
        Mrs. Boxer, Mr. Reid, Mr. Dodd, Ms. Cantwell, Ms. Mikulski, and 
        Mr. Edwards):
  S. 2132. A bill to prohibit racial profiling; to the Committee on the 
Judiciary.
  Mr. FEINGOLD. Mr. President, three years ago tomorrow, in his first 
address to a joint session of Congress, President Bush declared that 
racial profiling is wrong and pledged to end it in America. He then 
directed his Attorney General to implement this policy.
  It is now three years later, and the American people are still 
waiting for the President to follow through on his pledge to end racial 
profiling.
  So, today I join with Representative John Conyers, the distinguished 
ranking member of the House Judiciary Committee, in re-introducing the 
End Racial Profiling Act. We first introduced this bill in 2001, 
shortly after the President made his pledge and the Attorney General 
asserted that he would work with us on our legislation.
  The End Racial Profiling Act would do exactly what the President 
promised to do: it would ban racial profiling once and for all and 
require Federal, State, and local law enforcement to take steps to end 
and prevent racial profiling.

[[Page 2690]]

  I am very pleased that several of my distinguished colleagues have 
joined me on this bill Senators Corzine, Clinton, Lautenberg, Kennedy, 
Schumer, Durbin, Kerry, Boxer, Reid, Dodd, Cantwell, Mikulski, and 
Edwards.
  Racial profiling is the practice by which some law enforcement agents 
routinely stop African Americans, Latinos, Asian Americans, Arab 
Americans and others simply because of their race, ethnicity, or 
national origin. Reports in States from New Jersey to Florida, and 
Maryland to Texas all show that African Americans, Hispanics, and 
members of other minority groups are being stopped by some police far 
in excess of their share of the population and the rate at which they 
engage in criminal conduct.
  I might add that the urgency for legislation banning racial profiling 
is compounded by concerns post-September 11 that racial profiling--not 
good police work and following up on legitimate leads--is being used 
against Arab and Muslim Americans, or Americans perceived to be Arab or 
Muslim.
  The September 11 attacks were horrific and I share the determination 
of many Americans that finding those responsible and preventing future 
attacks should be this Nation's top priority. This is a challenge that 
our country can and must meet. But we need improved intelligence and 
law enforcement, not racial, ethnic or religious stereotypes, to 
protect our Nation from crime and future terrorist attacks.
  In fact, I believe that the End Racial Profiling Act is a pro-law 
enforcement bill. It will help to restore the trust and confidence of 
the communities our law enforcement have pledged to serve and protect. 
That confidence is crucial to our success in stopping crime, and in 
stopping terrorism. The End Racial Profiling Act is good for law 
enforcement and good for America.
  I'm very pleased that many state and local law enforcement officials 
stand with the sponsors of this bill in condemning racial profiling. 
Many law enforcement officials across the country agree that racial 
profiling is wrong and should not take place in America. In fact, many 
State and local law enforcement officials have begun to take steps to 
address the problem, or even the perception of a problem. For example, 
in my own State of Wisconsin, law enforcement officials have taken 
steps to train police officers, improve academy training, establish 
model policies prohibiting racial profiling, and improve relations with 
our State's diverse communities. I applaud the efforts of Wisconsin law 
enforcement.
  But the Federal Government has a vital role in protecting civil 
rights and acting as a model for State and local law enforcement. Last 
June, the Justice Department issued a policy guidance to Federal law 
enforcement agencies banning racial profiling. But while this guidance 
is a useful first step, it does not achieve the President's stated goal 
of ending racial profiling in America. It does not carry the force of 
law and does not apply to State and local law enforcement. Federal 
legislation is still very much needed.
  Our bill, the End Racial Profiling Act, would ban racial profiling 
and allow the Justice Department or individuals the ability to enforce 
this prohibition by filing a suit for injunctive relief. The bill would 
also require Federal, state, and local law enforcement agencies to 
adopt policies prohibiting racial profiling; to implement effective 
complaint procedures; to implement disciplinary procedures for officers 
who engage in the practice; and to collect data on stops. In addition, 
it requires the Attorney General to report to Congress to allow 
Congress and the American people to monitor whether the steps outlined 
in the bill to prevent and end racial profiling have been effective.
  Like the bill we introduced last Congress, the bill also authorizes 
the Attorney General to provide incentive grants to help law 
enforcement comply with the ban on racial profiling, including funds to 
conduct training of police officers or purchase in-car video cameras.
  Finally, we have revised the bill to conform with the definition of 
racial profiling in the Justice Department's guidance and to reflect 
concerns about racial profiling based on religion in a post-September 
11 America.
  Let me emphasize that local, State, and Federal law enforcement 
agents play a vital role in protecting the public from crime and 
protecting the Nation from terrorism. The vast majority of law 
enforcement agents nationwide discharge their duties professionally and 
without bias and we are all indebted to them for their courage and 
dedication. This bill should not be misinterpreted as a criticism of 
those who put their lives on the line for the rest of us every day. 
Rather, it is a statement that the use of race, ethnicity, religion, or 
national origin in deciding which persons should be subject to traffic 
stops, stops and frisks, questioning, searches, and seizures is wrong 
and ineffective, except where there is specific information linking 
persons of a particular race, ethnicity, religion, or national origin 
to a crime.
  Now, perhaps more than ever before, our Nation cannot afford to waste 
precious law enforcement resources or alienate Americans by tolerating 
discriminatory practices. It is past time for Congress and the 
President to enact comprehensive federal legislation that will end 
racial profiling once and for all.
  I urge the President to make good on his pledge to end racial 
profiling, and I urge my colleagues to join me in supporting the End 
Racial Profiling Act.
  I ask unanimous consent that the text of the bill be printed in the 
Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 2132

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

     SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

       (a) Short Title.--This Act may be cited as the ``End Racial 
     Profiling Act of 2004''.
       (b) Table of Contents.--The table of contents of this Act 
     is as follows:

Sec. 1. Short title; table of contents.
Sec. 2. Findings and purposes.

                TITLE I--PROHIBITION OF RACIAL PROFILING

Sec. 101. Prohibition.
Sec. 102. Enforcement.

    TITLE II--PROGRAMS TO ELIMINATE RACIAL PROFILING BY FEDERAL LAW 
                          ENFORCEMENT AGENCIES

Sec. 201. Policies to eliminate racial profiling.

 TITLE III--PROGRAMS TO ELIMINATE RACIAL PROFILING BY STATE AND LOCAL 
                        LAW ENFORCEMENT AGENCIES

Sec. 301. Policies required for grants.
Sec. 302. Best practices development grants.

  TITLE IV--DEPARTMENT OF JUSTICE REPORTS ON RACIAL PROFILING IN THE 
                             UNITED STATES

Sec. 401. Attorney General to issue reports on racial profiling in the 
              United States.
Sec. 402. Limitation on use of data.

           TITLE V--DEFINITIONS AND MISCELLANEOUS PROVISIONS

Sec. 501. Definitions.
Sec. 502. Severability.
Sec. 503. Savings clause.

     SEC. 2. FINDINGS AND PURPOSES.

       (a) Findings.--Congress finds the following:
       (1) Federal, State, and local law enforcement agents play a 
     vital role in protecting the public from crime and protecting 
     the Nation from terrorism. The vast majority of law 
     enforcement agents nationwide discharge their duties 
     professionally and without bias.
       (2) The use by police officers of race, ethnicity, 
     religion, or national origin in deciding which persons should 
     be subject to traffic stops, stops and frisks, questioning, 
     searches, and seizures is improper.
       (3) In his address to a Joint Session of Congress on 
     February 27, 2001, President George W. Bush declared that 
     ``racial profiling is wrong and we will end it in America.'' 
     He directed the Attorney General to implement this policy.
       (4) In June 2003, the Department of Justice issued a Policy 
     Guidance regarding racial profiling by Federal law 
     enforcement agencies which stated: ``Racial profiling in law 
     enforcement is not merely wrong, but also ineffective. Race-
     based assumptions in law enforcement perpetuate negative 
     racial stereotypes that are harmful to our rich and diverse 
     democracy, and materially impair our efforts to maintain a 
     fair and just society.''
       (5) The Department of Justice Guidance is a useful first 
     step, but does not achieve the President's stated goal of 
     ending racial profiling in America: it does not apply to 
     State and local law enforcement agencies,

[[Page 2691]]

     does not contain a meaningful enforcement mechanism, does not 
     require data collection, and contains an overbroad exception 
     for immigration and national security matters.
       (6) Current efforts by State and local governments to 
     eradicate racial profiling and redress the harms it causes, 
     while also laudable, have been limited in scope and 
     insufficient to address this national problem. Therefore, 
     Federal legislation is needed.
       (7) Statistical evidence from across the country 
     demonstrates that racial profiling is a real and measurable 
     phenomenon.
       (8) As of November 15, 2000, the Department of Justice had 
     14 publicly noticed, ongoing, pattern or practice 
     investigations involving allegations of racial profiling, and 
     had filed 5 pattern and practice lawsuits involving 
     allegations of racial profiling, with 4 of those cases 
     resolved through consent decrees.
       (9) A large majority of individuals subjected to stops and 
     other enforcement activities based on race, ethnicity, 
     religion, or national origin are found to be law abiding and 
     therefore racial profiling is not an effective means to 
     uncover criminal activity.
       (10) A 2001 Department of Justice report on citizen-police 
     contacts in 1999 found that, although African-Americans and 
     Hispanics were more likely to be stopped and searched, they 
     were less likely to be in possession of contraband. On 
     average, searches and seizures of African-American drivers 
     yielded evidence only 8 percent of the time, searches and 
     seizures of Hispanic drivers yielded evidence only 10 percent 
     of the time, and searches and seizures of white drivers 
     yielded evidence 17 percent of the time.
       (11) A 2000 General Accounting Office report on the 
     activities of the United States Customs Service during fiscal 
     year 1998 found that--
       (A) black women who were United States citizens were 9 
     times more likely than white women who were United States 
     citizens to be x-rayed after being frisked or patted down;
       (B) black women who were United States citizens were less 
     than half as likely as white women who were United States 
     citizens to be found carrying contraband; and
       (C) in general, the patterns used to select passengers for 
     more intrusive searches resulted in women and minorities 
     being selected at rates that were not consistent with the 
     rates of finding contraband.
       (12) In some jurisdictions, local law enforcement practices 
     such as ticket and arrest quotas, and similar management 
     practices, may have the unintended effect of encouraging law 
     enforcement agents to engage in racial profiling.
       (13) Racial profiling harms individuals subjected to it 
     because they experience fear, anxiety, humiliation, anger, 
     resentment, and cynicism when they are unjustifiably treated 
     as criminal suspects. By discouraging individuals from 
     traveling freely, racial profiling impairs both interstate 
     and intrastate commerce.
       (14) Racial profiling damages law enforcement and the 
     criminal justice system as a whole by undermining public 
     confidence and trust in the police, the courts, and the 
     criminal law.
       (15) In the wake of the September 11, 2001, terrorist 
     attacks, many Arabs, Muslims, Central and South Asians, and 
     Sikhs, as well as other immigrants and Americans of foreign 
     descent, were treated with generalized suspicion and 
     subjected to searches and seizures based upon religion and 
     national origin, without trustworthy information linking 
     specific individuals to criminal conduct. Such profiling has 
     failed to produce tangible benefits, yet has created a fear 
     and mistrust of law enforcement agencies in these 
     communities.
       (16) Racial profiling violates the equal protection clause 
     of the Constitution. Using race, ethnicity, religion, or 
     national origin as a proxy for criminal suspicion violates 
     the constitutional requirement that police and other 
     government officials accord to all citizens the equal 
     protection of the law. Arlington Heights v. Metropolitan 
     Housing Development Corporation, 429 U.S. 252 (1977).
       (17) Racial profiling is not adequately addressed through 
     suppression motions in criminal cases for two reasons. First, 
     the Supreme Court held, in Whren v. United States, 517 U.S. 
     806 (1996), that the racially discriminatory motive of a 
     police officer in making an otherwise valid traffic stop does 
     not warrant the suppression of evidence. Second, since most 
     stops do not result in the discovery of contraband, there is 
     no criminal prosecution and no evidence to suppress.
       (18) A comprehensive national solution is needed to address 
     racial profiling at the Federal, State, and local levels. 
     Federal support is needed to combat racial profiling through 
     specialized training of law enforcement agents, improved 
     management systems, and the acquisition of technology such as 
     in-car video cameras.
       (b) Purposes.--The purposes of this Act are--
       (1) to enforce the constitutional right to equal protection 
     of the laws, pursuant to the Fifth Amendment and section 5 of 
     the 14th Amendment to the Constitution of the United States;
       (2) to enforce the constitutional right to protection 
     against unreasonable searches and seizures, pursuant to the 
     Fourth Amendment to the Constitution of the United States;
       (3) to enforce the constitutional right to interstate 
     travel, pursuant to section 2 of article IV of the 
     Constitution of the United States; and
       (4) to regulate interstate commerce, pursuant to clause 3 
     of section 8 of article I of the Constitution of the United 
     States.

                TITLE I--PROHIBITION OF RACIAL PROFILING

     SEC. 101. PROHIBITION.

       No law enforcement agent or law enforcement agency shall 
     engage in racial profiling.

     SEC. 102. ENFORCEMENT.

       (a) Remedy.--The United States, or an individual injured by 
     racial profiling, may enforce this title in a civil action 
     for declaratory or injunctive relief, filed either in a State 
     court of general jurisdiction or in a district court of the 
     United States.
       (b) Parties.--In any action brought pursuant to this title, 
     relief may be obtained against--
       (1) any governmental unit that employed any law enforcement 
     agent who engaged in racial profiling;
       (2) any agent of such unit who engaged in racial profiling; 
     and
       (3) any person with supervisory authority over such agent.
       (c) Nature of Proof.--Proof that the routine or spontaneous 
     investigatory activities of law enforcement agents in a 
     jurisdiction have had a disparate impact on racial, ethnic, 
     or religious minorities shall constitute prima facie evidence 
     of a violation of this title.
       (d) Attorney's Fees.--In any action or proceeding to 
     enforce this title against any governmental unit, the court 
     may allow a prevailing plaintiff, other than the United 
     States, reasonable attorney's fees as part of the costs, and 
     may include expert fees as part of the attorney's fee.

    TITLE II--PROGRAMS TO ELIMINATE RACIAL PROFILING BY FEDERAL LAW 
                          ENFORCEMENT AGENCIES

     SEC. 201. POLICIES TO ELIMINATE RACIAL PROFILING.

       (a) In General.--Federal law enforcement agencies shall--
       (1) maintain adequate policies and procedures designed to 
     eliminate racial profiling; and
       (2) cease existing practices that encourage racial 
     profiling.
       (b) Policies.--The policies and procedures described in 
     subsection (a)(1) shall include--
       (1) a prohibition on racial profiling;
       (2) the collection of data on routine investigatory 
     activities sufficient to determine if law enforcement agents 
     are engaged in racial profiling and submission of that data 
     to the Attorney General;
       (3) independent procedures for receiving, investigating, 
     and responding meaningfully to complaints alleging racial 
     profiling by law enforcement agents of the agency;
       (4) procedures to discipline law enforcement agents who 
     engage in racial profiling; and
       (5) such other policies or procedures that the Attorney 
     General deems necessary to eliminate racial profiling.

 TITLE III--PROGRAMS TO ELIMINATE RACIAL PROFILING BY STATE AND LOCAL 
                        LAW ENFORCEMENT AGENCIES

     SEC. 301. POLICIES REQUIRED FOR GRANTS.

       (a) In General.--An application by a State or governmental 
     unit for funding under a covered program shall include a 
     certification that such unit and any agency to which it is 
     redistributing program funds--
       (1) maintains adequate policies and procedures designed to 
     eliminate racial profiling; and
       (2) has ceased any existing practices that encourage racial 
     profiling.
       (b) Policies.--The policies and procedures described in 
     subsection (a) shall include--
       (1) a prohibition on racial profiling;
       (2) the collection of data on routine investigatory 
     activities sufficient to determine if law enforcement agents 
     are engaged in racial profiling, and submission of that data 
     to the Attorney General;
       (3) independent procedures for receiving, investigating, 
     and responding meaningfully to complaints alleging racial 
     profiling by law enforcement agents;
       (4) procedures to discipline law enforcement agents who 
     engage in racial profiling; and
       (5) such other policies or procedures that the Attorney 
     General deems necessary to eliminate racial profiling.
       (c) Noncompliance.--If the Attorney General determines that 
     a grantee is not in compliance with conditions established 
     under this title, the Attorney General shall withhold the 
     grant, in whole or in part, until the grantee establishes 
     compliance. The Attorney General shall provide notice 
     regarding State grants and opportunities for private parties 
     to present evidence to the Attorney General that a grantee is 
     not in compliance with conditions established under this 
     title.

     SEC. 302. BEST PRACTICES DEVELOPMENT GRANTS.

       (a) Grant Authorization.--The Attorney General may make 
     grants to States, law enforcement agencies and other 
     governmental units, Indian tribal governments, or other 
     public and private entities, to develop and implement best 
     practice devices and systems

[[Page 2692]]

     to ensure the racially neutral administration of justice.
       (b) Uses.--The funds provided pursuant to subsection (a) 
     may be used to support--
       (1) development and implementation of training to prevent 
     racial profiling and to encourage more respectful interaction 
     with the public;
       (2) acquisition and use of technology to facilitate the 
     collection of data regarding routine investigatory activities 
     in order to determine if law enforcement agents are engaged 
     in racial profiling;
       (3) acquisition and use of technology to verify the 
     accuracy of data collection, including in-car video cameras 
     and portable computer systems;
       (4) development and acquisition of early warning systems 
     and other feedback systems that help identify officers or 
     units of officers engaged in or at risk of racial profiling 
     or other misconduct, including the technology to support such 
     systems;
       (5) establishment or improvement of systems and procedures 
     for receiving, investigating, and responding meaningfully to 
     complaints alleging racial, ethnic, or religious bias by law 
     enforcement agents; and
       (6) establishment or improvement of management systems to 
     ensure that supervisors are held accountable for the conduct 
     of their subordinates.
       (c) Equitable Distribution.--The Attorney General shall 
     ensure that grants under this section are awarded in a manner 
     that reserves an equitable share of funding for small and 
     rural law enforcement agencies.
       (d) Authorization of Appropriations.--The Attorney General 
     shall make available such sums as are necessary to carry out 
     this section from amounts appropriated for programs 
     administered by the Attorney General.

  TITLE IV--DEPARTMENT OF JUSTICE REPORTS ON RACIAL PROFILING IN THE 
                             UNITED STATES

     SEC. 401. ATTORNEY GENERAL TO ISSUE REPORTS ON RACIAL 
                   PROFILING IN THE UNITED STATES.

       (a) Reports.--
       (1) In general.--Not later than 2 years after the enactment 
     of this Act, and each year thereafter, the Attorney General 
     shall submit to Congress a report on racial profiling by 
     Federal, State, and local law enforcement agencies in the 
     United States.
       (2) Scope.--The reports issued pursuant to paragraph (1) 
     shall include--
       (A) a summary of data collected pursuant to sections 
     201(b)(2) and 301(b)(2) and any other reliable source of 
     information regarding racial profiling in the United States;
       (B) the status of the adoption and implementation of 
     policies and procedures by Federal law enforcement agencies 
     pursuant to section 201;
       (C) the status of the adoption and implementation of 
     policies and procedures by State and local law enforcement 
     agencies pursuant to sections 301 and 302; and
       (D) a description of any other policies and procedures that 
     the Attorney General believes would facilitate the 
     elimination of racial profiling.
       (b) Data Collection.--Not later than 6 months after the 
     enactment of this Act, the Attorney General shall by 
     regulation establish standards for the collection of data 
     under sections 201(b)(2) and 301(b)(2), including standards 
     for setting benchmarks against which collected data shall be 
     measured. Such standards shall result in the collection of 
     data, including data with respect to stops, searches, 
     seizures, and arrests, that is sufficiently detailed to 
     determine whether law enforcement agencies are engaged in 
     racial profiling and to monitor the effectiveness of policies 
     and procedures designed to eliminate racial profiling.
       (c) Public Access.--Data collected under sections 201(b)(2) 
     and 301(b)(2) shall be available to the public.

     SEC. 402. LIMITATION ON USE OF DATA.

       Information released pursuant to section 401 shall not 
     reveal the identity of any individual who is detained or any 
     law enforcement officer involved in a detention.

           TITLE V--DEFINITIONS AND MISCELLANEOUS PROVISIONS

     SEC. 501. DEFINITIONS.

       In this Act:
       (1) Covered program.--The term ``covered program'' means 
     any program or activity funded in whole or in part with funds 
     made available under--
       (A) the Edward Byrne Memorial State and Local Law 
     Enforcement Assistance Programs (part E of title I of the 
     Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C. 
     3750 et seq.));
       (B) the ``Cops on the Beat'' program under part Q of title 
     I of the Omnibus Crime Control and Safe Streets Act of 1968 
     (42 U.S.C. 3796dd et seq.), but not including any program, 
     project, or other activity specified in section 1701(d)(8) of 
     that Act (42 U.S.C. 3796dd(d)(8)); and
       (C) the Local Law Enforcement Block Grant program of the 
     Department of Justice, as described in appropriations Acts.
       (2) Governmental unit.--The term ``governmental unit'' 
     means any department, agency, special purpose district, or 
     other instrumentality of Federal, State, local, or Indian 
     tribal government.
       (3) Law enforcement agency.--The term ``law enforcement 
     agency'' means a Federal, State, local, or Indian tribal 
     public agency engaged in the prevention, detection, or 
     investigation of violations of criminal, immigration, or 
     customs laws.
       (4) Law enforcement agent.--The term ``law enforcement 
     agent'' means any Federal, State, local, or Indian tribal 
     official responsible for enforcing criminal, immigration, or 
     customs laws, including police officers and other agents of 
     Federal, State, and local law enforcement agencies.
       (5) Racial profiling.--The term ``racial profiling'' means 
     the practice of a law enforcement agent relying, to any 
     degree, on race, ethnicity, religion, or national origin in 
     selecting which individuals to subject to routine or 
     spontaneous investigatory activities, or in deciding upon the 
     scope and substance of law enforcement activity following the 
     initial investigatory procedure, except when there is 
     trustworthy information, relevant to the locality and 
     timeframe, that links persons of a particular race, 
     ethnicity, religion, or national origin to an identified 
     criminal incident or scheme.
       (6) Routine or spontaneous investigatory activities.--The 
     term ``routine or spontaneous investigatory activities'' 
     means the following activities by law enforcement agents: 
     interviews; traffic stops; pedestrian stops; frisks and other 
     types of body searches; consensual or nonconsensual searches 
     of the persons or possessions (including vehicles) of 
     motorists or pedestrians; inspections and interviews of 
     entrants into the United States that are more extensive than 
     those customarily carried out; immigration related workplace 
     investigations; and such other types of law enforcement 
     encounters compiled by the FBI and the Justice Department's 
     Bureau of Justice Statistics.

     SEC. 502. SEVERABILITY.

       If any provision of this Act or the application of such 
     provision to any person or circumstance is held to be 
     unconstitutional, the remainder of this Act and the 
     application of the provisions of such to any person or 
     circumstance shall not be affected thereby.

     SEC. 503. SAVINGS CLAUSE.

       Nothing in this Act shall be construed to limit legal or 
     administrative remedies under section 1979 of the Revised 
     Statutes of the United States (42 U.S.C. 1983), section 
     210401 of the Violent Crime Control and Law Enforcement Act 
     of 1994 (42 U.S.C. 14141), the Omnibus Crime Control and Safe 
     Streets Act of 1968 (42 U.S.C. 3701 et seq.), and title VI of 
     the Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.).

  Mr. CORZINE. Mr. President, I am very pleased to be joining my 
colleague Senator Russell Feingold and 12 others in reintroducing the 
End Racial Profiling Act.
  I first want to recognize Senator Russ Feingold who has been a 
tremendous leader on this issue--during the last two sessions he held 
the first Senate hearings on racial profiling and he and his staff have 
worked tirelessly to elevate the importance of this issue as a matter 
of civil rights. I also want to commend Representative John Conyers, 
who is introducing companion legislation in the House of 
Representatives today. This is just on example of his indefatigable 
work to address inequities in our society. I also want to thank 
Reverend Reginald Jackson, Executive Director of the New Jersey Black 
Ministers' Council. He and the entire council have worked tirelessly 
for years to address the issue of racial profiling in New Jersey and 
have provided immeasurable assistance in crafting this legislation.
  The practice of racial profiling is the antithesis of America's 
belief in fairness and equal protection under the law.
  Stopping people on our highways, our streets, and at our borders 
because of the color of their skin tears at the very fabric of American 
society.
  We are a Nation of laws and everyone should receive equal protection 
under the law. Our Constitution tolerates nothing less. We should 
demand nothing less.
  There is no equal protection--there is no equal justice--if law 
enforcement agencies engage in policies and practices that are premised 
on a theory that the way to stop crime is to go after black and brown 
people on the hunch that they are more likely to be criminals.
  Let me add, that not only is racial profiling wrong, it is simply not 
an effective law enforcement tool. There is no evidence that stopping 
people of color adds up to catching bad guys.
  In fact, there is statistical evidence which points out that singling 
out black motorist or Hispanic motorists

[[Page 2693]]

for stops and searches doesn't lead to a higher percentage of arrests. 
Minority motorists are simply no more likely to be breaking the law 
than white motorists.
  But unfortunately racial profiling persists.
  In 2001, minority motorists accounted for 73 percent of those 
searched on the New Jersey turnpike. But even the State Attorney 
General admitted that State troopers were twice--I repeat twice--as 
likely to find drugs or other illegal items when searching vehicles 
driven by whites.
  Or take the example of the March 2000 Government Accounting Office 
report on the U.S. Customs Service.
  The report found that black, Asian, and Hispanic women were four to 
nine times more likely than white women to be subjected to X rays after 
being frisked or patted down.
  But on the basis of the X ray results, black women were less than 
half as likely as white women to be found carrying contraband.
  This is law enforcement by hunch. No warrants. No probable cause.
  And what is the hunch based on?
  Race--plain and simple.
  No where was this more evident, than in my own home State six years 
ago.
  Four young men on the New Jersey Turnpike in a minivan--on their way 
to North Carolina, hoping to go to school on basketball scholarships.
  Two State troopers pulled them off the road, the frightened driver 
lost control of the van, two dozens shots rang out. Three of the four 
kids were shot.
  I spoke to these kids a while ago. One of the them told me he was 
asleep when the van was pulled over.
  He told me, ``What woke me up was a bullet.''
  Stories like this should wake us all up.
  The practice of racial profiling broadly undermines the confidence of 
the American people in the institutions that we depend on to protect 
and defend us. Different rules for different people do not work.
  Now--We know that many law enforcement agencies, including some from 
my home State, have acknowledged the danger of the practice and have 
taken steps to combat it. Indeed, I am proud to report that New Jersey 
has banned racial profiling. I commend them for their efforts.
  That said, it is clear that this is a national problem that requires 
a national response applicable to all.
  That is why Senator Feingold and I and many others introduced the End 
Racial Profiling Act in 2001 to end this practice. The legislation 
provided a clear, enforceable ban on racial profiling and established a 
``carrot and stick'' approach to encourage law enforcement to take 
steps to end the practice.
  The legislation helped bring much-needed attention to this critical 
issue and was positively received by the civil rights community and 
many in law enforcement. Soon after introduction, Senator Feingold held 
very informative hearings on the bill, at which I testified. We heard 
from several law enforcement leaders, including Oakland Police Chief 
Ronald Davis and Raymond Kelly, former Commissioner of the U.S. Customs 
Service and the New York City Police Department, on the pernicious 
impact of racial profiling on the trust between law enforcement and 
communities that is essential for successful police work. They 
testified that racial profiling is contrary to effective law 
enforcement and indeed takes energy and focus away from finding real 
criminals.
  Then, in June 2003, the U.S. Department of Justice issued guidelines 
to prohibit racial profiling by federal law enforcement agencies, 
following up on President Bush's statement in his February 27, 2001, 
address to a Joint Session of Congress, that racial profiling is 
``wrong and we will end it in America.''
  In this guidance, the Department stated:

       Racial profiling in law enforcement is not merely wrong, 
     but also ineffective. Race-based assumptions in law 
     enforcement perpetuate negative racial stereotypes that are 
     harmful to our rich and diverse democracy, and materially 
     impair our efforts to maintain a fair and just society.

  These guidelines, as well as current efforts by State and local 
governments, to eradicate racial profiling and redress the harms it 
causes, while laudable, have been limited in scope and insufficient to 
address this national problem. Quite simply, federal legislation is 
still very much needed.
  In most respects the legislation we are now introducing today is very 
similar to the bill that we introduced in 2001.
  It clearly defines racial profiling and bans it.
  No routine stops based solely on race, religion, national origin or 
ethnicity. Religion is a new addition to the category of protected 
classes, in acknowledgment of some of the new law enforcement tactics 
developed after the September 11, 2001, terrorist attacks. For example, 
in the wake of the attacks, Arab-American, Muslim-American, South 
Asian-American and Sikh-American communities were made the target of 
generalized suspicion and subjected to searches and seizures based upon 
their religion and national origin, which has created a fear and 
mistrust of law enforcement agencies and failed to produce tangible 
investigative benefit.
  We will also require the collection of statistics to accurately 
measure whether progress is being made. By collecting this data, we 
will get a fair picture of law enforcement at work. And we will provide 
law enforcement with the information they need to detect problems early 
on.
  It is not our intention to micromanage law enforcement. Our bill does 
not tell law enforcement agencies what data should be collected. 
Instead, we direct the Attorney General to develop the standards for 
data collection, and he presumably would work with law enforcement in 
developing those standards. Our legislation also specifically directs 
the Attorney General to also establish standards for setting benchmarks 
against which the collected data should be measured--so that no data is 
taken out of context, as some in law enforcement rightly fear.
  If the numbers reveal a portrait of continued racial profiling, then 
the Justice Department or independent third parties can seek relief in 
Federal court ordering that remedies be put into effect to end racial 
profiling.
  Our bill would also put in place procedures to receive and 
investigate complaints alleging racial profiling.
  It will require procedures to discipline law enforcement officers 
engaging in racial profiling.
  Finally, we will encourage a climate of cultural change in law 
enforcement with a carrot and a stick.
  First, the carrot: We recognize that law enforcement shouldn't be 
expected to do this alone. So we are saying that if you do the job 
right--fairly and equitably--you can be eligible to receive a best 
practices development grant--to help pay for programs dealing with 
advanced training.
  To help pay for the computer technology that is necessary to collect 
the data and statistics we have demanded.
  We'll help pay for video cameras and recorders for your patrol cars.
  We'll help pay for establishing or improving systems for handling 
complaints alleging ethnic or racial profiling.
  We'll help to establish management systems to ensure that supervisors 
are held accountable for the conduct of subordinates.
  But if you don't do the job right, there is the stick. If State and 
local law enforcement agencies refuse to implement procedures to end 
and prevent profiling, they will be subject to a loss of Federal law 
enforcement funds.
  Let me be clear, this bill is not about blaming law enforcement, and 
it is not designed to prevent law enforcement from doing its job. In 
fact, we believe that it will help our officers maintain the public 
trust they need to do their jobs.
  If race is a part of a description of a specific suspect involved in 
an investigation, this law does not prevent that information from being 
distributed. But stopping people on a random or race-based hunch will 
be outlawed. Race has been a never-ending battle in

[[Page 2694]]

this country. It began with our constitution, when the founding fathers 
argued over the rights of slaves. And then we fought a war over race. 
We fought a war that ripped our country apart.
  Our country emerged whole, but discrimination continued for decades--
discrimination sanctioned in part, unfortunately, by our own Supreme 
Court.
  But our country's history has always been about change, about growth, 
about recognizing those things that weaken us from within.
  A generation ago, we began to fight another war--a war founded in 
peaceful principles, but a war that killed our heroes, burned our 
cities, and shook us once again to the very core.
  But we advanced, with important civil rights initiatives like the 
Voting Rights Act. Like the public accommodations law. We demanded and 
gained laws to fight discrimination in employment, in housing, in 
education. Today, it is time for us to take another step. Racial 
profiling has bred humiliation, anger, resentment and cynicism 
throughout this country. It has weakened respect for the law--by 
everyone, not just those offended.
  Simply put--it is wrong and we must end it. Today we pledge to do 
just that--to define it, to ban it, and to enforce that ban.
                                 ______
                                 
      By Mrs. FEINSTEIN (for herself, Mr. Campbell, Mr. Domenici, and 
        Mr. Smith):
  S. 2134. A bill to authorize the Secretary of Agriculture and the 
Secretary of the Interior to enter into an agreement or contract with 
Indian tribes meeting certain criteria to carry out projects to protect 
Indian forest land; to the Committee on Indian Affairs.
  Mrs. FEINSTEIN. Mr. President, I am pleased to introduce a bipartisan 
bill today that gives Native American tribes a chance to protect their 
reservation lands from catastrophic fire. I want to thank my 
cosponsors, Chairman Pete Domenici of the Energy and Natural Resources 
Committee, and Chairman Ben Nighthorse Campbell of the Committee on 
Indian Affairs.
  Like other Americans, many Native American tribes are concerned about 
the risk of catastrophic forest fires spreading from nearby Federal 
lands onto their own lands. Last summer, at least 18 reservations were 
invaded by fire from adjacent Federal public forest lands.
  This bill attempts to give the tribes a chance to defend themselves 
and their ancestral lands by involving them in brush-clearing projects 
on Federal lands near their reservations.
  This is not just a theoretical problem, as tribes from my State know 
all too well.
  Last fall's devastating wildfires in southern California caused 
disproportionate suffering for Native Americans: Over 30,000 acres 
burned on 11 tribal reservations. Most tragically, 10 lives were lost 
on or near reservations.
  I am determined to give the tribes of my State and from around the 
country the opportunity to prevent this tragedy from recurring: The 
bill sets up a process for the Forest Service or the Bureau of Land 
Management to enter into contracts with the tribes for fuel reduction 
purposes. If a tribe requests a brush-clearing project on federal lands 
near its reservation, the agencies are encouraged to respond within 
specific timeframes and suggest remedies for any agency concerns with 
the tribe's proposal. There remains free and open competition for 
timber contracts on Federal land. However, in determining the 
recipients of the contracts, the agencies are encouraged to consider 
such factors as tribal treaty rights or cultural and historical 
affiliation to the land involved.
  Nearly 100 Native American tribes support this legislation, including 
most, if not all, the tribes in the State of California.
  So I am pleased to introduce this bill today, and I hope my 
colleagues will support it.
                                 ______
                                 
      By Mrs. MURRAY (for herself and Ms. Cantwell):
  S. 2135. A bill to amend title XVIII of the Social Security Act to 
improve the provision of items and services provided to Medicare 
beneficiaries residing in rural areas; to the Committee on Finance.
  Mrs. MURRAY. Mr. President, I rise today to again join my colleague, 
Senator Cantwell, in introducing the MediFair Act of 2004. My bill will 
restore fairness to the Medicare program and provide equity for health 
care providers participating in Medicare. Most importantly, it will 
open doors of care to more seniors and the disabled in my State.
  Today, unfair Medicare reimbursement rates are causing doctors to 
limit their care for Medicare beneficiaries. Throughout my State, 
seniors and the disabled are having a hard time finding a doctor who 
will accept new Medicare patients.
  Unfortunately, the recently-passed Medicare Prescription Drug, 
Improvement and Modernization Act of 2003 further compromises health 
care in Washington State because it reduces Washington State's per 
beneficiary payments from 42nd to 45th nationwide. This reduction 
places health care providers in my State at an economic disadvantage 
and further limits access to health care in Washington State.
  My bill will reduce the regional inequities that have resulted in 
vastly different levels of care and access to care by ensuring that 
every State receives at least the national average of per-patient 
spending. This measure will encourage more doctors to accept Medicare 
patients and will also guarantee that seniors are not penalized when 
they choose to retire in the State of Washington.
  In addition to ensuring that no State receives less than the national 
average, my legislation will encourage healthy outcomes and efficient 
use of Medicare payments. The current Medicare system punishes health 
care providers who practice efficient healthcare and healthy outcomes. 
Physicians and hospitals in my State are proud of the pioneering role 
they have played in providing high quality, cost effective medicine. 
Unfortunately, they have been rewarded for their exceptional service by 
being paid a fraction of their actual costs.
  On the other hand, States that are inefficient and that over-utilize 
the system are rewarded with higher states of reimbursement. As we 
grapple with an ever-increasing budget deficit. We need to make sure 
that every dollar spent on Medicare is used as effectively as possible. 
I ask each and every one of my colleagues to join me in restoring 
fairness to the Medicare program and increasing access to health care 
for Medicare beneficiaries by supporting the MediFair Act.
  I want to acknowledge the lead sponsor of the MediFair bill in the 
House, Representative Adam Smith, as well as the other cosponsors, 
Representative Baird, Representative Dicks, Representative Inslee, 
Representative Larsen, and Representative McDermott.
  I have been working on addressing the issue of inequitable Medicare 
reimbursement policies for a number of years, and I am pleased that we 
have made inroads in addressing this issue. I especially appreciate the 
efforts by the Department of Health and Human Services (HHS) to reward 
healthy outcomes, and I look forward to working with HHS in the future 
to meet these goals.
  Medicare should reward States like Washington that have a proven 
tradition of efficient and effective health care. Passing the MediFair 
Act will go a long way to improving health care access for seniors in 
States like Washington and ensuring that Federal health care dollars 
produce the best results possible for our patients.
                                 ______
                                 
      By Mr. ROBERTS:
  S. 2136. An original bill to extend the final report date and 
termination date of the National Commission on Terrorist Attacks Upon 
the United States, to provide additional funding for the Commission, 
and for other purposes; from the Select Committee on Intelligence; 
placed on the calendar.
  Mr. ROBERTS. Mr. President, I ask unanimous consent that the text of 
the bill be printed in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

[[Page 2695]]



                                S. 2136

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

     SECTION 1. EXTENSION OF NATIONAL COMMISSION ON TERRORIST 
                   ATTACKS UPON THE UNITED STATES.

       (a) Final Report Date.--Subsection (b) of section 610 of 
     the Intelligence Authorization Act for Fiscal Year 2003 
     (Public Law 107-306; 6 U.S.C. 101 note; 116 Stat. 2413) is 
     amended by striking ``18 months'' and inserting ``20 
     months''.
       (b) Termination Date.--Subsection (c) of that section is 
     amended--
       (1) in paragraph (1), by striking ``60 days'' and inserting 
     ``30 days''; and
       (2) in paragraph (2), by striking ``60-day period'' and 
     inserting ``30-day period''.
       (c) Additional Funding.--Section 611 of that Act (6 U.S.C. 
     101 note; 116 Stat. 2413) is amended--
       (1) by redesignating subsection (b) as subsection (c);
       (2) by inserting after subsection (a) the following new 
     subsection (b):
       ``(b) Additional Funding.--In addition to the amounts made 
     available to the Commission under subsection (a) and under 
     chapter 2 of title II of the Emergency Wartime Supplemental 
     Appropriations Act, 2003 (Public Law 108-11; 117 Stat. 591), 
     of the amounts appropriated for the programs and activities 
     of the Federal Government for fiscal year 2004 that remain 
     available for obligation, not more than $1,000,000 shall be 
     available for transfer to the Commission for purposes of the 
     activities of the Commission under this title.''; and
       (3) in subsection (c), as so redesignated, by striking 
     ``subsection (a)'' and inserting ``this section''.
                                 ______
                                 
      By Mrs. CLINTON:
  S. 2139. A bill to provide coverage under the Energy Employees 
Occupational Illness Compensation Program for individuals employed at 
atomic weapons employer facilities during periods of residual 
contamination; to the Committee on Health, Education, Labor, and 
Pensions.
  Mrs. CLINTON. Mr. President, I rise to introduce an important piece 
of legislation to assist our atomic weapons workers. The legislation 
addresses a major flaw in the Energy Employees Occupational Illness 
Compensation Program by expanding eligibility for benefits.
  Under the Energy Employees Occupational Illness Compensation Program 
Act (EEOICPA), workers are eligible for a payment of $150,000 and 
medical coverage for expenses associated with the treatment of diseases 
contracted due to exposure to radiation at atomic weapons plants. 
However, under EEOICPA, workers who became sick from working in 
contaminated atomic weapons plants after weapons production ceased are 
not eligible for benefits.
  In 2003, the National Institute of Occupational Safety and Health 
released a Congressionally-mandated report, entitled `` Report on 
Residual Radioactive and Beryllium Contamination in Atomic Weapons 
Employer and Beryllium Vendor Facilities.'' The report concluded that 
``significant'' residual radioactive contamination existed in many of 
these plants for years and decades after weapons production ceased, 
posing a risk of radiation-related cancers or disease to unknowing 
workers.
  In fact, the report found that: 97, 44 percent, of covered facilities 
have potential for significant residual radioactive contamination 
outside of the periods in which atomic weapons-related production 
occurred; 88, 40 percent, of such facilities have little potential for 
significant residual radioactive contamination outside of the periods 
in which atomic weapons-related production occurred; and 34, 16 
percent, of such facilities have insufficient information to make a 
determination.
  In my State of New York, 16 of 31 covered facilities were found to 
have the potential for significant contamination, 10 had little 
potential for significant contamination, and 5 of the 31 had 
insufficient information.
  In other words, more than half of the New York Atomic Weapons 
Employer Facilities in New York were contaminated after weapons 
production ceased. As a result, workers were exposed to radiation, and 
deserve to be eligible for benefits under EEOICPA.
  That is why I am introducing the Residual Radioactive Contamination 
Compensation Act (RRCCA) today. The bill would extend eligibility for 
benefits under EEOICPA to workers who were employed at facilities where 
NIOSH has found potential for significant radioactive contamination.
  In addition to expanding eligibility to workers employed at 
facilities where NIOSH has found potential for significant radioactive 
contamination, the Residual Radioactive Contamination Compensation Act 
would require NIOSH to update the list of such facilities annually. 
This addresses the fact that there was insufficient information for 
NIOSH to characterize a number of sites in its 2003 report.
  I would also like to take the opportunity to draw attention to 
another important issue--the special cohort rule. Under EEOICPA, the 
Department of Health and Human Services was to establish procedures so 
that workers can petition the government to be included in a ``special 
cohort''--meaning that they would be eligible for the program--if their 
radiation doses are difficult to estimate but it is likely that they 
have radiation-caused illnesses. Despite this important mandate, the 
letter notes that ``. . . nearly 39 months after EEOICPA was signed 
into law, the promise of ``timely, uniform and adequate compensation'' 
has not been met.
  As a result, I sent a letter to Secretary Thompson, along with 
Senator Voinovich and 16 of my other Senate colleagues--Senators 
Harkin, Kennedy, Schumer, Murray, DeWine, Alexander, Craig, Bond, and 
Talent, Reid, Grassley, Hollings, Cantwell, Domenici, Campbell, and 
Bingaman. The letter requested that the Secretary immediately put out 
the special cohort rule. I ask unanimous consent that a copy of that 
letter be printed in the Record.
  More than two weeks after the letter was sent, I have still not 
received a response. This is unacceptable. The Administration seems to 
have no sense of urgency in addressing this issue. But each day that 
passes only delays long overdue justice for the Cold War heroes who 
worked in our weapons facilities.
  I ask unanimous consent that the text of the Residual Radioactive 
Contamination Compensation Act be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                                February 11, 2004.
     Hon. Tommy G. Thompson,
     Secretary, U.S. Department of Health and Human Services, 200 
         Independence Avenue, SW., Washington, DC.
       Dear Mr. Secretary: On October 30, 2000, the Energy 
     Employees Occupational Illness Compensation Program Act 
     (EEOICPA) was signed into law (PL 106-386) as part of the FY 
     01 Defense Authorization Act. Enactment of EEOICPA was 
     recognition by Congress and the President that the federal 
     government needed to act quickly to remedy long-standing 
     injustices against atomic weapons program workers. The 
     findings of the Act make the need for the Program abundantly 
     clear, and include the acknowledgment that:
       ``Since the inspection of the nuclear weapons program and 
     for several decades afterwards, a large number of nuclear 
     weapons workers at sites of the Department of Energy and at 
     sites of vendors who supplied the Cold War effort were put at 
     risk without their knowledge and consent for reasons that, 
     documents reveal, were driven by fears of adverse publicity, 
     liability, and employee demands for hazardous duty pay.''
       The Act further states that:
       ``the purpose of the compensation program is to provide for 
     timely, uniform, and adequate compensation of covered 
     employees and, where applicable, survivors of such employees, 
     suffering from illnesses incurred by such employees in the 
     performance of duty for the Department of Energy and certain 
     of its contractors and subcontractors.''
       Yet nearly 39 months after EEOICPA was signed into law, the 
     promise of ``timely, uniform and adequate compensation'' has 
     not been met. We are very concerned about the delay in 
     finalizing the ``special exposure cohort'' petition 
     procedures by the Department of Health and Human Services 
     (HHS) pursuant to 42 USC 7384(q).
       In this regard, EEOICPA specifically provides:
       ``. . . members of a class of employees at a Department of 
     Energy facility, or at an atomic weapons employer facility, 
     may be treated as members of the Special Exposure Cohort for 
     purposes of the compensation program if the President, upon 
     recommendation of the Advisory Board on Radiation and Worker 
     Health, determines that--
       (1) it is not feasible to estimate with sufficient accuracy 
     the radiation dose that the class received; and
       (2) there is reasonable likelihood that such radiation dose 
     may have endangered the health of members of the class.''

[[Page 2696]]

       The law further states that, ``the President shall consider 
     such petitions pursuant to procedures established by the 
     President.''
       Procedures for Designating Classes of Employees as Members 
     of the Special Exposure Cohort were first proposed through a 
     rulemaking, and then subsequently withdrawn in 2002 after 
     uniform criticism. Revised rules were proposed in March of 
     2003, but to date they have not been finalized. Workers have 
     and continue to be blocked from filing petitions to become 
     members of the Special Exposure Cohort because HHS has failed 
     to meet its statutory responsibility to issue these 
     regulations.
       Further delay is denying long-overdue justice for those who 
     were intended to be covered by the special exposure cohort 
     provisions of the Act. After over three years, HHS has had 
     ample time to study this matter, and further delay is simply 
     inexcusable.
       Therefore, we urge you to finalize the special exposure 
     cohort rules and publish them in the Federal Register 
     immediately. Our atomic weapons program workers, who are true 
     Cold War heroes, helped protect our nation and deserve 
     nothing less. We thank you for your prompt attention to this 
     matter.
           Sincerely,
     Members of Congress.
                                  ____


                                S. 2139

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

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Residual Radioactive 
     Contamination Compensation Act''.

     SEC. 2. FINDINGS.

       Congress finds the following:
       (1) Beginning in the early 1940s, the Department of Energy 
     and its predecessors, the Atomic Energy Commission and the 
     Manhattan Engineering District, relied upon hundreds of 
     private-sector factories and laboratories to develop, test, 
     and produce atomic weapons for use by the military, and these 
     facilities became contaminated with radioactive materials 
     during the process of producing material used for atomic 
     weapons production.
       (2) The Energy Employees Occupational Illness Compensation 
     Program Act of 2000 (in this section referred to as EEOICPA) 
     provides health care and lump-sum benefits for radiation-
     related cancers and other illnesses to certain covered 
     workers made sick while they toiled in the nation's nuclear 
     weapons factories, including vendor facilities. EEOICPA 
     defines these private-sector vendor facilities as atomic 
     weapons employer facilities, and employees working in such 
     facilities while their employers were under contract to 
     process nuclear weapons materials are defined as atomic 
     weapons employees.
       (3) Many of the atomic weapons employer facilities were not 
     properly decontaminated after processing radioactive 
     materials such as thorium, uranium, and radium and retained 
     significant levels of contamination. Workers who were hired 
     and employed in such atomic weapons employer facilities after 
     the date that contracts were ended for production were 
     potentially exposed to significant amounts of radiation. 
     Congress was not aware of the presence of residual 
     radioactive contamination in these facilities when it enacted 
     EEOICPA, thus inadvertently denying coverage under the law to 
     those who were unwittingly exposed to radiation left over 
     from nuclear weapons activities.
       (4) In December 2001, the National Defense Authorization 
     Act for Fiscal Year 2002 (Public Law 107-107) was enacted, 
     which required in section 3151(b) that the National Institute 
     for Occupational Safety and Health study and issue a final 
     report to Congress by December 2002 describing which of the 
     atomic weapons employer facilities had significant residual 
     radioactive contamination remaining in them after processing 
     materials for use in atomic weapons and during what time 
     periods such radioactive contamination remained.
       (5) In October 2003, the Institute issued a report, titled 
     Report on Residual Radioactive and Beryllium Contamination in 
     Atomic Weapons Employer and Beryllium Vendor Facilities. The 
     report found that, out of 219 atomic weapons employer 
     facilities--
       (A) 97 (44 percent) of such facilities have potential for 
     significant residual radioactive contamination outside of the 
     periods in which atomic weapons-related production occurred;
        (B) 88 (40 percent) of such facilities have little 
     potential for significant residual radioactive contamination 
     outside of the periods in which atomic weapons-related 
     production occurred; and
       (C) 34 (16 percent) of such facilities have insufficient 
     information to make a determination.
       (6) Congress is now aware that workers were employed in a 
     substantial number of atomic weapons employer facilities 
     years after the Manhattan Project ended. These workers were 
     potentially harmed by legacy residual radioactive 
     contamination that permeated the walls, the floors, and the 
     air of their worksites well after the Atomic Energy 
     Commission and the Department of Energy terminated contracts 
     for production activities. This exposure to residual 
     radioactive contamination took place without the knowledge or 
     consent of these workers.
       (7) Congress therefore declares that, based on the 
     scientific assessment by the Institute, those workers hired 
     and employed in such facilities during the period after Cold 
     War production stopped but during which the Institute found 
     there was significant residual radioactive contamination 
     should be defined as atomic weapons employees under EEOICPA, 
     should be eligible to apply for compensation under subtitle B 
     of EEOICPA, and should have their claims evaluated on the 
     same basis as those atomic weapons employees who were 
     employed during the period when processing of radioactive 
     materials was underway as part of the atomic weapons program.

     SEC. 3. COVERAGE UNDER ENERGY EMPLOYEES OCCUPATIONAL ILLNESS 
                   COMPENSATION PROGRAM OF INDIVIDUALS EMPLOYED AT 
                   ATOMIC WEAPONS EMPLOYER FACILITIES DURING 
                   PERIODS OF RESIDUAL CONTAMINATION

       Paragraph (3) of section 3621 of the Energy Employees 
     Occupational Illness Compensation Program Act of 2000 (42 
     U.S.C. 7384l) is amended to read as follows:
       (3) The term atomic weapons employee means any of the 
     following:
        (A) An individual employed at an atomic weapons employer 
     facility during a period when the employer was processing or 
     producing, for the use by the United States, material that 
     emitted radiation and was used in the production of an atomic 
     weapon, excluding uranium mining and milling.
       (B) An individual employed--
       (i) at an atomic weapons employer facility with respect to 
     which the National Institute for Occupational Safety and 
     Health, in its report dated October 2003 and titled Report on 
     Residual Radioactive and Beryllium Contamination at Atomic 
     Weapons Employer Facilities and Beryllium Vendor Facilities, 
     or any update to that report, found that there is a potential 
     (not including a case in which the Institute found that there 
     is little potential) for significant residual contamination 
     outside of the period in which weapons-related production 
     occurred; and
       (ii) during a period, as specified in such report or any 
     update to such report, of significant residual contamination 
     at that facility.

     SEC. 4. UPDATE TO REPORT

       In each of 2005, 2006, and 2007, the Director of the 
     National Institute for Occupational Safety and Health shall 
     submit to Congress, not later than December 31 of that year, 
     an update to the report required by section 3151(b) of the 
     National Defense Authorization Act for Fiscal Year 2002 
     (Public Law 107-107; 42 U.S.C. 7384 note). Each such update 
     shall--
       (1) for each facility for which such report, or any update 
     to such report, found that insufficient information was 
     available to determine whether significant residual 
     contamination was present, determine whether significant 
     residual contamination was present;
       (2) for each facility for which such report, or any update 
     to such report, found that significant residual contamination 
     remained present as of the date of the report, determine the 
     date on which such contamination ceased to be present;
       (3) for each facility for which such report, or any update 
     to such report, found that significant residual contamination 
     was present but for which the Director has been unable to 
     determine the extent to which such contamination is 
     attributable to beryllium or atomic weapons-related 
     activities, identify the specific dates of coverage 
     attributable to such activities and, in so identifying, 
     presume that such contamination is attributable to such 
     activities until there is evidence of decontamination of 
     residual contamination identified with beryllium or atomic 
     weapons-related activities; and
       (4) if new information that pertains to the report has been 
     made available to the Director since that report was 
     submitted, identify and describe such information.

     SEC. 5. PUBLICATION IN FEDERAL REGISTER

       The Director shall ensure that the report referred to in 
     section 4, and each update required by section 4, are 
     published in the Federal Register not later than 15 days 
     after being released.
                                 ______
                                 
      By Ms. CANTWELL (for herself and Mrs. Murray):
  S. 2140. A bill to expand the boundary of the Mount Rainier National 
Park; to the Committee on Energy and Natural Resources.
  Ms. CANTWELL. Mr. President, I rise today to introduce--along with my 
colleague Senator Murray--the Expanding and Making Mount Rainier 
National Park More Accessible Act.
  This bill authorizes a boundary expansion of Mount Rainier National 
Park to allow the National Park Service to acquire 800 acres of land 
from private landowners, on a willing seller basis. These lands are 
located near the Carbon River and, if acquired, they would be included 
in Mount Rainier National Park, one of America's greatest national 
parks.
  If enacted, the proposed expansion will improve access for visitors, 
allow

[[Page 2697]]

for a new campsite to be built, and save taxpayers money that will no 
longer be needed to repair a frequently washed out road.
  While this legislation will make Mount Rainier National Park safer 
and more accessible for families and outdoor enthusiasts, it is 
important to note that this expansion will also promote the local 
economy. Outdoor recreation is more than an activity in the Northwest, 
it is also a key part of our economy. By improving access to the park, 
my bill will make it easier for visitors to enjoy the park and to 
purchase goods and services in nearby communities.
  This expansion will ensure continued access to the park because the 
northwest entrance road is continually washed out by seasonal 
fluctuations of the glacier-fed Carbon River. The river, which now 
flows at a higher elevation than the roadbed, has blocked visitors from 
accessing the National Park Service's Ipsut Creek campground and nearby 
hiking trails inside the park. The repairs to this road have proven 
both costly and short-lived and have strained the National Park 
Service's already limited maintenance budget. In the long run, the 
expansion will save taxpayers money because the road will not have to 
be maintained to current standards. If this bill is enacted, the 
National Park Service plans to provide a shuttle service to take 
visitors to the Carbon Glacier trailhead. That way, visitors will still 
be able to hike to the Carbon Glacier during day trips.
  If this bill is enacted, local conservation groups and the National 
Park Service will work to reach agreements with landowners in the 
proposed expansion area. I am pleased that the current landowners 
actively participated in the process and enthusiastically support this 
legislation. In fact, they are eager to sell their land to the National 
Park Service so that these lands will be permanently protected for the 
enjoyment of future generations.
  I look forward to working with my colleagues in the Senate as well as 
other members of the Washington state congressional delegation to 
ensure swift passage of this important legislation.

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