[Congressional Record (Bound Edition), Volume 152 (2006), Part 18]
[House]
[Pages 23316-23321]
[From the U.S. Government Publishing Office, www.gpo.gov]




     PREVENTING HARASSMENT THROUGH OUTBOUND NUMBER ENFORCEMENT ACT

  Mr. CANNON. Mr. Speaker, I move to suspend the rules and pass the 
bill (H.R. 5304) to amend title 18, United States Code, to provide a 
penalty for caller ID spoofing, and for other purposes, as amended.
  The Clerk read as follows:

                               H.R. 5304

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

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Preventing Harassment 
     through Outbound Number Enforcement Act''.

     SEC. 2. CALLER ID SPOOFING.

       (a) In General.--Chapter 47 of title 18, United States 
     Code, is amended by adding at the end the following:

     ``Sec. 1039. Caller ID spoofing

       ``(a) In General.--Whoever knowingly modifies caller ID 
     information with the intent to defraud or harass another 
     person, or to use another person's caller ID information 
     without consent, shall be fined under this title, imprisoned 
     for not more than five years, or both.
       ``(b) Attempt; Conspiracy.--Whoever attempts or conspires 
     to commit an offense under subsection (a) of this section 
     shall be punished as provided in subsection (a) of this 
     section.
       ``(c) Exceptions.--This section does not prohibit the 
     following:
       ``(1) Any blocking of caller ID information.
       ``(2) Any lawfully authorized investigative, protective, or 
     intelligence activity of a law enforcement agency of the 
     United States, a State, or a political subdivision of a 
     State, or of an intelligence agency of the United States, or 
     any activity authorized under chapter 224 of this title.
       ``(d) Definitions.--(1) In this section:
       ``(A) The term `caller ID information' means information 
     transmitted--
       ``(i) by a service or device;
       ``(ii) to the recipient of a telephone call; and
       ``(iii) regarding the telephone number of, or other 
     information regarding the origination of, the telephone call.
       ``(B) The term `telephone call' means a call made using a 
     telecommunications service or VOIP service.
       ``(C) The term `VOIP service' means a service that--

[[Page 23317]]

       ``(i) provides real-time 2-way voice communications 
     transmitted through customer premises equipment using 
     Transmission Control Protocol/Internet Protocol, or a 
     successor protocol (including when the voice communication is 
     converted to or from Transmission Control Protocol/Internet 
     Protocol by the VOIP service provider and transmitted to the 
     subscriber without use of circuit switching), for a fee;
       ``(ii) is offered to the public, or such classes of users 
     as to be effectively available to the public (whether part of 
     a bundle of services or separately); and
       ``(iii) has the capability to originate traffic to, and 
     terminate traffic from, the public switched telephone 
     network.
       ``(D) The term `State' includes a State of the United 
     States, the District of Columbia, and any commonwealth, 
     territory, or possession of the United States.
       ``(2) A term used in a definition in paragraph (1) has the 
     meaning given such term in section 3 of the Communications 
     Act of 1934 (47 U.S.C. 153).''.
       (b) Clerical Amendment.--The table of sections at the 
     beginning of chapter 47 of title 18, United States Code, is 
     amended by adding at the end the following new item:

``1039. Caller ID spoofing.''.


                         Parliamentary Inquiry

  Mr. SCOTT of Virginia. Mr. Speaker, I have a parliamentary inquiry.
  The SPEAKER pro tempore. The gentleman will state it.
  Mr. SCOTT of Virginia. The Reading Clerk has read the title of the 
bill. Does that mean it is the originally introduced bill without 
amendments?
  The SPEAKER pro tempore. The Chair understands that the motion is to 
suspend the rules and pass the bill as amended.
  Mr. SCOTT of Virginia. We have looked around the House for a bill, 
and we have been unable to find a bill in the Speaker's lobby or on the 
Speaker's desk, other than the introduced bill. Could someone explain 
to us what we are now considering?
  Mr. CANNON. Mr. Speaker, I think that we have five copies at the desk 
currently.
  The SPEAKER pro tempore. Someone will deliver a copy of the bill to 
the committee table.
  Mr. CANNON. Mr. Speaker, we are having a copy directed to Mr. Scott. 
He has got it.
  The SPEAKER pro tempore. Pursuant to the rule, the gentleman from 
Utah (Mr. Cannon) and the gentleman from Virginia (Mr. Scott) each will 
control 20 minutes.
  The Chair recognizes the gentleman from Utah.


                             General Leave

  Mr. CANNON. Mr. Speaker, I ask unanimous consent that all Members 
have 5 legislative days within which to revise and extend their remarks 
and include extraneous materials on H.R. 5304, as amended, currently 
under consideration.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentleman from Utah?
  There was no objection.
  Mr. CANNON. Mr. Speaker, I rise in support of H.R. 5304, the 
Preventing Harassment through Outbound Number Enforcement Act, the 
PHONE Act, which was introduced by Representative Tim Murphy. I thank 
Mr. Murphy for his leadership and commitment to this issue.
  In the last few years, the criminal activity known as ``spoofing'' 
has been on the rise. Caller ID spoofing occurs when a person 
deliberately uses an incorrect, fake or fraudulent caller 
identification to hide their identity in order to facilitate a 
fraudulent telephone call and to harass, trick or further a fraudulent 
scheme. The victims of this activity include the legitimate owner of a 
caller ID or the recipient of a fraudulent telephone call, who, as a 
result, may divulge legitimate financial or identifying information 
such as credit card numbers or other financial information. Spoofing is 
nothing less than criminal fraud.
  Spoofing technology has become more accessible to the average person, 
either through the purchase of Internet telephone equipment or through 
Web sites specifically set up to spoof. These Web sites promote 
spoofing as a device to commit fraud, prank phone calls and political 
attacks, and are used by telemarketers who are attempting to avoid the 
current ``do not call'' limits.
  H.R. 5304 creates a new Federal crime prohibiting the modification of 
caller ID to harass or commit fraud or use another person's ID without 
that person's consent. The bill imposes a penalty of a prison term of 
up to 5 years and/or a fine for any violation. However, the legislation 
does not affect legally available blocking of caller ID technology or 
lawfully authorized activities of law enforcement intelligence 
agencies.
  This legislation will help to deter telephone fraud, to protect 
consumers from harassment, and to increase protection of consumers and 
their personally identifiable data from fraudulent telephone use.
  I urge my colleagues to join together to pass this bipartisan 
legislation, H.R. 5304.
  Mr. Speaker, I reserve the balance of my time.
  Mr. SCOTT of Virginia. Mr. Speaker, I would like to thank the 
gentleman from Pennsylvania for introducing the bill that addresses an 
important issue. People should be prohibited from defrauding, harassing 
others using this technology. A misleading caller ID can enable 
criminals to get information that they couldn't otherwise get. It will 
enable people to harass. There may be, however, legitimate uses for 
this technology, and that is why I have to oppose the motion to suspend 
the rules and pass the bill at this point.

                              {time}  2345

  There are a lot of people for whom it should be illegal. But, Mr. 
Speaker, I want to express my appreciation for them handing me a bill 
as the debate started. We have been negotiating the information in the 
bill.
  We had a hearing and we found that there are a lot of legitimate uses 
for this. For example, women's shelters use misleading caller ID 
numbers. Businesses may use a misleading caller ID number if they are 
calling from one line of many lines. If they want people to call back 
on their main line, they want to use that caller ID.
  When we had our hearing we heard that we may want to differentiate 
from defrauding and harassing with a criminal intent for criminal gain 
as opposed to just harassing. Maybe we might not have a 5-year felony, 
you might want to have a misdemeanor.
  So I was under the impression earlier today that we were going to 
continue negotiating this and work on it and get a decent bill next 
year.
  Also I heard, Mr. Speaker, that the FBI has made recommendations on 
the bill. We don't have that information yet because the 
recommendations have not been cleared by OMB. I would ask the chief 
sponsor or the proponents of the legislation why it is so important to 
pass the legislation before the Bush administration's Federal Bureau of 
Investigation comments can be considered?
  Mr. Speaker, I reserve the balance of my time.
  Mr. CANNON. Mr. Speaker, I yield myself such time as I may consume.
  Mr. Speaker, let me point out to the gentleman that this is in fact 
an ongoing problem where we have crimes being committed and some 
difficulty in some cases actually having a rationale for prosecuting 
people that are using this sometimes in very harsh criminal 
circumstances.
  The original bill used the term ``misleading.'' I think we have 
changed that now to ``defraud or harass.'' There is no legitimate 
purpose when you are talking about the defrauding or harassing.
  So I would encourage my colleagues to support this bill. It is much 
improved, taking into account the concerns of the gentleman from 
Virginia, and I believe that it is an appropriate bill, a bill that is 
well-drafted now, and I would urge its passage.
  Mr. Speaker, I yield such time as he may consume to the gentleman 
from Pennsylvania (Mr. Murphy), the author of the bill.
  Mr. MURPHY. Mr. Speaker, I rise to ask for support for my bill, H.R. 
5304, the Preventing Harassment through Outbound Number Enforcement 
Act, or the PHONE Act.
  This bill is a critically important consumer protection from fraud, 
deception and other crimes. It offers for the first time criminal 
penalties for those who falsify a caller ID number in the commission of 
a crime.
  Over the years, Congress has repeatedly worked to prevent consumers 
from

[[Page 23318]]

identity theft. Unfortunately, with new technology comes new risks and 
new opportunities for criminals to evade the law. One of these new 
technologies used by thieves is the practice of call spoofing or caller 
ID fraud.
  With caller ID fraud, one masks their identity by altering their 
outbound caller ID number in order to mislead the call recipient. In 
other words, you can make a call from your phone, but to the one who is 
receiving the call, your caller ID number can be anything you so 
choose. In short, caller ID fraud takes away accountability from people 
who wish to do harm to others.
  Today, 21st century criminals are using fake caller identification to 
anonymously defraud and harass Americans all across the country. That 
is why I am so pleased that Congress is considering H.R. 5304 tonight, 
in order to penalize caller ID fraud perpetrators.
  This bill is particularly necessary to protect American families and 
the elderly now. It doesn't take much imagination to understand how 
dangerous this practice could be for unsuspecting people.
  For example, a criminal could try to obtain personal financial 
information from individuals by falsely using a bank's phone number. An 
ex-spouse can harass a former wife or husband who has blocked calls 
from the ex-spouse's phone line. A pedophile could stalk a child by 
using a school phone number or the phone number of a friend of the 
child. A sexual predator could use a doctor's office phone number. Or a 
terrorist could make threats from a government phone number, and there 
is no quick way to trace that original call.
  The criminal use of caller ID fraud is not just a possibility. Here 
are some very real-world examples of caller ID fraud that are very 
disturbing.
  The AARP Bulletin reported a case in which people received calls 
which falsely claimed that they missed jury duty. To avoid prosecution, 
callers told their victims that they needed to give their Social 
Security number and other personal information. The phone number that 
appeared in the caller ID was from the local county courthouse, so 
people assumed the caller was telling the truth.
  A security company, Secure Science Corporation, has stated that 
criminals have accessed these legal call spoofing Internet sites in 
order to protect their identities while they buy stolen credit card 
numbers. These individuals then call a money transfer service, such as 
Western Union, and use a fake caller ID and a stolen credit card number 
to order cash transfers to themselves.
  If the name on the credit card is John Doe of 123 Main Street and the 
caller ID number that shows up is for John Doe of 123 Main Street, it 
is easy to see how someone can be deceived into credit card fraud.
  Here is another example. In 2005, SWAT teams surrounded an empty 
building in New Brunswick, New Jersey, after police received a call 
from a woman who said she was being held hostage in an apartment. 
However, the woman had intentionally used a false caller ID and she was 
not in the apartment at all. Imagine what might have happened when 
those SWAT teams showed up. Imagine what might have happened.
  This practice of making a false alarm to a SWAT team has occurred 
numerous times across the country. So, not only does this practice have 
the potential for tragedy, but it also diverts police and can be used 
to mask other crimes or homeland security threats.
  It is for these reasons that I introduced H.R. 5304, to punish those 
who engage in the intentional practice of misleading others into caller 
ID fraud. Violators of the bill will be subject to a penalty of up to 5 
years in prison and a maximum fine of $250,000. There is no mandatory 
sentencing involved in this bill.
  I am hopeful the Senate can quickly approve the bill, so we can send 
this bill to the President and protect consumers.
  Mr. Speaker, I should point out that the bill came together in a 
bipartisan fashion. The bill was examined at hearings of the Judiciary 
Subcommittee on Crime, Terrorism, and Homeland Security on November 15 
of this year. My two distinguished colleagues, Chairman Howard Coble 
and Ranking Member Bobby Scott of Virginia asked many probing questions 
and offered insights that were invaluable. Their legal expertise truly 
improved this bill and made sure it was not one that dealt at all with 
those who may use these in legal fashions, those that would not be 
considered crimes.
  Thanks to their input, the bill was amended to achieve an agreement 
and brought before the House tonight. I sincerely thank them and 
everybody else on the Judiciary Committee for their cooperation on this 
bill and their commitment to this important consumer protection.
  I certainly also want to thank Chairman Sensenbrenner and the full 
committee and congratulate him on his remarkable tenure as chairman of 
the House Judiciary Committee.
  I want to thank Phil Kiko, general counsel of the House Judiciary 
Committee; Mike Layman, my legislative director; and especially Susan 
Mosychuk, my chief of staff.
  Mr. Speaker, over the years, Congress has been routinely criticized 
as a reactive institution. Tonight, that Congress takes a proactive 
step to move a bill that addresses a problem before further tragedies 
occur. This bill will help to stop crime, protect identity theft and 
protect lives, and I urge all Members to support the PHONE bill.
  Mr. SCOTT of Virginia. Mr. Speaker, I yield myself such time as I may 
consume.
  Mr. Speaker, this was earlier identified as bipartisan legislation. 
It is legislation that is supported in principle by both sides. 
However, I would point out that as of this morning, there were no 
Democratic cosponsors. But it is important legislation, because of the 
examples cited by the gentleman from Pennsylvania, and the bill is 
still a work in progress.
  It is an improved bill. In fact, it includes many amendments that 
have been discussed. One, it limits the application of the bill to 
cases where there is harassment or defrauding, not just misleading. I 
think that is an important improvement. And there is language offered 
by this side that addressed the case we heard where someone else's 
caller ID number was being used, people were making insulting phone 
calls, they would look at their caller ID and then call the person 
whose caller ID number was there. He didn't know anything about it and 
he was getting all of these complaining phone calls. Both of these are 
good improvements.
  But I would still be interested in knowing what the FBI might have to 
say about it. They have to enforce the law. They might have some 
important suggestions that would be important to include in the bill.
  I would ask the proponents of the bill again why it is so important 
to consider the legislation before the FBI has had an opportunity to be 
heard? We don't have to adopt their ideas, but it seems to me that 
since they are going to enforce it, we ought to at least listen to what 
they have to say.
  We had indicated to the other side that we would bring it up as one 
of the first bills next year if we could get the FBI consideration, 
continue negotiating the little details and have a bill that we could 
be proud of.
  However, Mr. Speaker, we are having it today, a work in progress, 
where this side just gets handed the legislation as the debate starts, 
which is I think insulting, and I think we have heard references to 
what happens in the middle of the night. Hopefully we can get the 
answer about the FBI from the other side.
  Mr. Speaker, I reserve the balance of my time.
  Mr. CANNON. Mr. Speaker, I yield myself such time as I may consume.
  I would like to introduce for the Record a letter dated today, from 
the Department of Justice, that I think answers some of the questions 
that the gentleman from Virginia has asked. We will see that a copy of 
this is delivered to the gentleman.


[[Page 23319]]




        Department of Justice, Office of Legislative Affairs, 
                     Office of the Assistant Attorney General,

                                 Washington, DC, December 8, 2006.
     Hon. F. James Sensenbrenner, Jr.,
     Chairman, Committee on the Judiciary,
     House of Representatives, Washington, DC.
       Dear Mr. Chairman: The Department of Justice appreciates 
     the opportunity to comment on H.R. 5304, the ``Preventing 
     Harassment through Outbound Number Enforcement Act'' (``PHONE 
     Act''). As Deputy Assistant Attorney General Barry Sabin 
     testified before the Subcommittee on Crime, Terrorism, and 
     Homeland Security last month, we support Congressional action 
     to give law enforcement better tools to protect our citizens 
     and our country from identity thieves, stalkers, and other 
     criminals.
       Overall, the bill would support the Department's efforts to 
     combat the threats caused by the widespread availability of 
     ``caller ID spoofing.'' As noted at the Subcommittee's 
     hearing on the PHONE Act, these threats include preying on 
     the elderly, harassment of telephone users, and dangerous 
     false alarms to public safety personnel. Caller ID spoofing 
     facilitates a number of serious crimes, including identity 
     theft, pretexting, and privacy invasions. It can also be used 
     to hamper important, time sensitive investigations.
       The Department was especially pleased to see that the scope 
     of the bill includes both conventional telephone calling and 
     many types of voice over Internet protocol (``VOIP'') 
     services. VOIP is an important new advance in the way 
     Americans communicate, and our laws need to keep up with such 
     technological advances if these new innovations are to reach 
     their full potential.
       The drafters also have wisely recognized that, at times, it 
     may be necessary to modify caller ID information in the 
     course of authorized law enforcement and intelligence 
     operations. Accordingly, the bill properly includes an 
     exception for these legitimate law enforcement and 
     intelligence activities.
       The Department has a number of recommendations (described 
     below) to clarify the bill and to make it even more 
     effective.
       A. The bill could be made more effective by creating a more 
     graduated series of offenses.
       Proposed Section 1038(a) creates only a single offense, a 
     felony. A felony is a very serious charge that carries heavy 
     penalties that may not be proportional to the conduct at 
     issue in every case. The drafters may wish to consider a more 
     graduated series of offenses that would allow prosecutors to 
     charge misdemeanor offenses in appropriate circumstances. For 
     instance, felony penalties could be reserved for caller ID 
     spoofing done in furtherance of another crime or tort, while 
     those playing practical jokes could be charged with a 
     misdemeanor offense. This could lead to greater use of the 
     statute and more just results. Such an approach has been 
     implemented in other federal criminal statutes such as 18 
     U.S.C. Sec. 1030(c)(2)(B) (part of the Computer Fraud and 
     Abuse Act) and 18 U.S.C. Sec. 270 I (b) (the criminal 
     provision in the Electronic Communications Privacy Act).
       B. The bill could be made more effective by prohibiting 
     attempts.
       A prosecution should not depend on whether a criminal was 
     successful in the object of his or her crime. Thus, if a call 
     placed by a criminal attempting to mislead another does not 
     go through for some reason, the criminal should be punishable 
     as if the call had been completed. Such failures may occur 
     where a service has blocked certain numbers, such as 911, or 
     even for more mundane technical problems. These failures do 
     not make the criminal any less culpable for attempting to 
     mislead others. Thus, we recommend that the bill punish 
     attempts the same as the substantive offense.
       C. The new provision should be numbered 18 U.S.C. 
     Sec. 1039.
       The bill seeks to add a new provision to the end of Chapter 
     47 of Title 18. Section 1038 in Title 18 already exists, 
     however, and we understand that there is a good chance that a 
     bill currently moving through Congress would create a new 
     section numbered 1039. Thus, this bill should be numbered 
     either 1039 or 1040 instead.
       D. The drafters may wish to include a clear statement of 
     jurisdiction.
       We believe that the bill as written contains a sufficient 
     nexus to interstate commerce to justify federal jurisdiction 
     in most cases. Nevertheless, in order to make jurisdiction 
     even more clear, the Committee may want to consider adding 
     the phrase ``using any facility or means of interstate or 
     foreign commerce'' to proposed subsection 1038(a). 
     Alternatively, it may be helpful to include a specific 
     finding regarding jurisdiction in the Committee's report.
       E. The bill can be made more effective by prohibiting 
     ``generating and transmitting'' misleading caller 
     identification information in addition to ``modifying'' such 
     information.
       Some of the caller ID spoofing services available today do 
     not actually modify caller ID information. As a technical 
     matter, the service creates a new telephone call, thereby 
     generating or transmitting new caller ID information. To take 
     into account such situations, we recommend that, in addition 
     to modifying information, the bill also cover generating or 
     transmitting caller ID information with an intent to mislead.
       F. The bill can be made more effective by prohibiting 
     caller ID spoofing with the intent to mislead any other 
     person.
       Caller ID spoofing can be used not only to mislead call 
     recipients, but also to defraud communications service 
     providers. In addition to misreporting the information that 
     eventually is displayed on call recipients' caller ID 
     displays, the same methods can be and are used to falsify the 
     telephone numbers that carriers use to determine appropriate 
     billing for calls that are carried on their networks. The 
     bill can be strengthened to include this type of fraud by 
     prohibiting misleading ``any other person'' rather than only 
     misleading call recipients.
       G. The bill can be made more effective by clarifying the 
     definition of ``caller ID information. ``
       As currently drafted, the definition of ``caller ID 
     information'' is difficult to parse. We would recommend 
     rewording proposed subsection 1038(c)(1)(A) to say ``The term 
     `caller ID information' means information regarding the 
     origination of the telephone call, including the telephone 
     number of the originating party.''
       H. The bill can be made more effective by focusing the 
     definition of ``telephone call'' on the service used to 
     receive calls rather than the service used to make calls.
       The bill seeks to cover matters involving ``telephone 
     calls.'' A ``telephone call'' is defined as a ``call made 
     using a telecommunications service or a VOIP service.'' See 
     proposed subsection 1038(c)(1)(B) (emphasis added). This 
     definition focuses on the service being used to make the 
     call, thereby allowing the person seeking to mislead others 
     to avoid criminal liability by choosing a service not covered 
     by the statute. For example, a caller using a service that 
     allows only outbound calls to the public switched telephone 
     network (PSTN) would not be covered (without the 
     modifications suggested in Section I below), even though 
     ordinary telephone users would be receiving such calls. The 
     bill's coverage more properly should depend on the type of 
     service being used to receive the call, since it is call 
     recipients that the bill seeks to protect from being misled. 
     We recommend that the definition of ``telephone call'' be 
     changed to read ``The term `telephone call' means a 
     communication made using or received on a telecommunications 
     service or VOIP service.''
       I. The bill can be made more effective by expanding the 
     definition of ``VOIP service.''
       We have a number of concerns with the narrow scope of the 
     definition of ``VOIP service,'' a definition that soon could 
     be overtaken by advances in technology. It is important to 
     craft this definition well not only because of the effect it 
     would have on the scope of this bill, but because of the 
     effect it could have on the scope of other important 
     programs, such as the Communications Assistance for Law 
     Enforcement Act and emergency response services. As Thomas 
     Navin, Chief of the Wireline Competition Bureau of the 
     Federal Communications Commission, testified before the 
     Subcommittee on Telecommunications and the Internet of the 
     Energy and Commerce Committee, ``a restrictive definition of 
     VOIP . . . might establish a statutory precedent that would 
     restrict the Commission's authority to protect life and 
     property in both the public safety and law enforcement 
     contexts.'' The Department has expressed similar concerns in 
     regulatory proceedings and in connection with other bills 
     introduced this Congress, and we would respectfully raise 
     those same concerns with this Committee.
       1. The bill can be made more effective by eliminating the 
     requirement that a VOIP service be transmitted ``through 
     customer premises equipment.''
       It is not clear why protection from being misled by caller 
     ID information should depend on whether VOIP service is 
     transmitted ``through customer premises equipment,'' as set 
     forth in proposed subsection 1038(c)(1)(C)(i). We therefore 
     suggest deleting these words (``through customer premises 
     equipment'') to broaden the scope of the bill.
       2. The bill can be made more effective by eliminating the 
     requirement that a VOIP service use Transmission Control 
     Protocol.
       The bill should not be limited to services that use the 
     Transmission Control Protocol (``TCP''), as many current VOIP 
     services use another protocol (that is not a successor to 
     TCP) called the User Datagram Protocol (``UDP''). We 
     therefore recommend that ``Transmission Control Protocol/'' 
     be deleted from proposed subsection 1038(c)(1)(C)(i).
       3. The bill can be made more effective by clarifying the 
     parenthetical in the definition of a ``VOIP service.''
       Proposed subsection 1038(c)(1)(C)(i) provides that a VOIP 
     service is covered even when the Internet protocol conversion 
     is performed ``without use of circuit switching.'' The 
     Department believes that this provision is unclear. We 
     recommend that the parenthetical be clarified.
       4. The bill can be made more effective by eliminating the 
     requirement that a VOIP service be offered ``for a fee.''
       The Department believes it would be preferable that the 
     bill's prohibition not depend on the provider's business 
     model, that is, not apply only to those VOIP services offered 
     ``for a fee.'' See proposed subsection

[[Page 23320]]

     1038(c)(1)(C)(i). At least some VOIP services are offered at 
     no charge and will be supported by revenue generated from 
     sources other than user fees, such as advertising revenue. In 
     fact, several VOIP providers are currently offering free 
     calls to or from the PSTN. There is no reason why the 
     business model of the service provider should have an impact 
     on the scope of the bill's coverage.
       5. The bill can be made more effective by eliminating the 
     requirement that a VOIP service must offer two-way 
     interconnection to the PSTN.
       The bill also limits ``VOIP service'' to a service that 
     ``has the capability to originate traffic to, and terminate 
     traffic from, the public switched telephone network [PSTN].'' 
     See proposed 18 U.S.C. Sec. 1038(c)(l)(C)(iii) (emphasis 
     added). This provision is unnecessarily restrictive for two 
     reasons. First, some VOIP providers offer services that only 
     allow one of those two capabilities. Under the definition in 
     the bill, a call to a person's telephone is not a ``telephone 
     call'' if the caller's service does not also allow that 
     originator to receive calls from the PSTN. There is no reason 
     a person should be allowed to mislead call recipients, even 
     ones using traditional telephone service, simply because he 
     or she uses a service that restricts incoming calls. Even if 
     the bill were amended as suggested above to focus on the 
     service used to receive calls, there is no reason why 
     subscribers to receive-only services should be less protected 
     from fraudulent caller ID information simply because their 
     ability to call out is limited. We recommend that, at a 
     minimum, the word ``and'' be changed to ``or'' in proposed 
     subsection 1038(c)(l)(C)(iii).
       In addition, the bill only covers services that are capable 
     of interconnecting with the PSTN. Reference to the PSTN could 
     be interpreted to limit its applicability to one particular 
     set of wires, i.e., the traditional telephone network. If, as 
     some predict, the future of telephone communications shifts 
     entirely away from that older network, the bill could become 
     a dead letter. We recommend adding ``or a successor network'' 
     at the end of proposed subsection 1038(c)(1)(C)(iii).
       J. The bill can be more effective by including a forfeiture 
     provision.
       In addition, the Department believes the bill would have 
     more deterrent effect if it also included a forfeiture 
     provision. Specifically, a court could order the convicted 
     party to forfeit the proceeds derived from the offense, along 
     with equipment used to facilitate the offense. The language 
     for a forfeiture provision could be modeled on the wording 
     used for the CAN-SPAM Act of 2003. See 18 U.S.C.A. 
     Sec. 1037(c).
       K. The bill can be made more effective by giving 
     prosecutors tools to combat money laundering of illegal 
     proceeds of violations of the PHONE Act and the CAN-SPAM Act.
       We recommend adding proposed section 1039 and existing 
     section 1037 to the list of ``specified unlawful activities'' 
     in section 1956(c)(7)(D) of title 18. This amendment would 
     make certain financial transactions involving the proceeds of 
     violations of sections 1037 and 1039 money laundering 
     offenses under 18 U.S.C. Sec. Sec. 1956 and 1957, and it will 
     provide for the civil forfeiture of such proceeds. See 18 
     U.S.C. Sec. 981(a)(l)(C) (providing for the civil forfeiture 
     of proceeds of crimes designated as ``specified unlawful 
     activity''). Existing law provides that comparable crimes, 
     e.g., violations of 18 U.S.C. Sec. 1030 (computer fraud and 
     abuse) constitute specified unlawful activities.
       For convenience, we have included recommended edits to the 
     text of the bill in order to accomplish many of the 
     recommendations suggested above (attached hereto as Appendix 
     A). The Department appreciates the Committee's leadership in 
     ensuring that our country's laws meet this new challenge. 
     Thank you for the opportunity to comment on the bill and for 
     your continuing support.
       The Office of Management and Budget has advised that there 
     is no objection to the presentation of these views from the 
     standpoint of the Administration's program. If we may be of 
     additional assistance, please do not hesitate to contact this 
     office.
           Sincerely,
                                                 James H. Clinger,
                                Acting Assistant Attorney General.

  Mr. CANNON. Mr. Speaker, the Department of Justice supports the bill. 
We recognize that sometimes in the helter-skelter of closing up 
Congress, things happen quickly and maybe not perfectly. I think this 
bill is a good bill. I think this bill does what we need it to do. I 
think we have answered the major questions here. We may have to revisit 
it sometime in the future, but I would like to see law enforcement have 
this tool.
  So I urge my colleagues to support the passage of the bill.
  Mr. Speaker, I reserve the balance of my time.
  Mr. SCOTT of Virginia. Mr. Speaker, I yield myself such time as I may 
consume.
  Mr. Speaker, when the FBI testified on the bill, they indicated they 
had some concerns. I assume I will get the concerns after we finish 
considering the bill. We had to beg for a copy of the legislation so we 
would know what we are debating. Now, I guess, would it hurt your 
feelings to let me know what the FBI had to say about it? They had 
concerns when they testified on the bill. Let me just say that. I will 
just wait over here until I can get a copy of their comments so I know 
what they said.
  Mr. Speaker, I reserve the balance of my time.
  Mr. CANNON. Mr. Speaker, I yield myself such time as I may consume.
  Mr. Speaker, we have a copy of those comments on the way over to the 
gentleman from Virginia. I would hope we would never require begging in 
this institution for access to information, and I apologize for any 
inconvenience.
  While we are delivering the Department of Justice's letter, the first 
paragraph of which talks about supporting the bill, I would be happy to 
yield to the gentleman from Pennsylvania such time as he may consume.
  Mr. MURPHY. Mr. Speaker, I wanted to address Mr. Scott's concerns. I 
know during the Judiciary Committee the gentleman from Virginia raised 
a couple of very important issues. One, he wanted to make sure there 
were no mandatory sentencing penalties in this; and, two, to make sure 
it did not disallow some legal practices.
  For example, businesses may use a caller ID when they call someone to 
protect the privacy of people within that business. Indeed, my 
understanding is the wording of this does address that, according to 
what Judiciary and the Department of Justice has looked at with that 
wording.
  So it made sure that those within a business may have use or those 
with other legitimate uses for using a caller ID. It is only related to 
those who harass or defraud others, so only specifically in the 
commission of a crime. I just want to say it addressed those issues, as 
far as I know.
  Mr. CANNON. Mr. Speaker, has the gentleman from Virginia had the 
opportunity to review the document and the bill?
  Mr. SCOTT of Virginia. Mr. Speaker, I yield myself such time as I may 
consume.
  Actually I would say to the gentleman from Utah, I haven't gotten any 
letter from the Justice Department yet. I assume it is in transit. It 
is a long way from that side of the aisle to this side of the aisle. I 
don't know what kind of communication method we are using, but I 
haven't gotten it yet.
  I would point out, as the gentleman from Pennsylvania has indicated, 
when we make calls out of our offices in Congress, the caller ID number 
that shows up on someone's caller ID machine is some nonworking 
switchboard number.
  Mr. CANNON. Mr. Speaker, if the gentleman would yield, one of the 
greatest pains in my life is the fact that we have colleagues in this 
institution who are sometimes troublesome, and so we get that caller ID 
and I think it is from my office and I end up talking to one of my 
colleagues I might not have talked to if I wasn't being spoofed by the 
institution.
  My understanding is we had to make a copy of that letter. Apparently 
it was the only one we had. So we will have a copy coming to you 
momentarily. It is being delivered currently to your staff.
  Mr. SCOTT of Virginia. Mr. Speaker, having just been handed the 
letter and gone through it very quickly, I would just point out that 
the last sentence on the first page says, ``The department has a number 
of recommendations (described below) to clarify the bill and to make it 
even more effective.''
  They suggest, just briefly going through it, A, B, C, D, E, F, G, H, 
I, 1, 2, 3, 4, 5, J, K, improvements needed for the bill.

                              {time}  0000

  I do not know if this is a copy or original or what, but I hope 
everybody reads the letter that was entered previously in the Record so 
they will know that we are taking this action before we have had any 
time to consider the recommendations of the FBI which will have the 
responsibility of enforcing the bill, if it ever becomes law at the end 
of this session.

[[Page 23321]]

  Mr. Speaker, I reserve the balance of my time.
  Mr. CANNON. Mr. Speaker, I yield myself such time as I may consume.
  Let me point out to the gentleman that those are not recommendations 
of things that are needed to improve the bill but suggestions for 
improvement of the bill, and I would ask my colleagues to support the 
bill as it stands.
  Mr. Speaker, I reserve the balance of my time.
  Mr. SCOTT of Virginia. Mr. Speaker, I yield myself such time as I may 
consume.
  A, the bill could be made more effective by creating a more graduated 
series of offenses and then details.
  B, the bill could be made more effective by prohibiting attempts, 
then a description.
  C, a new provision should be numbered 18 U.S.C. 1039 and a 
description.
  D, the drafters may wish to include a clear statement of 
jurisdiction.
  E, the bill could be made more effective by prohibiting, generating, 
and transmitting misleading caller identification information in 
addition to modifying such information, on and on and on.
  These are substantive recommendations that we are just going to 
ignore by taking this bill up in the middle of the night right here at 
the end of the session with a bill that has been handed to this side at 
the last minute, with the FBI recommendations that have been hiding the 
ball right up until I demanded it, and then they finally let it go.
  This is a ridiculous way to put things in the Criminal Code, and I 
would hope we would defeat the legislation.
  Mr. Speaker, I reserve the balance of my time.
  Mr. CANNON. Mr. Speaker, I yield myself such time as I may consume 
and would like to point out, I am sure the gentleman when he talks 
about hiding the ball he is not referring to us. We have been working 
with the Justice Department to get this information.
  We got to the gentleman's office this bill by midday today and, 
again, we apologize for the technical difficulties. I am not sure if 
the gentleman opposes the bill in substance, but I would again 
encourage my colleagues to support the bill.
  It is my understanding the gentleman is likely to be the chairman of 
the Crime Subcommittee next year and can bring this up and improve it 
with all of the comments and the suggestions that the Justice 
Department has proposed, and therefore I hope that he will join with me 
in supporting this bill for its passage. I encourage my colleagues to 
pass it.
  Mr. Speaker, I reserve the balance of my time.
  Mr. SCOTT of Virginia. Mr. Speaker, I yield myself such time as I may 
consume.
  Mr. Speaker, I cannot support the bill in its present form. I think 
we can put a bill together if we are given time. Since we have little 
time, we got through E. F is the bill can be made more effective by 
prohibiting caller ID spoofing with the intent to mislead any other 
person.
  G, the bill could be made more effective by clarifying the definition 
of ``caller ID information.''
  H, the bill can be made more effective by focusing the definition of 
``telephone call'' on the service used to receive calls rather than the 
service used to make calls.
  I, the bill can be made more effective by expanding the definition of 
``VOIP service.''
  Then one, they could go through what the VOIP service details.
  The bill can be made more effective by including a forfeiture 
provision.
  The bill can be made more effective by giving prosecutors tools to 
combat money laundering of illegal proceeds of violations of the PHONE 
Act and the CAN-SPAM Act.
  Mr. Speaker, you will remember that we were not going to get this 
until I demanded it time and time again and they finally produced it, 
and now we find out that the information from the FBI is very critical 
of the bill, suggesting that it needs a lot of work, and we can do the 
work. We could sit down and hammer it out. I think everybody agrees 
that something needs to be done about this situation. It is a work in 
progress.
  I notice in here an amendment that was suggested this afternoon is, 
in fact, in the bill in a slightly different wording and I think better 
wording in the bill than the original suggestion. So it is a work in 
progress.
  But, Mr. Speaker, this is not the way we ought to be legislating. We 
can do better than this, and I think we ought to defeat the bill now, 
bring it up early in the next session, and have a product that 
everybody can be proud of.
  Mr. Speaker, I yield back the balance of my time.
  Mr. CANNON. Mr. Speaker, I yield myself such time as I may consume.
  Mr. Speaker, I appreciate the gentleman's concerns and would point 
out if he had more time with the bill, if the staff had gotten it to 
him earlier today, I suspect he would have seen that many of the 
suggestions he has made here or suggestions he has read from the 
Department of Justice document have actually been taken into account. 
Misleading, for instance, is one of the terms that has been adjusted 
because it is very difficult to deal with.
  The question here is are we going to let the perfect be the enemy of 
the good. This is a bill that is very important to the American people. 
If you are a divorcee and your husband is harassing you and he is using 
a fake phone number to do it, you do not want to wait until next 
session. You want the bill passed now so that your former husband is 
going to be more careful and not abuse you and your children and maybe 
not subject you to injury or harm.
  I suggest that those people that are using spoofing need to be told 
today that this is inappropriate, and I urge passage of this bill.
  Mr. Speaker, I yield back the balance of my time.
  The SPEAKER pro tempore. The question is on the motion offered by the 
gentleman from Utah (Mr. Cannon) that the House suspend the rules and 
pass the bill, H.R. 5304, as amended.
  The question was taken.
  The SPEAKER pro tempore. In the opinion of the Chair, two-thirds of 
those voting have responded in the affirmative.
  Mr. SCOTT of Virginia. Mr. Speaker, I object to the vote on the 
ground that a quorum is not present and make the point of order that a 
quorum is not present.
  The SPEAKER pro tempore. Pursuant to clause 8 of rule XX and the 
Chair's prior announcement, further proceedings on this question will 
be postponed.
  The point of no quorum is considered withdrawn.

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