[House Report 106-932]
[From the U.S. Government Publishing Office]
106th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 106-932
======================================================================
ELECTRONIC COMMUNICATIONS PRIVACY ACT OF 2000
_______
October 4, 2000.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Canady, from the Committee on the Judiciary, submitted the
following
R E P O R T
[To accompany H.R. 5018]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to whom was referred the
bill (H.R. 5018) amending title 18, United States Code, to
modify certain provisions of law relating to the interception
of communications, and for other purposes, having considered
the same, reports favorably thereon with an amendment and
recommends that the bill as amended do pass.
TABLE OF CONTENTS
Page
The Amendment.............................................. 2
Purpose and Summary........................................ 7
Background and Need for the Legislation.................... 8
Hearings................................................... 22
Committee Consideration.................................... 23
Votes of the Committee..................................... 23
Committee Oversight Findings............................... 27
Committee on Government Reform Findings.................... 27
New Budget Authority and Tax Expenditures.................. 27
Congressional Budget Office Cost Estimate.................. 27
Constitutional Authority Statement......................... 29
Section-by-Section Analysis and Discussion................. 29
Changes in Existing Law Made by the Bill, as Reported...... 31
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Electronic Communications Privacy
Act of 2000''.
SEC. 2. USE AS EVIDENCE.
(a) In General.--Section 2515 of title 18, United States Code, is
amended--
(1) by striking ``wire or oral'' in the heading and
inserting ``wire, oral, or electronic''.
(2) by striking ``Whenever any wire or oral communication
has been intercepted'' and inserting ``(a) Except as provided
in subsection (b), whenever any wire, oral, or electronic
communication has been intercepted, or any electronic
communication in electronic storage has been disclosed'';
(3) by inserting ``or chapter 121'' after ``this chapter'';
and
(4) by adding at the end the following:
``(b) Subsection (a) does not apply to the disclosure, before a
grand jury or in a criminal trial, hearing, or other criminal
proceeding, of the contents of a communication, or evidence derived
therefrom, against a person alleged to have intercepted, used, or
disclosed the communication in violation of this chapter, or chapter
121, or participated in such violation.''.
(b) Section 2517.--Paragraphs (1) and (2) of section 2517 are each
amended by inserting ``or under the circumstances described in section
2515(b)'' after ``by this chapter''.
(c) Section 2518.--Section 2518 of title 18, United States Code, is
amended--
(1) in subsection (7), by striking ``subsection (d)'' and
inserting ``subsection (8)(d)''; and
(2) in subsection (10)--
(A) in paragraph (a)--
(i) by striking ``or oral'' each place it
appears and inserting ``, oral, or
electronic'';
(ii) by striking the period at the end of
clause (iii) and inserting a semicolon; and
(iii) by inserting ``except that no
supresssion may be ordered under the
circumstances described in section 2515(b).''
before ``Such motion''; and
(B) by striking paragraph (c).
(d) Clerical Amendment.--The item relating to section 2515 in the
table of sections at the beginning of chapter 119 of title 18, United
States Code, is amended to read as follows
``2515. Prohibition of use as evidence of intercepted wire, oral, or
electronic communications.''.
SEC. 3. REPORTS CONCERNING THE DISCLOSURE OF THE CONTENTS OF ELECTRONIC
COMMUNICATIONS.
Section 2703 of title 18, United States Code, is amended by adding
at the end the following:
``(g) Reports Concerning the Disclosure of the Contents of
Electronic Communications.--
``(1) By January 31 of each calendar year, the judge
issuing or denying an order, warrant, or subpoena, or the
authority issuing or denying a subpoena, under subsection (a)
or (b) of this section during the preceding calendar year shall
report on each such order, warrant, or subpoena to the
Administrative Office of the United States Courts--
``(A) the fact that the order, warrant, or subpoena
was applied for;
``(B) the kind of order, warrant, or subpoena
applied for;
``(C) the fact that the order, warrant, or subpoena
was granted as applied for, was modified, or was
denied;
``(D) the offense specified in the order, warrant,
subpoena, or application;
``(E) the identity of the agency making the
application; and
``(F) the nature of the facilities from which or
the place where the contents of electronic
communications were to be disclosed.
``(2) In January of each year the Attorney General or an
Assistant Attorney General specially designated by the Attorney
General shall report to the Administrative Office of the United
States Courts--
``(A) the information required by subparagraphs (A)
through (F) of paragraph (1) of this subsection with
respect to each application for an order, warrant, or
subpoena made during the preceding calendar year; and
``(B) a general description of the disclosures made
under each such order, warrant, or subpoena,
including--
``(i) the approximate number of all
communications disclosed and, of those, the
approximate number of incriminating
communications disclosed;
``(ii) the approximate number of other
communications disclosed; and
``(iii) the approximate number of persons
whose communications were disclosed.
``(3) In June of each year, beginning in 2002, the Director
of the Administrative Office of the United States Courts shall
transmit to the Congress a full and complete report concerning
the number of applications for orders, warrants, or subpoenas
authorizing or requiring the disclosure of the contents of
electronic communications pursuant to subsections (a) and (b)
of this section and the number of orders, warrants, or
subpoenas granted or denied pursuant to subsections (a) and (b)
of this section during the preceding calendar year. Such report
shall include a summary and analysis of the data required to be
filed with the Administrative Office by paragraphs (1) and (2)
of this subsection. The Director of the Administrative Office
of the United States Courts is authorized to issue binding
regulations dealing with the content and form of the reports
required to be filed by paragraphs (1) and (2) of this
subsection.''.
SEC. 4. PEN REGISTERS AND TRAP AND TRACE DEVICES.
(a) Requirement for Showing.--Section 3122(b)(2) of title 18,
United States Code, is amended to read as follows:
``(2) a statement of facts showing that the requirements of
section 3123 have been met.''.
(b) Finding by Court.--Subsection (a) of section 3123 of title 18,
United States Code, is amended by striking ``the attorney for the
Government'' and all that follows through the end of such subsection
and inserting ``specific and articulable facts reasonably indicate that
a crime has been, is being, or will be committed, and information
likely to be obtained by such installation and use is relevant to the
investigation of that crime.''.
SEC. 5. CIVIL DAMAGES.
Section 2520(c)(2) of title 18, United States Code, is amended--
(1) by striking ``court may'' and inserting ``court
shall'';
(2) by striking ``greater'' and inserting ``greatest'';
(3) in subparagraph (A), by striking ``or'' after the
semicolon;
(4) in subparagraph (B), by striking ``whichever is the
greater of $100 a day for each day of violation or $10,000.''
and inserting ``$500 a day for each violation; or''; and
(5) by inserting after subparagraph (B), the following:
``(C) statutory damages of $10,000.''.
SEC. 6. NOTIFICATION.
Section 2705(a)(4) of title 18, United States Code, is amended by
striking ``or by certification by a governmental entity, but only in
accordance with subsection (b) of this section.'' and inserting ``if
the court determines that there is reason to believe that notification
of the existence of the court order or subpoena may have an adverse
result described in paragraph (2) of this subsection.''.
SEC. 7. GOVERNMENT ACCESS TO LOCATION INFORMATION.
(a) Court Order Required.--Section 2703 of title 18, United States
Code, as amended by section 3 of this Act, is further amended by adding
at the end the following:
``(h) Disclosure of Location Information to Governmental
Entities.--
``(1) Disclosure upon court order.--Except as provided in
paragraph (2), a provider of mobile electronic communication
service shall provide to a governmental entity information
generated by and disclosing the current physical location of a
subscriber's equipment only if the governmental entity obtains
a court order issued upon a finding that there is probable
cause to believe that--
``(A) a person is committing, has committed, or is
about to commit a felony offense; and
``(B) the location information sought to be
obtained concerns the location of the person believed
to have committed, be committing, or be about to commit
that offense or a victim of that offense.
``(2) Permitted disclosures without court order.--A
provider of mobile electronic communication service may provide
information described in paragraph (1)--
``(A) to a public safety answering point, emergency
medical service provider or emergency dispatch
provider, public safety, fire service or law
enforcement official, or hospital emergency or trauma
care facility, in order to respond to the user's call
for emergency services;
``(B) to inform the user's legal guardian or
members of the user's immediate family of the user's
location in an emergency situation that involves the
risk of death or serious physical harm; or
``(C) with the express consent of the subscriber or
the user of the equipment concerned.
``(3) Definition.--The term `public safety answering point'
means a facility that has been designated to receive emergency
calls and route them to emergency service personnel.''.
(b) Conforming Amendment.--Subsection (c)(1)(A) of section 2703 of
title 18, United States Code, is amended by striking ``(b) of this
section'' and inserting ``(b), or wireless location information covered
by subsection (g)''.
SEC. 8. COMPUTER CRIME AMENDMENTS.
(a) Generally.--Section 1030 of title 18, United States Code, is
amended--
(1) in subsection (a)(3), by striking ``such a computer''
and inserting ``without or in excess of authorization a
computer'';
(2) in subsection (a)(5), by inserting after subparagraph
(C) the following:
``(B) whose conduct described in clause (i), (ii), or (iii)
of subparagraph (A)--
``(i) caused loss to one or more persons during any
one-year period (including loss resulting from a
related course of conduct affecting one or more other
protected computers) aggregating at least $5,000;
``(ii) modified or impaired, or potentially
modified or impaired, the medical examination,
diagnosis, treatment, or care of one or more
individuals;
``(iii) caused physical injury to any individual;
``(iv) threatened public health or safety;
``(v) caused damage affecting a computer system
used by or for a government entity in furtherance of
the administration of justice, national defense, or
national security; or
``(vi) intentionally defaced, damaged, or destroyed
images or information made available to the public and
thereby interfered with the rights protected under the
First Amendment to the Constitution;''.
(3) in subsection (a)(5)(A), by inserting ``(i)'' after
``(5)(A)'';
(4) in subsection (a)(5)(B), by striking ``(B)'' and
inserting ``(ii)'';
(5) in subsection (a)(5)(C)--
(A) by striking ``(C)'' and inserting ``(iii)'';
and
(B) by inserting ``and'' after the semicolon;
(6) in subsection (a)(7), by striking ``, firm,
association, educational institution, financial institution,
government entity, or other legal entity,'';
(7) in subsection (b), by adding before the period ``as if
such person had committed the completed offense'';
(8) in subsection (c)(1)(A) and (B), by striking ``, or an
attempt to commit an offense punishable under this
subparagraph'';
(9) in subsection (c)(1)(A), by inserting ``, (a)(5)(A)(i),
or (a)(5)(A)(ii)'' after ``(a)(1)'';
(10) by amending subsection (c)(2)(A) to read as follows:
``(2)(A) except as provided in subsection (c)(2)(B), a fine
under this title or imprisonment for not more than one year, or
both, in the case of an offense under subsection (a)(2),
(a)(3), (a)(5)(A)(iii), or (a)(6) of this section which does
not occur after a conviction for another offense under this
section;'';
(11) by striking subparagraph (C) of subsection (c)(2);
(12) in subsection (c)(3)--
(A) by striking ``(3)(A)'' and inserting ``(3)'';
(B) by striking ``, (a)(5)(A), (a)(5)(B),'';
(C) by striking ``, or an attempt to commit an
offense punishable under this subparagraph; and'' and
inserting ``; and''; and
(D) by striking subparagraph (B) and inserting:
``(4) a fine under this title or imprisonment for not more
than ten years, or both, in the case of an offense under
subsection (a)(2), (a)(3), (a)(4), (a)(5), (a)(6), or (a)(7) of
this section which occurs after a conviction for another
offense under this section.'';
(13) in subsection (d)--
(A) by striking ``subsections (a)(2)(A), (a)(2)(B),
(a)(3), (a)(4), (a)(5), and (a)(6) of''; and
(B) by striking ``which shall be entered into by''
and inserting ``between'';
(14) in subsection (e)(7), by striking ``and'' after the
semicolon;
(15) in subsection (e)(8), by striking all after
``information'' and inserting a semicolon;
(16) in subsection (e)(9), by striking the period at the
end and inserting a semicolon;
(17) by inserting the following after subsection (e)(9):
``(10) the term `conviction for another offense under this
section' includes a State conviction for a crime punishable by
imprisonment for more than 1 year, an element of which is
unauthorized access, or exceeding authorized access, to a
computer;
``(11) the term `loss' means any reasonable cost to any
victim, including responding to the offense, conducting a
damage assessment, restoring any data, program, system, or
information to its condition before the offense, and any
revenue lost or costs incurred because of interruption of
service; and
``(12) the term `person' includes any individual, firm,
association, educational institution, financial institution,
corporation, company, partnership, government entity, or other
legal entity.'';
(18) by amending subsection (g) to read as follows:
``(g) Except as herein provided, any person who suffers damage or
loss by reason of a violation of this section may maintain a civil
action against the violator to obtain compensatory damages and
injunctive or other equitable relief. A suit for a violation of
subsection (a)(5) may be brought only if the conduct involves one or
more of the factors enumerated in subsection (a)(5)(B). No action may
be brought under this subsection unless such action is begun within 2
years of the date of the act complained of or the date of the discovery
of the damage.''; and
(19) by adding the following subsection after subsection
(h):
``(i)(1) The court, in imposing sentence on any person convicted of
a violation of this section, shall order, in addition to any other
sentence imposed and irrespective of any provision of State law, that
such person forfeit to the United States--
``(A) such person's interest in any personal property that
was used or intended to be used to commit or to facilitate the
commission of such violation; and
``(B) any property, real or personal, constituting or
derived from, any proceeds that such person obtained, directly
or indirectly, as a result of such violation.
``(2) The criminal forfeiture of property under this subsection,
any seizure and disposition thereof, and any administrative or judicial
proceeding in relation thereto, shall be governed by the provisions of
section 413 of the Comprehensive Drug Abuse Prevention and Control Act
of 1970 (21 U.S.C. 853), except subsection (d) of that section.''.
(b) Sentencing Commission.--Section 805(c) of the Antiterrorism and
Effective Death Penalty Act of 1996 (Public Law 104-132; 28 U.S.C. 994
note) is amended by striking ``shall amend the sentencing guidelines to
ensure any individual convicted of a violation of paragraph (4) or
(5)'' and inserting ``shall amend the sentencing guidelines to ensure
any individual convicted of a violation of paragraph (4) or a felony
violation of paragraph (5)(A)(i) (but not of paragraph (5)(A)(ii) or
(5)(A)(iii))''.
SEC. 9. INTERCEPTION OF WIRE, ORAL, AND ELECTRONIC COMMUNICATIONS
AMENDMENTS.
Chapter 119 of title 18, United States Code, is amended--
(1) in section 2510(10), by striking ``153(h)'' and
inserting ``153(10)'';
(2) in section 2516(1), by striking ``wire or oral'' and
inserting ``wire, oral, or electronic'';
(3) in the first paragraph (p) of section 2516(1), by
inserting ``section 1030 (relating to computer fraud and
abuse), section 1362 (relating to destruction of government
communications facilities),'' after ``identification
documents),''; and
(4) in section 2516(1), by redesignating the second
paragraph (p) as paragraph (q).
SEC. 10. AMENDMENTS TO THE ELECTRONIC COMMUNICATIONS PRIVACY ACT.
(a) Penalties for Unlawful Access to Stored Communications.--
Section 2701 of title 18, United States Code, is amended--
(1) in subsection (b)(1)--
(A) by striking ``purposes of'' and inserting ``a
tortious or illegal purpose,'';
(B) in subparagraph (A), by striking ``one year''
and inserting ``three years''; and
(C) in subparagraph (B), by striking ``two'' and
inserting ``five''; and
(2) by amending subsection (b)(2) to read as follows:
``(2) in any other case--
``(A) a fine under this title or imprisonment for
not more than one year, or both, in the case of a first
offense under this subparagraph; and
``(B) a fine under this title or imprisonment for
not more than five years, or both, for any subsequent
offense under this subparagraph.''.
(b) Voluntary Disclosure of Customer Communications or Records.--
Section 2702 of title 18, United States Code, is amended--
(1) by amending the catchline to read as follows:
``Sec. 2702. Voluntary disclosure of customer communications or
records'';
(2) in subsection (a)(1)--
(A) by striking ``person or entity providing an''
and inserting ``provider of''; and
(B) by striking ``and'' at the end;
(3) in subsection (a)(2)--
(A) by striking ``person or entity providing'' and
inserting ``provider of''; and
(B) by striking the period at the end and inserting
``; and'';
(4) in subsection (a), by adding the following paragraph
after paragraph (2):
``(3) a provider of remote computing service or electronic
communication service to the public shall not knowingly divulge
a record or other information pertaining to a subscriber to or
customer of such service (not including the contents of
communications covered by paragraph (1) or (2) of this
subsection) to any governmental entity.'';
(5) in the heading of subsection (b) by inserting ``for
Disclosure of Communications'' after ``Exceptions'';
(6) in subsection (b), by striking ``person or entity'' and
inserting ``provider described in subsection (a)''; and
(7) by adding the following subsection after subsection
(b):
``(c) Exceptions for Disclosure of Customer Records.--A provider
described in subsection (a) may divulge a record or other information
pertaining to a subscriber to or customer of such service (not
including the contents of communications covered by subsection (a)(1)
or (a)(2) of this section)--
``(1) as otherwise authorized in section 2703 of this
title;
``(2) with the lawful consent of the customer or
subscriber;
``(3) as may be necessarily incident to the rendition of
the service or to the protection of the rights or property of
the provider of that service;
``(4) to a governmental entity, if the provider reasonably
believes that an emergency involving immediate danger of death
or serious physical injury to any person justifies disclosure
of the information; or
``(5) to any person other than a governmental entity where
not otherwise prohibited by law.''.
(c) Conforming Amendments.--Section 2703 of title 18, United States
Code, as amended by section 7 of this Act, is futher amended--
(1) in subsection (c) by--
(A) redesignating paragraph (2) as paragraph (3);
and
(B) redesignating subparagraph (C) of paragraph (1)
as paragraph (2);
(2) in subsection (c)(1) by--
(A) striking ``(A) Except as provided in
subparagraph (B),'' and inserting ``A governmental
entity may require'';
(B) striking ``may disclose'' and inserting ``to
disclose''; and
(C) striking ``to any person other than a
governmental entity.'';
(D) striking ``(B) A provider of'' through ``to a
governmental entity'';
(E) redesignating subclauses (i) through (iv) as
subparagraphs (A) through (D);
(F) striking ``or'' at the end of subparagraph (C)
as redesignated;
(G) striking the period at the end of subparagraph
(D) as redesignated and inserting ``; or''; and
(H) adding the following subparagraph after
subparagraph (D) as redesignated:
``(E) seeks information pursuant to paragraph (2).''; and
(3) in subsection (c)(2) as redesignated by--
(A) striking ``an administrative subpoena
authorized by a Federal or State statute or a Federal
or State grand jury or trial subpoena'' and inserting
``a Federal or State grand jury or trial subpoena, or a
subpoena or equivalent process authorized by a Federal
or State statute,''; and
(B) striking ``subparagraph (B).'' and inserting
``paragraph (1).''.
(d) Civil Damages.--Section 2707(c) of title 18, United States
Code, is amended by striking ``$1,000'' and inserting ``$5,000''.
(e) Clerical Amendment.--The item relating to section 2702 in the
table of sections at the beginnning of chapter 121 of title 18, United
States Code, is amended to read as follows:
``2702. Voluntary disclosure of customer communications or records.''.
SEC. 11. ADDITIONAL PROVISIONS RELATING TO PEN REGISTERS.
(a) Emergency Provisions.--Section 3125 of title 18, United States
Code, is amended--
(1) in subsection (a)(1)--
(A) in subparagraph (A), by striking ``or'' after
the semicolon;
(B) in subparagraph (B), by striking the comma
after ``crime'' and inserting a semicolon; and
(C) by inserting after subparagraph (B), the
following:
``(C) an immediate threat to a national security
interest; or
``(D) an ongoing attack on the integrity or
availability of a protected computer in violation of
section 1030(a)(5)(A)(i) or 1030(a)(5)(A)(ii) of this
title,'';
(2) at the end of the matter following subsection (a)(2),
by inserting the following: ``In the event an application for
such order is denied, or in any other case where the
installation and use of a pen register or trap and trace device
is terminated without an order having been issued, any
information obtained by such installation and use shall be
treated as having been obtained in violation of this chapter,
and an inventory shall be served as provided for in subsection
(b) of this section on the person named in the application.'';
(3) by inserting the following after subsection (a):
``(b) Within a reasonable time but not later than 90 days after the
filing of an application for an order of approval under subsection
(a)(2) of this section which is denied, the denying judge shall cause
to be served, on the persons named in the order or the application, and
such other parties to the information obtained by such installation and
use of a pen register or trap and trace device as the judge may
determine in his discretion is in the interest of justice, an inventory
which shall include notice of--
``(1) the fact of the entry of the application;
``(2) the date of the entry and the date of the denial of
the application; and
``(3) the fact that during the period covered by the
application, information was obtained by the installation and
use of a pen register or trap and trace device.
The judge, upon the filing of a motion, may in his discretion make
available to such person or his counsel for inspection such portions of
the applications as the judge determines to be in the interest of
justice. On an ex parte showing of good cause to a judge of competent
jurisdiction the serving of the inventory required by this subsection
may be postponed.''; and
(4) by redesignating subsections (b) through (d) as
subsections (c) through (e), respectively.
(b) Definitions.--Section 3127 of title 18, United States Code, is
amended--
(1) in paragraph (6), by striking the period and inserting
``; and''; and
(2) by adding the following paragraph after paragraph (6):
``(7) the term `protected computer' has the meaning set
forth in section 1030 of this title.''.
SEC. 12. GOVERNMENT ACCESS TO CONTENTS OF STORED ELECTRONIC
COMMUNICATIONS.
Section 2703(a) of title 18, United States Code, is amended by
striking ``one hundred and eighty days'' each place it appears and
inserting ``one year''.
SEC. 13. ENHANCED PRIVACY PROTECTION FOR INFORMATION ON COMPUTER
NETWORKS.
Section 2510(17) of title 18, United States Code, is amended--
(1) by striking ``and'' at the end of subparagraph (A); and
(2) by inserting at the end the following:
``(C) any storage of an electronic communication by
an electronic communication service without regard to
whether the communication has been accessed by the
intended recipient; and''.
Purpose and Summary
H.R. 5018 balances the need for privacy and effective law
enforcement in the digital age. H.R. 5018 protects privacy by
raising the standard for the government's access to the
transactional data regarding a person's communications obtained
with so-called pen register or trap and trace devices;
requiring the Federal Government to report annually on the
number of requests it makes to disclose the contents of stored
electronic communications; expanding the statutory exclusionary
rule to also exclude from use in evidence at trial electronic
communications--including electronic communications such as e-
mail that lies in storage with an electronic communications
service--obtained in violation of Federal law, just as
illegally obtained wire and oral electronic communications are
currently excluded, while also allowing the use of such
communications against those who illegally obtained them;
prohibiting the government from obtaining a mobile phone user's
location without first obtaining a court order based on
probable cause, except in the case of certain emergency
situations; requiring high-level Department of Justice approval
for interceptions of electronic communications, as is currently
required for interceptions of wire and oral communications;
increasing the civil penalties that may be applied to those who
illegally intercept electronic communications by raising the
daily damages for each violation; making clear that protections
of electronic communications in electronic storage cover e-mail
messages that have been accessed by the intended recipient but
remain stored by an electronic communications service; and
extending the protection of a warrant requirement to electronic
communications stored for 1 year or less.
H.R. 5018 helps law enforcement capture criminals in the
computer age by allowing electronic communications service
providers to disclose to law enforcement basic customer
records, such as those including names and addresses, in
certain emergency situations; allowing law enforcement to use
devices that track the source and destination of criminal
communications without a court order for up to 48 hours in
situations involving national security and ongoing attacks on
computer networks, but also requires that, if a court finds law
enforcement had an insufficient basis to conduct the
monitoring, the judge must order that the person whose
communications were wrongfully tracked be notified; adding
computer crimes to the enumerated offenses for which
interceptions may be ordered; raising the maximum penalty for
the most serious computer violations to 10 years in prison;
allowing the Federal investigation and prosecution of those who
deface or destroy information or images on computer systems
without causing $5,000 in damages; amending the Federal
sentencing guidelines such that only the most serious computer-
related offenses are subject to a mandatory 6-month sentence;
increasing criminal and civil penalties for the illegal
disclosure of stored electronic communications; and applying
criminal asset forfeiture provisions to computer crimes.
Background and Need for the Legislation
Seventy years ago, Justice Brandeis, in his dissenting
opinion in Olmstead v. United States, 277 U.S. 438, 474 (1928)
(Brandeis, J., dissenting), predicted that ongoing
technological developments would someday enable law enforcement
to search people or their property without physical trespass.
He also cautioned that courts should be alert to these changes
in technology in determining the contours of privacy rights.
See id. at 472-73. Today, advances in telecommunications
technology have dramatically changed people's lives. Internet
technology has increased in popularity and has significantly
changed the way people handle their affairs, and consequently
the government's handling of personal communications.\1\
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\1\ As stated in a recent White House Working Group Report,
``Regulation tied to a particular technology may quickly become
obsolete and require further amendment. In particular, laws written
before the widespread use of the Internet may be based on assumptions
regarding then-current technologies and thus may need to be clarified
or updated to reflect new technological capabilities or realities.''
The Electronic Frontier: The Challenge of Unlawful Conduct Involving
the Use of the Internet, Report by the President's Working Group on
Unlawful Conduct on the Internet (hereinafter ``Report'') at 13.
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Privacy in the Digital Age
The dramatic development of the Internet has transformed
methods of gathering, processing and sharing information. In
1981, fewer than 300 computers were linked to the Internet. See
Reno v. ACLU, 929 F. Supp. 824, 831 (E.D. Pa. 1996). In 1986--
when the Electronic Communications Privacy Act became law--
there were about 50,000. See id. By June 1996, there were over
9.4 million host computers worldwide linked to the Internet. A
recent report by a White House Working Group states that:
There can be little doubt that the Internet, a global
electronic network of computer networks (including the
World Wide Web) that connects people and information,
has revolutionized and will continue to revolutionize
how we communicate, educate ourselves, and buy and sell
goods and services. The Internet has grown from 65
million users in 1998 to over 100 million users in the
U.S. in 1999, or half the country's adult population;
the number of Internet users in the U.S. is projected
to reach 177 million by the end of 2003; and the number
of Internet users worldwide is estimated to reach 502
million by 2003. Business-to-business electronic
commerce totaled over $100 billion in 1999 (more than
doubling from 1998) and is expected to grow to over $1
trillion by 2003.
Report, at 5.
The dramatic development of the Internet as a networked
global communications medium, the expansion in the range of
transactions that occur ``on-line,'' and the amount of
information now stored with third party Internet companies have
produced a qualitative change in the nature of communications
and, accordingly, in the nature and amount of the information
that may be exposed to interception by the government.\2\
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\2\ As stated in the Report:
Indeed, computers have made it possible for law enforcement
agencies to gather some information that may not have been
previously even maintained in the physical world. For
example, an unsophisticated offender, even after
``deleting'' computer files (as opposed to destroying paper
records), might leave evidence of unlawful activity that a
trained computer forensic expert could recover. In
addition, because an average computer with several
gigabytes of memory can contain millions of pages of
information, a law enforcement agent might, pursuant to
lawful authority (such as a warrant), find volumes of
information in one place. Of course, that information is
only useful if there are trained computer experts on hand
in a timely fashion, familiar with the relevant computer
hardware or software configuration, to search the computer
for specific information and to retrieve it in readable
---------------------------------------------------------------------------
form.
Report, at 11.
In light of these developments, existing statutes should be
updated to appropriately balance the concerns of law
enforcement--namely, the concern that they have sufficient
authority to obtain the information they need in order to keep
the public safe--with individuals' concerns that a sufficient
degree of privacy and the integrity of personal information are
maintained in an age of modern communications and information
storage.
The Electronic Communications Privacy Act of 1986
Congress initially responded to the emergence of wireless
communication services and the digital era by enacting the
Electronic Communications Privacy Act (``ECPA'') in 1986. See
Electronic Communications Privacy Act of 1986, Pub. L. No. 99-
508, 100 Stat. 1848 (codified in sections of 18 U.S.C.
including Sec. Sec. 2510-21, 2701-10, 3121-26). The Federal
wiretap statute had been limited to voice communications. ECPA
extended the wiretap provisions to include wireless voice
communications and electronic communications such as e-mail or
other computer-to-computer transmissions.\3\ ECPA was intended
to reestablish the balance between privacy and law enforcement,
which Congress found had been upset to the detriment of privacy
by the development of communications and computer technology
and changes in the structure of the telecommunications
industry. Among the developments noted by Congress were
``large-scale electronic mail operations, cellular and cordless
phones, paging devices, miniaturized transmitters for radio
surveillance, and a dazzling array of digitized networks.''
H.R. Rep. No. 99-647, at 18 (1986). Privacy, Congress
concluded, was in danger of being gradually eroded as
technology advanced. S. Rep. No. 99-541, at 2-3, 5 (1986); H.R.
Rep. No. 99-647, at 16-19 (1986). See also H.R. Rep. No. 99-
647, at 18 (stating that ``[l]egal protection against the
unreasonable use of newer surveillance techniques has not kept
pace with technology. '').
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\3\ ECPA, in fact, did not extend all of the Federal wiretap
protections to electronic communications. The court order authorizing
the interception of electronic communications can be based upon
suspected violations of any Federal felony, rather than the limited
list of crimes that can serve as a predicate for telephone
interceptions. See 18 U.S.C Sec. 2516(3). In addition, no statutory
exclusionary rule applies to non-voice interceptions that violate
procedures required by statute. See 18 U.S.C. Sec. 2515 (exclusionary
rule only refers to wire or oral communications, not electronic
communications).
---------------------------------------------------------------------------
In addition to the goals of privacy and law enforcement,
ECPA sought to advance the goal of supporting the development
and use of these new technologies and services. See S. Rep. No.
99-541, at 5 (noting that legal uncertainty over the privacy
status of new forms of communications ``may unnecessarily
discourage potential customers from using innovative
communications systems ''). It was the intent of Congress to
encourage the proliferation of new communications technologies,
but it recognized that consumers would not trust new
technologies if the privacy of those using them was not
protected. See S. Rep. No. 99-541, at 5 (1986); H.R. Rep. No.
99-647, at 19 (1986).
ECPA was designed to provide rules for government
surveillance in the modern age. However, technology has evolved
in unanticipated ways. The interactive nature of the Internet,
now including elements such as home banking and telecommuting,
has produced an environment in which many people may spend
hours each day ``on-line.'' In this context, a person's
electronic communications will encompass much more today than
it would have in 1986.
A thorough examination of the effects of ECPA's rules
governing governmental access to e-mail and other computer
communications is made difficult because there is no publicly
available data on which to base such an assessment. While the
Federal wiretap provisions require very detailed reports on
interception of voice communications and interception of e-mail
in transit, see 18 U.S.C. Sec. 2519, there is no similar
requirement for collecting and publishing information on the
extent of government access to e-mail and other electronic
communications while they are being stored by service providers
following their transmission.\4\
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\4\ Requirements regarding law enforcement's ``interception'' of
electronic communications apply only to real-time monitoring of
communications. As most electronic communications are stored
immediately after their transmission, communications recovery of stored
electronic communications is by far the easier and presumably the more
common means of government's accessing electronic communications.
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Government Access to Electronic Information Stored By Third Parties
In regard to e-mail and other electronic communications,
ECPA has two purposes. First, ECPA outlaws most unauthorized
private access to stored electronic communications. See 18
U.S.C. Sec. 2701. Second, ECPA provides prerequisites for
government access. See 18 U.S.C. Sec. 2703.
Although ECPA provides some protection for e-mail and other
forms of ``electronic communication'' held in ``electronic
storage,'' the law does not provide stored communications the
same level of protection from government access that is
afforded to wire or electronic communications in transit. See
18 U.S.C. Sec. Sec. 2701-2711. Government access to
communications in transit requires an intercept order issued
pursuant to strict requirements.\5\ However, in order for the
government to immediately seize any ``electronic
communications'' \6\ in ``electronic storage'' \7\ for 180 days
or less requires only an ordinary warrant, and seizure of
electronic communications in storage for more than 180 days \8\
on an ``electronic communications service,'' \9\ requires only
a subpoena or an order issued pursuant to an offering of
``specific and articulable'' facts showing reasonable grounds
to believe that the contents of an ``electronic communication''
are relevant to an ongoing criminal investigation. See 18
U.S.C. Sec. Sec. 2703(a); 2703(b)(B)(ii); 2703(d). Thus, if the
same information were stored in a home file cabinet for more
than 180 days, Federal officials would be required to obtain a
warrant after a stringent showing of ``probable cause'' to
retrieve the information. 18 U.S.C. Sec. 2703; 18 U.S.C.
Sec. 2516. A warrant is also not required for the government to
obtain the contents of electronic communications in a ``remote
computing service.'' See 18 U.S.C. Sec. Sec. 2703(b); 2703(d);
2711(2) (the term ``remote computing service'' means ``the
provision to the public of computer storage or processing
services by means of an electronic communications system'').
Consequently, if the same information is stored by a third
party in electronic form--unbeknownst to the deliverer or
receiver of the information--rather than in a home file
cabinet, Federal officials would be required to obtain a
subpoena or an order, see 18 U.S.C. Sec. 2703(b)(B)(ii),
following a less rigorous showing of need, to retrieve this
same information and subject to a delay in notice to the target
for up to 90 days if a court determines that notification may,
among other things, ``seriously jeopardize an investigation.''
18 U.S.C. Sec. 2705.
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\5\ See 18 U.S.C. Sec. 2518(3) (requiring for a court order that
``(a) there is probable cause for belief that an individual is
committing, has committed, or is about to commit a particular
[enumerated] offense . . .; (b) there is probable cause for belief that
particular communications concerning that offense will be obtained
through such interception; (c) normal investigative procedures have
been tried and have failed or reasonably appear to be unlikely to
succeed if tried or to be too dangerous; (d) . . . there is probable
cause for belief that the facilities from which, or the place where,
the wire, oral, or electronic communications are to be intercepted are
being used, or are about to be used, in connection with the commission
of such offense, or are leased to, listed in the name of, or commonly
used by such person'').
\6\ See 18 U.S.C. Sec. 2510(12) (``electronic communication''
means, with certain exceptions, ``any transfer of signs, signals,
writing, images, sounds, data, or intelligence of any nature
transmitted in whole or in part by a wire, radio, electromagnetic,
photoelectronic or photooptical system that affects interstate or
foreign commerce'').
\7\ See 18 U.S.C. Sec. 2510(17) (``electronic storage'' means ``(A)
any temporary, intermediate storage of a wire or electronic
communication incidental to the electronic transmission thereof; and
(B) any storage of such communication by an electronic communication
service for purposes of backup protection of such communication'').
``[A]ny temporary, intermediate storage'' describes an e-mail message
that is being held by a third party Internet service provider until it
is requested to be read.
\8\ If the communication has been in electronic storage for 180
days or less, the government must obtain a warrant. See 18 U.S.C.
Sec. 2703(a).
\9\ See 18 U.S.C. Sec. 2510(15) (``electronic communication
service'' means ``any service which provides to users thereof the
ability to send or receive wire or electronic communications'').
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H.R. 5018 Would Require the Federal Government to Report Basic
Information Regarding Its Requests for the Disclosure of Stored
Electronic Communications
Personal information in people's homes and file cabinets
are protected by a warrant requirement and it is clear when the
government searches through such materials pursuant to a
warrant. Today, as much of that very same information
gravitates toward new locations on the Internet's landscape,
such as the networks of Internet service providers and other
third parties, it is available to law enforcement under lower
legal standards, without contemporaneous notice, and often
without any notice at all in the case of innocent parties whose
stored electronic communications have been disclosed. See 18
U.S.C. Sec. Sec. 2703; 2705. In order to provide some
opportunity for oversight, H.R. 5018 would require the Federal
Government to produce annual reports regarding its requests for
orders for the disclosure of the contents of electronic
communications, such as the contents of stored e-mails, similar
to but less detailed than the disclosure requirements the
Federal Government must meet under 18 U.S.C. Sec. 2519
regarding the use of electronic wiretaps to intercept telephone
conversations. H.R. 5018 provides for the enumeration of basic
information relating to requests for the disclosure of the
contents of stored electronic communications under 18 U.S.C.
Sec. Sec. 2703(a) and (b)--such as the number of such requests
made and the approximate number of incriminating and non-
incriminating communications disclosed--to help further
Congress' oversight responsibilities and provide the public
with a certain level of comfort that the disclosure of the
contents of electronic communications is reasonably
proportionate to the needs of law enforcement. These reporting
requirements will not unduly burden law enforcement.
The committee recognizes that this bill imposes reporting
requirements on the Administrative Office of the U.S. Courts
that will require the hiring of four additional analysts. This
committee urges Congress to appropriate sufficient funds for
the Administrative Office of the U.S. Courts to comply with the
reporting requirements contained in this bill.
H.R. 5018 Raises the Standard the Government Must Meet to Obtain
Information Under the Pen Register Act
H.R. 5018 would also amend the standard that must be met by
the government before transactional information, such as the
numbers dialed to and from a telephone, may be obtained under
the Pen Register Act.
The Pen Register Act, enacted when the telephone was the
predominant mode of distance communication, currently allows
the government to obtain, with a so-called ``pen register,''
the ``electronic or other impulses which identify the numbers
dialed or otherwise transmitted on the telephone line'' and,
with a so-called ``trap and trace device,'' the ``electronic or
other impulses which identify the originating number'' of the
device from which a wire or electronic communication was
transmitted. 18 U.S.C. Sec. Sec. 3127(3); 3127(4). The
government can obtain this information if a government attorney
has simply ``certified'' to the court ``that the information
likely to be obtained by such installation and use [of the pen
register or trap and trace device] is relevant to an ongoing
criminal investigation.'' 18 U.S.C. Sec. 3123(a). Upon such
``certification'' by a government official, the court ``shall''
issue the order. 18 U.S.C. Sec. 3123(a).
Authority under the Pen Register Act is also used by the
government to obtain e-mail addresses sent and received.\10\
Officials from the Justice Department and the Federal Bureau of
Investigation have testified before the Constitution
Subcommittee that the Pen Register Act grants the government
the authority to capture e-mail addresses as well as telephone
numbers. See Hearing Transcript, ``Fourth Amendment Issues
Raised by the FBI's `Carnivore' Program'' (July 24, 2000) at
37-39 (testimony of Dr. Donald Kerr, Director, Lab Division,
Federal Bureau of Investigation, and Christopher Painter,
Deputy Chief, Computer Crimes and Intellectual Property
Section, Department of Justice). Unlike a telephone number,
however, an e-mail address often indicates not only the
identity of the person communicating, but also their place of
work, as in the e-mail address [email protected].
---------------------------------------------------------------------------
\10\ Although the authority for such use of pen registers is not
without doubt, H.R. 5018 does not attempt to resolve this debate.
---------------------------------------------------------------------------
H.R. 5018 would require that, before a pen register or trap
and trace device could be ordered installed, the government
must first demonstrate to an independent judge that ``specific
and articulable facts reasonably indicate that a crime has
been, is being, or will be committed, and information likely to
be obtained by such installation and use [of a pen register or
trap and trace device] is relevant to an investigation of that
crime.'' The standard that ``specific and articulable facts
reasonably indicate that a crime has been, is being, or will be
committed'' is well supported in the law, and in current
practice. Indeed, the standard is that which the nation's
primary investigative agency, the Federal Bureau of
Investigation, must meet each time it initiates an
investigation.
The Attorney General's Guidelines on General Crimes,
Racketeering Enterprise and Domestic Security/Terrorism
Investigations (``Guidelines''), as in effect today and last
revised by Attorney General Thornburgh in March, 1989, apply to
the Federal Bureau of Investigation, which the Guidelines
describes as ``the primary investigative agency in the Federal
Government.'' Guidelines, at 1. The Guidelines state:
Investigations by the FBI are premised upon the
important duty of government to protect the public
against general crimes, against organized criminal
activity, and against those who would engage in
political or racial terrorism or would destroy our
constitutional system through criminal violence. At the
same time, that duty must be performed with care to
protect individual rights and to ensure that
investigations are confined to matters of legitimate
law enforcement interest . . . [I]nvestigations
governed by these Guidelines are conducted for the
purpose of preventing, detecting, or prosecuting
violations of Federal law. They shall be conducted with
as little intrusion into the privacy of individuals as
the needs of the situation permit.
Id. at 1, 3.
The Guidelines make clear that certain types of
investigative techniques ``shall not'' be used prior to
initiating an investigation, including ``mail covers'' and
``[n]onconsensual electronic surveillance.'' Id. at 5. The
Guidelines also make clear that ``[a] general crimes
investigation may be initiated by the FBI'' only when ``facts
or circumstances reasonably indicate that a Federal crime has
been, is being, or will be committed.'' Id. at 7.\11\ Further,
the Guidelines state that ``[t]he standard of `reasonable
indication' is substantially lower than probable cause . . .
However, the standard does require specific facts or
circumstances indicating a past, current, or impending
violation. There must be an objective, factual basis for
initiating the investigation; a mere hunch is insufficient.''
Id. (Emphasis added).\12\
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\11\ Current law requires that an order permitting the installation
and use of a pen register or trap and trace device be granted only when
there is ``an ongoing criminal investigation.'' 18 U.S.C. Sec. 3123(a).
\12\ The phrase ``specific and articulable facts'' is also a
central part of the Supreme Court's opinion in Terry v. Ohio, 392 U.S.
1, 21 (1968), and it has been seen by subsequent courts as a central
part of the Terry standard:
[T]here is no ready test for determining reasonableness
other than by balancing the need to search (or seize)
against the invasion which the search (or seizure) entails.
And in justifying the particular intrusion the police
officer must be able to point to specific and articulable
facts which, taken together with rational inferences from
those facts, reasonably warrant that intrusion . . .
Anything less would invite intrusions upon constitutionally
guaranteed rights based on nothing more substantial than
inarticulate hunches, a result this Court has consistently
---------------------------------------------------------------------------
refused to sanction.
Terry v. Ohio, 392 U.S. 1, 21 (1968) (citations and quotation marks
omitted).
The footnote at this point of the opinion states, ``This demand for
specificity in the information upon which police action is predicated
is the central teaching of this Court's Fourth Amendment
jurisprudence.'' Id. at n.18. Numerous subsequent cases applying and
amplifying on the Terry standard include the phrase ``specific and
articulable facts.'' See, e.g., Maryland v. Buie, 494 U.S. 325, 327
(1990); Michigan v. Long, 463 U.S. 1032, 1049-1050 (1983) (quoting
Terry v. Ohio, 392 U.S. 1, 21 (1968)).
Kevin DiGregory, Deputy Assistant Attorney General, noted
in written testimony before the Constitution Subcommittee, that
``H.R. 5018 would require such [pen register or trap and trace]
applications to contain `specific and articulable facts' that
would justify the collection of the data'' and that ``the
Justice Department can comply with the added administrative
burdens imposed by increasing this standard [to the standard
imposed by H.R. 5018].'' Written Testimony of Kevin DiGregory
provided to the Constitution Subcommittee, ``Fourth Amendment
Issues Raised by the FBI's `Carnivore' Program'' (July 24,
2000) (Emphasis added.).
H.R. 5018 Would Require High-Level Department of Justice Approval for
Federal Interceptions of Electronic Communications
H.R. 5018 expands 18 U.S.C. Sec. 2516(1) to apply the
existing requirements for authorizing the interception of wire
and oral communications to the authorization of the
interception of electronic communications. These requirements
are that of high-level official approval and the investigation
of an enumerated offense. In addition, because the
investigation of crimes that involve computers and interstate
communications systems often require the interception of
electronic communications, H.R. 5018 adds such crimes to the
list of predicate offenses in 18 U.S.C. Sec. 2516(1).
H.R. 5018 Would Require the Government to Obtain a Warrant to Seize E-
Mail Messages Stored for One Year or Less
H.R. 5018 requires that the government obtain a warrant to
require the disclosure of electronic communications in
electronic storage--namely, an e-mail message stored by an
Internet service provider--if the communication sought has been
stored for 1 year or less, as opposed to the current
requirements for a warrant to disclose electronic
communications in electronic storage for 180 days or less. H.R.
5018 also clarifies that an electronic communication in
``electronic storage'' enjoys the protections provided to such
communications regardless of whether or not the communication
has been ``opened'' or otherwise accessed by the intended
recipient. This would extend ECPA's protections governing
electronic communications in electronic storage, for example,
to the electronic communications of those who use Web-based
electronic communications services, which often remotely store
communications in a third party network even after the messages
have been accessed by the recipient.
H.R. 5018 Would Extend the Statutory Exclusionary Rule to Cover
Illegally Intercepted Electronic Communications and Illegally Disclosed
Electronic Communications in Electronic Storage
The statutory exclusionary rule provides that ``[w]henever
any wire or oral communication has been intercepted, no part of
the contents of such communication and no evidence derived
therefrom may be received in evidence in any trial, hearing, or
other proceeding . . . if the disclosure of that information
would be in violation of this chapter.'' 18 U.S.C. Sec. 2515.
This ``exclusionary rule'' allows individuals about whom
information has been gathered in violation of Federal law to
rely on the exclusion of such information from evidence by
statute, thereby relieving them of the need to litigate whether
or not the action that resulted in the gathering of such
information constituted an ``unreasonable search or seizure''
under the Fourth Amendment. Currently, only illegally obtained
``wire and oral communications'' are excluded from use as
evidence by statute. H.R. 5018 would amend the ``statutory
exclusionary rule'' to also exclude from use as evidence
illegally intercepted ``electronic communications'' and
illegally obtained ``electronic communications in electronic
storage,'' namely stored e-mail messages, resulting from
violations the Electronic Communications Privacy Act, 18 U.S.C.
Sec. 2701 et seq.
H.R. 5018 also allows the introduction of intercepted or
disclosed communications where an individual violates 18 U.S.C.
chapters 119, governing the interception of communications, or
121, governing the disclosure of stored electronic
communications, by engaging in illegal communications
interception or disclosure and the government seeks to use the
communication for the limited purpose of prosecuting that
violator. Conforming amendments are also made to 18 U.S.C.
Sec. Sec. 2517 and 2518(10)(a).
Some in the law enforcement community have expressed
concern that the statutory exclusionary rule does not contain a
good faith exception and therefore could result in the
exclusion of evidence based on technical violations. However,
even in the context of statutory exclusion, courts have held
that when there is a violation of Federal wiretap laws that is
of a constitutional magnitude, the good faith exception does
apply. Thus, the good faith exception has been applied to the
failure of a judge to sign the wiretap order, United States v.
Moore, 41 F.3d 370, 375 (8th Cir. 1994), to inadequacies in the
probable cause showing, United States v. Millan, 817 F.Supp.
1072, 1078 (S.D.N.Y. 1993) (``Even if probable cause is found
lacking, the wiretap order should be suppressed only where: (1)
the issuing judge abandoned his or her detached, neutral role;
(2) the agent was dishonest or reckless in preparing the
affidavit supporting the issuance of the wiretap order; or (3)
the agent's reliance on the warrant was not objectively
reasonable.''), and to other defects. See, e.g., United States
v. Ferrara, 771 F.Supp. 1266, 1314 (D. Mass 1991) (finding that
even if application for warrant to conduct roving electronic
surveillance to intercept certain criminal communications of
some members of suspected organization were required to
disclose other authorizing electronic surveillance of other
members of that same suspected organization, failure to
disclose that surveillance would not justify suppression of
evidence obtained pursuant to warrant because other authorizing
surveillance was not disclosed because affiant had good faith
belief such disclosure was not legally required and it was in
best interests of investigation not to divulge them
gratuitously) (citing 18 U.S.C. Sec. 2518(1)(c), (11)(a)).
Moreover, as to nonconstitutional violations of the Federal
wiretap laws, the Supreme Court has held that evidence cannot
be excluded under 18 U.S.C. Sec. 2515 for minor or technical
violations. The Court held in United States v. Giordano, 416
U.S. 505, 527 (1994) that suppression under 18 U.S.C. Sec. 2515
is required only for ``failure to satisfy any of those
statutory requirements that directly and substantially
implement the congressional intention to limit the use of
intercept procedures to those situations clearly calling for
the employment of this extraordinary investigative technique.''
In determining whether suppression is warranted, courts must
examine whether the violated statutory requirement occupies ``a
central role in the statutory scheme.'' Id. at 528 (holding
that, although wiretap application had been approved by the
Executive Assistant to the Attorney General rather than by
Attorney General himself or a designated Assistant Attorney
General, application on its face identified Assistant Attorney
General as authorizing application, and wiretap materials were
not subject to statutory exclusionary rule). See also United
States v. Chavez, 416 U.S. 562, 578 (1974) (misidentification
of officer authorizing wiretap application did not affect the
fulfillment of any of the reviewing or approval functions
required by Congress and therefore was not ``unlawful'' under
the Federal wiretap laws and subject to statutory exclusionary
rule). Thus, as one leading treatise states, ``many violations
of the requirements of Title III [the Federal wiretap statute]
will lead to either no suppression or only partial suppression
. . . In most jurisdictions there are relatively few violations
which will lead to the ultimate and absolute sanction of
complete suppression of all surveillance evidence . . . In many
instances the government has disregarded procedural protections
established by Section 2518 without affecting the admissibility
of the eavesdropping evidence.'' James G. Carr, The Law of
Electronic Surveillance, Sec. 6.3 (1995).
H.R. 5018 Would Require the Government to Meet a Probable Cause
Standard to Obtain Information Disclosing the Physical Location of
Mobile Phone Users, With Certain Exceptions
Location tracking of users of wireless communications
services is an emerging concern. Wireless telephones, which are
increasingly used, generate information that can be used to
physically track the movement of users. Initially limited to
cell site antenna location, this tracking data is becoming more
sophisticated with the introduction of new technologies. Still,
persons in emergency situations want to be found when they call
emergency services such as ``911,'' and the government should
have the ability to locate suspected criminals in those
circumstances. Currently, there are no clear legal standards
governing when the government can collect location information
from cell phone companies. Law enforcement now uses its
authority under 18 U.S.C. Sec. 2703(d) (requirements for
government access to business ``records'') to obtain location
information from mobile phone service providers. However, 18
U.S.C. Sec. 2703(d) does not contain any emergency exceptions
to its requirements.
H.R. 5018 provides that the government must show probable
cause before it may obtain information disclosing the location
of a customer or user of a mobile phone from a mobile phone
service provider. Certain exceptions to this provision are
provided in the bill for disclosing such information to
emergency service providers such as hospitals, or to the legal
guardian or members of the user's immediate family in
situations involving the risk of death or serious physical
harm, or with the express consent of the user of the mobile
phone equipment. These exceptions are based on 47 U.S.C.
Sec. 222, which already prohibits cell phone companies from
disclosing customer location information to marketers and other
commercial entities without express customer consent or under
other exceptions. See 47 U.S.C. Sec. 222(d).
H.R. 5018 Would Increase Penalties for Illegally Intercepting or
Disclosing Electronic Communications
H.R. 5018 contains provisions that increase the minimum
damages that may be awarded under 18 U.S.C. Sec. 2520 to those
whose electronic communications were illegally intercepted from
$100 per day per violation, to $500 per day per violation.
H.R. 5018 also contains provisions raising the minimum
criminal penalties under 18 U.S.C. Sec. 2701 for the illegal
disclosure of stored electronic communications from one to 3
years for first time offenses, and from two to 5 years for
repeat offenses involving the disclosure of stored electronic
communications for tortious or illegal purposes, commercial
advantage, malicious destruction or damage, or private
commercial gain. H.R. 5018 also increases the minimum civil
damages available under 18 U.S.C. Sec. 2707 to those whose
stored electronic communications are illegally disclosed. from
$1,000 to $5,000. An increase in the penalties for such
violations is appropriate, considering that more and more
sensitive and personal information is gravitating from
citizens' file cabinets to computing services on third party
networks.
Law Enforcement Concerns: Investigating and Prosecuting Criminals in
the Digital Age
The new digital age has spawned new digital crimes. As
stated by a recent White House Working Group Report, ``Prior
technological advances--the automobile, the telegraph, and the
telephone, for example--have brought dramatic improvements for
society, but have also created new opportunities for
wrongdoing. The same is true of the Internet, which provides
unparalleled opportunities for socially beneficial endeavors
such as education, research, commerce, entertainment, and
debate on public affairs in ways that we may not now even be
able to imagine. By the same token, however, individuals who
wish to use a computer as a tool to facilitate unlawful
activity may find that the Internet provides a vast,
inexpensive, and potentially anonymous way to commit unlawful
acts, such as fraud, the sale or distribution of child
pornography, the sale of guns or drugs or other regulated
substances without regulatory protections, and the unlawful
distribution of computer software or other creative material
protected by intellectual property rights.'' Report, at 4.
As described in the Report, ``These needs and challenges
are not theoretical. Law enforcement agencies today, for
example, are faced with the need to evaluate and to determine
the source, typically on very short notice, of anonymous e-
mails that contain bomb threats against a given building or
threats to cause serious bodily injury.'' Id. H.R. 5018
contains several provisions that would help law enforcement
meet these new needs and challenges.
H.R. 5018 Would Allow the Disclosure of Basic Customer Records By
Electronic Communications Service Providers In Emergency Situations
H.R. 5018 would grant electronic communications service
providers the right, but not impose on them the obligation, to
disclose basic customer records in emergency situations. Under
current law, an electronic communications service provider may
disclose the contents of a communication under 18 U.S.C.
Sec. 2702(b)--for example, the substance of an e-mail message--
to (1) an addressee or intended recipient of such
communication; (2) with the lawful consent of the originator or
an addressee; (3) as may be necessarily incident to the
rendition of the service or to the protection of the rights or
property of the provider of that service; or (4) to a law
enforcement agency if the contents appear to pertain to the
commission of a crime. Under current law, however, if an
Internet service provider's customer receives an e-mail
containing a death threat from another customer of the same
Internet service provider, the provider is limited in what
actions it may take. It may disclose the contents of a
communication to law enforcement under 18 U.S.C.
Sec. 2703(b)(3), but current law does not expressly authorize a
provider to voluntarily provide to law enforcement the
identity, home address, and other basic subscriber information
of the user making the threat. See 18 U.S.C. Sec. 2703(c)(1)(B)
and (C) (permitting disclosure to government entities only in
response to legal process).
As law enforcement already has the appropriate authority to
disclose the contents of customer communications in such
circumstances, it is appropriate to allow providers to disclose
customer records, which are not content, in certain emergency
situations, as the right to disclose the contents of
communications implies the less intrusive ability to disclose
non-content records. H.R. 5018 would allow providers to
disclose non-content customer records, including a subscriber's
login records, with the lawful consent of the customer or
subscriber; as may be necessarily incident to the rendition of
service or to the protection of the rights or property of the
provider of that service; or to a governmental entity, if the
provider reasonably believes that an emergency involving
immediate danger of death or serious physical injury to any
person justifies disclosure of the information. Furthermore,
providers should have the right to disclose the facts
surrounding attacks on their systems. When an authorized user
of an Internet service launches a network intrusion against
their Internet service provider, the provider should have the
legal right to report the complete details of the crime to law
enforcement.
H.R. 5018 Would Allow Law Enforcement to Install Pen Register and Trap
and Trace Devices Without a Court Order in Emergency Situations
Involving Threats to National Security and Ongoing Attacks on Computer
Networks
Existing law empowers law enforcement to use trap and trace
devices in emergency situations--such as when it encounters an
immediate danger of death or serious bodily injury or when it
is investigating organized crime--without getting prior
approval from a court. Law enforcement authorities must then
obtain court approval within 48 hours. H.R. 5018 would create
two more emergency exceptions, those involving immediate
threats to national security corresponding to the emergency
wiretap provisions at 18 U.S.C. Sec. 2518(7)(a)(ii), and
investigations of ongoing intrusions into computer networks. In
the latter case, rapid investigative response is made essential
by the speed with which, for example, computer viruses are
spread through a computer network. In many cases, if
investigators cannot trace the computer criminal while the
criminal is actively connected to the computers being attacked,
it may prove impossible to do so afterwards. Any abuse of these
or the other emergency provisions would be deterred by the
provisions in H.R. 5018 requiring that when a court determines
that law enforcement did not act reasonably under these
emergency provisions, the person regarding whom information had
been gathered must be notified, just as such notification is
provided for when the emergency provisions of the Federal
wiretap law are found by a court to have been exercised
inappropriately. See 18 U.S.C. Sec. 2518(7)(b).
H.R. 5018 Would Raise Penalties and Expand Federal Jurisdiction Over
Serious Computer Crimes and Amend the Sentencing Guidelines Such That
Only the Most Serious Computer Crime Violations Are Subject to
Mandatory Six-Month Sentences
H.R. 5018 would raise the maximum penalty, from five to 10
years, for computer crime felony violations that are knowingly
and intentionally committed and which cause severe damage to
governmental and private computer systems. Currently, a first
time offense for such felonies could be met with a maximum of 5
years in prison. H.R. 5018 raises that minimum penalty to 10
years. The current 5 year maximum does not adequately take into
account the seriousness of these crimes. For example, David
Smith recently pled guilty to committing such serious felony
offenses for releasing the ``Melissa'' virus in 1999, which
caused massive damage to thousands of computers across the
Internet. Although Smith agreed as part of his plea that his
conduct caused over $80 million worth of damage--the maximum
dollar figure contained in the Sentencing Guidelines--estimates
of the real amount of damage have run much higher. See T.
Brune, ``Cyber-Crooks Elude Justice, Just a Handful Get
Punished,'' Newsday (February 25, 2000) at A7. H.R. 5018 also
creates a Federal offense when an attack on a protected
computer modifies or impairs, or threatens to modify or impair,
the medical examination, diagnosis, treatment, or care of one
or more individuals, causes physical injury to any individual,
or threatens public health or safety. H.R. 5018 also creates a
new category of felony violations where a hacker causes damage
to a computer system used by or for a government entity in
furtherance of the administration of justice, national defense,
or national security. Attacks on computers used in the nation's
defense that occur during periods of active military engagement
are particularly serious, even if they do not disrupt the
military's defense capabilities, because they divert time and
attention away from the military's proper objectives.
Further, H.R. 5018 clarifies that damage to multiple
protected computers must be aggregated in determining whether a
violation has exceeded the $5,000 threshold for a Federal
offense. For example, a person may unlawfully access five
computers on a network on 10 different dates but cause only
$1,000 damage to each computer during each intrusion. H.R. 5018
would allow a count to be brought for the full $50,000 of
damage caused by the individual. Aggregating the damage caused
to the various computers properly measures an individual's
culpability for such conduct. This would bring the statute into
harmony with others permitting the aggregation of related
conduct in determining the level of culpability. See, e.g.,
United States v. Griffith, 17 F.3d 865 (6th Cir. 1994) (value
of various shipments of stolen property, none of which was
valued at $5,000, was properly aggregated in determining
whether government met $5,000 jurisdictional requirement for
felony interstate transportation of stolen goods).
H.R. 5018 would also apply the criminal forfeiture rules to
computer hacking crimes and require anyone convicted of a
violation of the computer crime laws to forfeit to the United
States property used or proceeds gained in the commission of
the crime. It is the experience of law enforcement that
forfeiture of property used in the commission of computer crime
or proceeds derived therefrom can provide effective punishment
and deterrence, and that it makes little sense to return
computers to convicted computer criminals. These criminal
forfeiture provisions are based on the familiar forfeiture
procedures set forth in section 413 of the Comprehensive Drug
Abuse Prevention and Control Act of 1970, 21 U.S.C. Sec. 853.
H.R. 5018 also expressly defines the term ``loss'' as used
in the statute to account for a wide range of possible harms
done to the victims of computer crimes, including reasonable
costs of responding to the offense, conducting a damage
assessment, restoring the system and data to their condition
prior to the offense, and any lost revenue or costs incurred
because of the interruption of service.
H.R. 5018 also allows the Federal Government to investigate
and prosecute offenses in which a person intentionally defaced,
damaged or destroyed images or information made available to
the public, such as the defacing of images or information on
Web sites, even if such offenses did not result in more than
$5,000 in damages. This provision responds to a serious problem
that came to the attention of the committee when the Web site
of a non-profit organization became the victim of a computer
hacking attack in which educational material was removed and
replaced with images of a bomb, skull and crossbones,
obscenities, and links to Web sites that espouse contrary
points of view. The hackers also violated the privacy of a
number of visitors to the Web site by stealing all of the e-
mails sent to the site. In response to a request by the
committee's ranking member to the Department of Justice,
seeking an investigation into the Web site attack, the
Department responded that limitations in existing law precluded
an investigation because the resulting damage to the site was
less than the $5,000 Federal jurisdictional limit. This kind of
Web site attack prevents a non-profit organization from using
the Internet as a forum for its free expressive activities, and
a criminal who carries out such activities in cyberspace should
be treated similarly to a criminal who steals a non-profit
organization's direct mail shipments or replaces an
organization's national radio advertisements with its own. To
that end, this provision extends Federal jurisdiction to the
investigation and prosecution of intentional efforts to deface,
damage, or destroy images or information made available to the
public and protected by the first amendment. This provision,
however, would not apply to expression on the Internet that
does not deface, damage, or destroy other expression, such as
e-mails sent which may express views contrary to those
expressed elsewhere on a Web site but which do not
intentionally deface, damage or destroy such expression.
Finally, H.R. 5018 would give prosecutors more flexibility
in charging computer criminals. Section 805 of the
Antiterrorism and Effective Death Penalty Act of 1996
transmitted a directive to the Sentencing Commission to ensure
that all individuals convicted of a violation of 18 U.S.C.
Sec. 1030(a)(4) or (a)(5) be imprisoned for not less than 6
months. A mandatory 6 month sentence, however, may be
inappropriate for violations of the least serious computer
hacking offenses, which apply to those who have intentionally
accessed a protected computer, but did not intend to cause
damage. Consequently, prosecutors may be reluctant to charge
those committing these less serious hacker violations when the
minimum sentence is 6 months in prison. In those cases in which
mandatory imprisonment for 6 months might not be the most
appropriate remedy, it is nonetheless best that Federal
conviction occur. A conviction, even one not resulting in
mandatory imprisonment, will become part of a defendant's
criminal history and qualify the defendant for the more
substantial recidivist provisions of the computer crime laws if
the defendant does not reform after the first conviction. H.R.
5018 restricts the 6 month minimum sentence to only the more
serious computer crimes and better ensures that the punishment
fits the crime.
Hearings
The committee's Subcommittee on the Constitution held 3
days of hearings on issues addressed by H.R. 5018 on April 6,
2000, July 24, 2000 and September 6, 2000. On April 6, 2000,
testimony was received from several witnesses: James X.
Dempsey, Senior Staff Counsel, The Center for Democracy and
Technology; Gregory Nojeim, Legislative Counsel, American Civil
Liberties Union, Washington National Office; Kevin V.
DiGregory, Deputy Associate Attorney General, Department of
Justice; accompanied by David Green, Deputy Chief, Computer
Crime and Intellectual Property Section, Department of Justice;
Stewart Baker, Steptoe & Johnson; Frederick Juergens Baker,
Chair, Internet Engineering Task Force; Clifford S. Fishman,
Professor of Law, Columbus School of Law, The Catholic
University of America; Robert Corn-Revere, Hogan & Hartson;
Jeff B. Richards, Executive Director, Internet Alliance; Nicole
Wong, Perkins Coie, San Francisco; and Jeffrey Rosen, Associate
Professor of Law, The George Washington University Law School.
On July 24, 2000, testimony was received from several
witnesses: Dr. Donald M. Kerr, Director, Lab Division, Federal
Bureau of Investigation; Larry R. Parkinson, General Counsel,
Federal Bureau of Investigation; Kevin V. DiGregory, Deputy
Associate Attorney General, Department of Justice; Alan
Davidson, Staff Counsel, The Center for Democracy and
Technology; Matt Blaze, Research Scientist; Barry Steinhardt,
Associate Director, American Civil Liberties Union; Robert
Corn-Revere, Attorney, Hogan & Hartson; Stewart Baker,
Attorney, Steptoe & Johnson; Peter William Sachs, ICONN,
L.L.C.; and Tom Perrine, Principal Investigator, Pacific
Institute for Computer Security.
On September 6, 2000, testimony was received from the
following witnesses: Kevin DiGregory, Deputy Associate Attorney
General, Department of Justice; accompanied by David Green,
Deputy Chief, Computer Crime and Intellectual Property Section;
James Dempsey, Senior Staff Counsel, The Center for Democracy
and Technology; Gregory Nojeim, Legislative Counsel, the
American Civil Liberties Union; Robert Corn-Revere, Hogan &
Hartson; and Marc Rotenberg, Director, Electronic Privacy
Information Center.
Committee Consideration
On September 14, 2000, the Subcommittee on the Constitution
met in open session and ordered favorably reported the bill
H.R.5018 with an amendment in the nature of a substitute, by a
voice vote, a quorum being present. On September 20 and 26,
2000, the committee met in open session and ordered favorably
reported the bill H.R. 5018 with an amendment in the nature of
a substitute by a recorded vote of 20 to 1, a quorum being
present.
Votes of the Committee
1. Mr. Scott Amendment to H.R. 5018 which removed
provisions allowing the Federal investigation and prosecution
of computer crimes committed by juveniles passed favorably by a
voice vote.
2. On September 20, 2000, Mr. Barr offered an amendment
that would extend the warrant requirement to the disclosure of
electronic communications in electronic storage for 1 year or
less. This amendment was defeated by a rollcall vote of 10 to
10.
ROLLCALL NO. 1
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Sensenbrenner............................................... X .............. ..............
Mr. McCollum.................................................... .............. .............. ..............
Mr. Gekas....................................................... .............. .............. ..............
Mr. Coble....................................................... .............. X ..............
Mr. Smith (TX).................................................. .............. .............. ..............
Mr. Gallegly.................................................... .............. X ..............
Mr. Canady...................................................... .............. X ..............
Mr. Goodlatte................................................... .............. .............. ..............
Mr. Chabot...................................................... .............. X ..............
Mr. Barr........................................................ X .............. ..............
Mr. Jenkins..................................................... X .............. ..............
Mr. Hutchinson.................................................. .............. X ..............
Mr. Pease....................................................... X .............. ..............
Mr. Cannon...................................................... .............. X ..............
Mr. Rogan....................................................... .............. .............. ..............
Mr. Graham...................................................... .............. .............. ..............
Ms. Bono........................................................ .............. X ..............
Mr. Bachus...................................................... .............. .............. ..............
Mr. Scarborough................................................. X .............. ..............
Mr. Vitter...................................................... .............. .............. ..............
Mr. Conyers..................................................... X .............. ..............
Mr. Frank....................................................... .............. .............. ..............
Mr. Berman...................................................... .............. .............. ..............
Mr. Boucher..................................................... .............. .............. ..............
Mr. Nadler...................................................... X .............. ..............
Mr. Scott....................................................... X .............. ..............
Mr. Watt........................................................ .............. X ..............
Ms. Lofgren..................................................... .............. .............. ..............
Ms. Jackson Lee................................................. X .............. ..............
Ms. Waters...................................................... X .............. ..............
Mr. Meehan...................................................... .............. .............. ..............
Mr. Delahunt.................................................... .............. .............. ..............
Mr. Wexler...................................................... .............. .............. ..............
Mr. Rothman..................................................... .............. X ..............
Ms. Baldwin..................................................... .............. .............. ..............
Mr. Weiner...................................................... .............. .............. ..............
Mr. Hyde, Chairman.............................................. .............. X ..............
-----------------------------------------------
Total....................................................... 10 10 ..............
----------------------------------------------------------------------------------------------------------------
3. At the next Full Committee meeting, Mr. Cannon moved to
reconsider the vote by which the Barr amendment was defeated.
The motion to reconsider was agreed to by voice vote, and the
Barr amendment was agreed to by voice vote.
4. Mr. Conyers offered an amendment which would make it a
Federal offense to deface or destroy information or images on
computer systems even if the resulting damage does amount to
$5,000 or more. Passed by voice vote.
5. Mr. Nadler, Mr. Conyers and Mr. Barr offered an
amendment which would add to the definition of ``electronic
storage'' those communications stored by an electronic
communications service without regard to whether they had been
accessed by the intended recipient. Passed favorably by voice
vote.
6. Mr. Nadler and Mr. Barr offered an amendment which would
add provisions to the Federal reporting requirements. This
amendment was defeated by a rollcall vote of 9 to 16.
ROLLCALL NO. 2
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Sensenbrenner............................................... .............. .............. ..............
Mr. McCollum.................................................... .............. .............. ..............
Mr. Gekas....................................................... .............. X ..............
Mr. Coble....................................................... X .............. ..............
Mr. Smith (TX).................................................. .............. X ..............
Mr. Gallegly.................................................... .............. X ..............
Mr. Canady...................................................... .............. X ..............
Mr. Goodlatte................................................... .............. X ..............
Mr. Chabot...................................................... .............. X ..............
Mr. Barr........................................................ X .............. ..............
Mr. Jenkins..................................................... .............. X ..............
Mr. Hutchinson.................................................. .............. X ..............
Mr. Pease....................................................... .............. X ..............
Mr. Cannon...................................................... .............. .............. ..............
Mr. Rogan....................................................... .............. X ..............
Mr. Graham...................................................... .............. X ..............
Ms. Bono........................................................ .............. .............. ..............
Mr. Bachus...................................................... .............. .............. ..............
Mr. Scarborough................................................. .............. .............. ..............
Mr. Vitter...................................................... .............. .............. ..............
Mr. Conyers..................................................... X .............. ..............
Mr. Frank....................................................... X .............. ..............
Mr. Berman...................................................... .............. .............. ..............
Mr. Boucher..................................................... .............. .............. ..............
Mr. Nadler...................................................... X .............. ..............
Mr. Scott....................................................... X .............. ..............
Mr. Watt........................................................ X .............. ..............
Ms. Lofgren..................................................... .............. X ..............
Ms. Jackson Lee................................................. .............. X ..............
Ms. Waters...................................................... X .............. ..............
Mr. Meehan...................................................... .............. .............. ..............
Mr. Delahunt.................................................... .............. .............. ..............
Mr. Wexler...................................................... .............. .............. ..............
Mr. Rothman..................................................... .............. X ..............
Ms. Baldwin..................................................... X .............. ..............
Mr. Weiner...................................................... .............. X ..............
Mr. Hyde, Chairman.............................................. .............. X ..............
-----------------------------------------------
Total....................................................... 9 16 ..............
----------------------------------------------------------------------------------------------------------------
7. Ms. Lofgren offered an amendment which would extend the
statutory exclusionary rule to exclude from evidence illegally
disclosed electronic communications in electronic storage. This
amendment was agreed to by a rollcall vote of 9 to 7.
ROLLCALL NO. 3
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Sensenbrenner............................................... .............. .............. ..............
Mr. McCollum.................................................... .............. .............. ..............
Mr. Gekas....................................................... .............. .............. ..............
Mr. Coble....................................................... .............. X ..............
Mr. Smith (TX).................................................. .............. X ..............
Mr. Gallegly.................................................... .............. .............. ..............
Mr. Canady...................................................... .............. X ..............
Mr. Goodlatte................................................... .............. .............. ..............
Mr. Chabot...................................................... .............. .............. ..............
Mr. Barr........................................................ X .............. ..............
Mr. Jenkins..................................................... .............. X ..............
Mr. Hutchinson.................................................. .............. X ..............
Mr. Pease....................................................... X .............. ..............
Mr. Cannon...................................................... .............. .............. ..............
Mr. Rogan....................................................... .............. .............. ..............
Mr. Graham...................................................... .............. X ..............
Ms. Bono........................................................ .............. .............. ..............
Mr. Bachus...................................................... .............. .............. ..............
Mr. Scarborough................................................. X .............. ..............
Mr. Vitter...................................................... .............. .............. ..............
Mr. Conyers..................................................... .............. .............. ..............
Mr. Frank....................................................... .............. .............. ..............
Mr. Berman...................................................... X .............. ..............
Mr. Boucher..................................................... .............. .............. ..............
Mr. Nadler...................................................... X .............. ..............
Mr. Scott....................................................... .............. .............. ..............
Mr. Watt........................................................ X .............. ..............
Ms. Lofgren..................................................... X .............. ..............
Ms. Jackson Lee................................................. .............. .............. ..............
Ms. Waters...................................................... X .............. ..............
Mr. Meehan...................................................... .............. .............. ..............
Mr. Delahunt.................................................... .............. .............. ..............
Mr. Wexler...................................................... .............. .............. ..............
Mr. Rothman..................................................... X .............. ..............
Ms. Baldwin..................................................... .............. .............. ..............
Mr. Weiner...................................................... .............. .............. ..............
Mr. Hyde, Chairman.............................................. .............. X ..............
-----------------------------------------------
Total....................................................... 9 7 ..............
----------------------------------------------------------------------------------------------------------------
8. Ms. Waters offered an amendment which would require
notification to all those whose communications had been traced
under an order for the installation of a pen register or trap
and trace device. The amendment was defeated by a rollcall vote
of 9 to 12.
ROLLCALL NO. 4
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Sensenbrenner............................................... .............. .............. ..............
Mr. McCollum.................................................... .............. .............. ..............
Mr. Gekas....................................................... .............. .............. ..............
Mr. Coble....................................................... .............. X ..............
Mr. Smith (TX).................................................. .............. X ..............
Mr. Gallegly.................................................... .............. X ..............
Mr. Canady...................................................... .............. X ..............
Mr. Goodlatte................................................... .............. .............. ..............
Mr. Chabot...................................................... .............. X ..............
Mr. Barr........................................................ X .............. ..............
Mr. Jenkins..................................................... .............. X ..............
Mr. Hutchinson.................................................. .............. X ..............
Mr. Pease....................................................... .............. X ..............
Mr. Cannon...................................................... .............. X ..............
Mr. Rogan....................................................... .............. X ..............
Mr. Graham...................................................... .............. .............. ..............
Ms. Bono........................................................ .............. .............. ..............
Mr. Bachus...................................................... .............. .............. ..............
Mr. Scarborough................................................. X .............. ..............
Mr. Vitter...................................................... .............. .............. ..............
Mr. Conyers..................................................... .............. .............. ..............
Mr. Frank....................................................... .............. .............. ..............
Mr. Berman...................................................... X .............. ..............
Mr. Boucher..................................................... .............. .............. ..............
Mr. Nadler...................................................... X .............. ..............
Mr. Scott....................................................... X .............. ..............
Mr. Watt........................................................ X .............. ..............
Ms. Lofgren..................................................... X .............. ..............
Ms. Jackson Lee................................................. .............. .............. ..............
Ms. Waters...................................................... X .............. ..............
Mr. Meehan...................................................... .............. .............. ..............
Mr. Delahunt.................................................... .............. .............. ..............
Mr. Wexler...................................................... .............. .............. ..............
Mr. Rothman..................................................... .............. X ..............
Ms. Baldwin..................................................... .............. .............. ..............
Mr. Weiner...................................................... X .............. ..............
Mr. Hyde, Chairman.............................................. .............. X ..............
-----------------------------------------------
Total....................................................... 9 12 ..............
----------------------------------------------------------------------------------------------------------------
9. Motion to report favorably to the House the bill H.R.
5018, with an amendment in the nature of a substitute was
agreed to by a rollcall vote of 20 to 1.
ROLLCALL NO. 5
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Sensenbrenner............................................... .............. .............. ..............
Mr. McCollum.................................................... .............. .............. ..............
Mr. Gekas....................................................... .............. .............. ..............
Mr. Coble....................................................... X .............. ..............
Mr. Smith (TX).................................................. X .............. ..............
Mr. Gallegly.................................................... X .............. ..............
Mr. Canady...................................................... X .............. ..............
Mr. Goodlatte................................................... .............. .............. ..............
Mr. Chabot...................................................... X .............. ..............
Mr. Barr........................................................ X .............. ..............
Mr. Jenkins..................................................... X .............. ..............
Mr. Hutchinson.................................................. X .............. ..............
Mr. Pease....................................................... X .............. ..............
Mr. Cannon...................................................... X .............. ..............
Mr. Rogan....................................................... .............. .............. ..............
Mr. Graham...................................................... X .............. ..............
Ms. Bono........................................................ .............. .............. ..............
Mr. Bachus...................................................... .............. .............. ..............
Mr. Scarborough................................................. X .............. ..............
Mr. Vitter...................................................... .............. .............. ..............
Mr. Conyers..................................................... .............. .............. ..............
Mr. Frank....................................................... .............. .............. ..............
Mr. Berman...................................................... X .............. ..............
Mr. Boucher..................................................... .............. .............. ..............
Mr. Nadler...................................................... X .............. ..............
Mr. Scott....................................................... X .............. ..............
Mr. Watt........................................................ X .............. ..............
Ms. Lofgren..................................................... X .............. ..............
Ms. Jackson Lee................................................. .............. .............. ..............
Ms. Waters...................................................... X .............. ..............
Mr. Meehan...................................................... .............. .............. ..............
Mr. Delahunt.................................................... .............. .............. ..............
Mr. Wexler...................................................... .............. .............. ..............
Mr. Rothman..................................................... X .............. ..............
Ms. Baldwin..................................................... .............. .............. ..............
Mr. Weiner...................................................... .............. X ..............
Mr. Hyde, Chairman.............................................. X .............. ..............
-----------------------------------------------
Total....................................................... 20 1 ..............
----------------------------------------------------------------------------------------------------------------
Committee Oversight Findings
In compliance with clause 3(c)(1) of rule XIII of the Rules
of the House of Representatives, the committee reports that the
findings and recommendations of the committee, based on
oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.
Committee on Government Reform Findings
No findings or recommendations of the Committee on
Government Reform were received as referred to in clause
3(c)(4) of rule XIII of the Rules of the House of
Representatives.
New Budget Authority and Tax Expenditures
Clause 3(c)(2) of House Rule XIII is inapplicable because
this legislation does not provide new budgetary authority or
increased tax expenditures.
Congressional Budget Office Cost Estimate
In compliance with clause 3(c)(3) of rule XIII of the Rules
of the House of Representatives, the committee sets forth, with
respect to the bill, H.R. 5018, the following estimate and
comparison prepared by the Director of the Congressional Budget
Office under section 402 of the Congressional Budget Act of
1974:
U.S. Congress,
Congressional Budget Office,
Washington, DC, October 3, 2000.
Hon. Henry J. Hyde, Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 5018, the
Electronic Communications Privacy Act of 2000.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Mark Hadley,
who can be reached at 226-2860.
Sincerely,
Enclosure
cc:
Honorable John J. Conyers Jr.
Ranking Democratic Member
H.R. 5018--Electronic Communications Privacy Act of 2000.
Based on information from the Department of Justice, CBO
estimates that implementing the reporting requirements of H.R.
5018 would cost federal law enforcement agencies about $1
million a year. Enacting H.R. 5018 could affect direct spending
and receipts; therefore, pay-as-you-go procedures would apply
to the bill. However, CBO estimates that any impact on direct
spending and receipts would not be significant.
H.R. 5018 would require greater judicial oversight when law
enforcement officials monitor the electronic communications
(such as e-mail) of suspected criminals. The bill would require
law enforcement officials who request court orders to monitor
these communications to provide evidence of a crime and show
that information related to the crime is likely to be contained
in such communications. (Under current law, officials need to
certify that these communications are related to a criminal
investigation.) The bill would prohibit illegally obtained
electronic communications from being used as evidence in
trials. In addition, the bill would require federal law
enforcement agencies to report annually to the Congress on the
number and nature of their requests for such orders.
The bill would increase penalties for certain crimes, and
establish federal crimes related to the unauthorized disclosure
or distruction of certain electronic information. As a result,
the federal government might be able to pursue cases that it
otherwise would not be able to prosecute. CBO expects that any
increase in federal costs for law enforcement, court
proceedings, or prison operations would not be significant,
however, because of the small number of cases likely to be
involved. Any such additional costs would be subject to the
availability of appropriated funds.
Because those prosecuted and convicted under H.R. 5018
could be subject to criminal fines, and increased fines and
penalties, the federal government might collect additional
fines if the bill is enacted. Collections of such fines are
recorded in the budget as governmental receipts (revenues),
which are deposited in the Crime Victims Fund and spent in
subsequent years. CBO expects that any additional receipts and
direct spending would be less than $500,000 each year.
H.R. 5018 also would increase judicial oversight of efforts
by state and local law enforcement agencies to monitor certain
electronic communications. Such requirements would constitute
intergovernmental mandates (on both courts and law enforcement
agencies) as defined in th Unfunded Mandates Reform Act (UMRA).
Based on information from state and local public safety
officials, however, CBO estimates that the costs of complying
with these new requirements would not likely be significant,
and would not exceed the threshold established in UMRA ($55
million in 2000, adjusted annually for inflation). The bill
contains no new private-sector mandates as defined by UMRA.
The CBO staff contacts are Mark Hadley (for federal costs),
who can be reached at 226-2860, and Theresa Gullo (for the
impact on state and local governments), who can be reached at
225-3220. This estimate was approved by Peter H. Fontaine,
Deputy Assistant Director for Budget Analysis.
Constitutional Authority Statement
Pursuant to clause 3(d)(1) of rule XIII of the Rules of the
House of Representatives, the committee finds the authority for
this legislation in Article I, section 8, clauses 3 and 18 of
the Constitution.
Section-by-Section Analysis and Discussion
Section 1--Short Title
Section 1 states that the act may be cited as the
``Electronic Communications Privacy Act of 2000.''
Section 2--Use as Evidence
Section 2 extends the statutory exclusionary rule to also
exclude from use in evidence at trial electronic
communications--including electronic communications such as e-
mail that lies in storage with an electronic communications
service--obtained in violation of Federal law, just as
illegally obtained wire and oral electronic communications are
excluded, while also allowing the use of such communications
against those who illegally obtained them.
Section 3--Reports Concerning the Disclosure of the Contents of
Electronic Communications
Section 3 requires the Federal Government to report
annually basic information regarding the requests it makes to
disclose the contents of stored electronic communications under
18 U.S.C. Sec. Sec. 2703(a) and (b).
Section 4--Pen Registers and Trap and Trace Devices
Section 4 raises the standard for the government's access,
under the Pen Register Act, to transactional information
regarding a person's communications by requiring that a court
find that ``specific and articulable facts reasonably indicate
that crime has been, is being, or will be committed, and
information likely to be obtained by such installation and use
is relevant to the investigation of that crime.''
Section 5--Civil Damages
Section 5 increases the civil penalties that may be applied
to those who illegally intercept electronic communications by
raising the daily damages for each violation from $100 a day to
$500 a day.
Section 6--Notification
Section 6 makes clear that only a court may decide whether
delays in notifying those whose stored electronic
communications are disclosed are appropriate.
Section 7--Government Access to Location Information
Section 7 prohibits the government from obtaining a mobile
phone user's location without first obtaining a court order
based on probable cause, except in certain emergency
situations. Certain exceptions to this provision are provided
for disclosing such information to emergency service providers
such as hospitals, or to the legal guardian or members of the
user's immediate family in situations involving the risk of
death or serious physical harm, or with the express consent of
the user of the mobile phone equipment.
Section 8--Computer Crime Amendments
Section 8 raises the maximum penalty for the most serious
computer violations to 10 years in prison and extends Federal
jurisdiction to those computer crimes involving an attack on a
protected computer that modifies or impairs, or threatens to
modify or impair, the medical examination, diagnosis,
treatment, or care of one or more individuals, causes physical
injury to any individual, or threatens public health or safety.
Section 8 also creates a new category of felony violations
where a hacker causes damage to a computer system used by or
for a government entity in furtherance of the administration of
justice, national defense, or national security.
Section 8 also clarifies that damage to multiple protected
computers must be aggregated in determining whether a violation
has exceeded the $5,000 threshold for an offense and applies
the criminal forfeiture rules to computer hacking crimes.
Section 8 also expressly defines the term ``loss'' as used
in the statute to account for a wide range of possible harms
done to the victims of computer crimes, including reasonable
costs of responding to the offense, conducting a damage
assessment, restoring the system and data to their condition
prior to the offense, and any lost revenue or costs incurred
because of the interruption of service.
Section 8 also allows the Federal Government to investigate
and prosecute offenses in which a person intentionally defaced,
damaged or destroyed images or information made available to
the public, such as the defacing of images or information on
computer systems, even if such offenses did not result in more
than $5,000 in damages.
Finally, Section 8 restricts the 6 month minimum sentence
under the Federal Sentencing Guidelines to only the more
serious computer crimes and better ensures that the punishment
fits the crime.
Section 9--Interception of Wire, Oral, and Electronic Communications
Amendments
Section 9 requires high-level Department of Justice
approval for interceptions of electronic communications, as is
currently required for interceptions of wire and oral
communications, and also adds computer crimes to the enumerated
offenses for which interceptions may be ordered.
Section 10--Amendments to the Electronic Communications Privacy Act
Section 10 increases the criminal penalties for the illegal
disclosure of stored electronic communications and allows
electronic communications service providers to disclose to law
enforcement basic customer records, such as name and address,
with the lawful consent of the customer or subscriber; as may
be necessarily incident to the rendition of service or to the
protection of the rights or property of the provider of that
service; or to a governmental entity, if the provider
reasonably believes that an emergency involving immediate
danger of death or serious physical injury to any person
justifies disclosure of the information.
Section 10 also raises the minimum civil damage award for
the illegal disclosure of stored electronic communications to
$5,000.
Section 11--Additional Provisions Relating to Pen Registers
Section 11 allows law enforcement to use devices that track
the source and destination of criminal communications without a
court order for up to 48 hours in situations involving national
security and ongoing attacks on computer networks, but also
requires that, if a court finds law enforcement had an
insufficient basis to conduct the monitoring, the judge must
order that the person whose communications were wrongfully
tracked be notified.
Section 12--Government Access to Contents of Stored Electronic
Communications
Section 12 extends the protection of a warrant requirement
to electronic communications stored by electronic
communications services for 1 year or less.
Section 13--Enhanced Privacy Protection for Information on Computer
Networks
Section 13 makes clear that protections of electronic
communications in electronic storage cover e-mail messages that
have been accessed by the intended recipient but remain stored
by an electronic communications service.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italics, existing law in which no change
is proposed is shown in roman):
TITLE 18, UNITED STATES CODE
* * * * * * *
PART I--CRIMES
* * * * * * *
CHAPTER 47--FRAUD AND FALSE STATEMENTS
* * * * * * *
Sec. 1030. Fraud and related activity in connection with computers
(a) Whoever--
(1) * * *
* * * * * * *
(3) intentionally, without authorization to access
any nonpublic computer of a department or agency of the
United States, accesses [such a computer] without or in
excess of authorization a computer of that department
or agency that is exclusively for the use of the
Government of the United States or, in the case of a
computer not exclusively for such use, is used by or
for the Government of the United States and such
conduct affects;
* * * * * * *
(5)(A)(i) knowingly causes the transmission of a
program, information, code, or command, and as a result
of such conduct, intentionally causes damage without
authorization, to a protected computer;
[(B)] (ii) intentionally accesses a protected
computer without authorization, and as a result of such
conduct, recklessly causes damage; or
[(C)] (iii) intentionally accesses a protected
computer without authorization, and as a result of such
conduct, causes damage; and
(B) whose conduct described in clause (i), (ii), or
(iii) of subparagraph (A)--
(i) caused loss to one or more persons
during any one-year period (including loss
resulting from a related course of conduct
affecting one or more other protected
computers) aggregating at least $5,000;
(ii) modified or impaired, or potentially
modified or impaired, the medical examination,
diagnosis, treatment, or care of one or more
individuals;
(iii) caused physical injury to any
individual;
(iv) threatened public health or safety;
(v) caused damage affecting a computer
system used by or for a government entity in
furtherance of the administration of justice,
national defense, or national security; or
(vi) intentionally defaced, damaged, or
destroyed images or information made available
to the public and thereby interfered with the
rights protected under the First Amendment to
the Constitution;
* * * * * * *
(7) with intent to extort from any person[, firm,
association, educational institution, financial
institution, government entity, or other legal entity,]
any money or other thing of value,
transmits in interstate or foreign commerce any
communication containing any threat to cause damage to
a protected computer;
shall be punished as provided in subsection (c) of this
section.
(b) Whoever attempts to commit an offense under subsection
(a) of this section shall be punished as provided in subsection
(c) of this section as if such person had committed the
completed offense.
(c) The punishment for an offense under subsection (a) or
(b) of this section is--
(1)(A) a fine under this title or imprisonment for
not more than ten years, or both, in the case of an
offense under subsection (a)(1), (a)(5)(A)(i), or
(a)(5)(A)(ii) of this section which does not occur
after a conviction for another offense under this
section[, or an attempt to commit an offense punishable
under this subparagraph]; and
(B) a fine under this title or imprisonment for not
more than twenty years, or both, in the case of an
offense under subsection (a)(1) of this section which
occurs after a conviction for another offense under
this section[, or an attempt to commit an offense
punishable under this subparagraph];
[(2)(A) a fine under this title or imprisonment for
not more than one year, or both, in the case of an
offense under subsection (a)(2), (a)(3), (a)(5)(C), or
(a)(6) of this section which does not occur after a
conviction for another offense under this section, or
an attempt to commit an offense punishable under this
subparagraph; and]
(2)(A) except as provided in subsection (c)(2)(B),
a fine under this title or imprisonment for not more
than one year, or both, in the case of an offense under
subsection (a)(2), (a)(3), (a)(5)(A)(iii), or (a)(6) of
this section which does not occur after a conviction
for another offense under this section;
* * * * * * *
[(C) a fine under this title or imprisonment for
not more than ten years, or both, in the case of an
offense under subsection (a)(2), (a)(3) or (a)(6) of
this section which occurs after a conviction for
another offense under such subsection, or an attempt to
commit an offense punishable under this subparagraph;
and]
[(3)(A)] (3) a fine under this title or
imprisonment for not more than five years, or both, in
the case of an offense under subsection (a)(4)[,
(a)(5)(A), (a)(5)(B),] or (a)(7) of this section which
does not occur after a conviction for another offense
under this section[, or an attempt to commit an offense
punishable under this subparagraph; and]; and
[(B) a fine under this title or imprisonment for
not more than ten years, or both, in the case of an
offense under subsection (a)(4), (a)(5)(A), (a)(5)(B),
(a)(5)(C), or (a)(7) of this section which occurs after
a conviction for another offense under this section, or
an attempt to commit an offense punishable under this
subparagraph; and]
(4) a fine under this title or imprisonment for not
more than ten years, or both, in the case of an offense
under subsection (a)(2), (a)(3), (a)(4), (a)(5),
(a)(6), or (a)(7) of this section which occurs after a
conviction for another offense under this section.
(d) The United States Secret Service shall, in addition to
any other agency having such authority, have the authority to
investigate offenses under [subsections (a)(2)(A), (a)(2)(B),
(a)(3), (a)(4), (a)(5), and (a)(6) of] this section. Such
authority of the United States Secret Service shall be
exercised in accordance with an agreement [which shall be
entered into by] between the Secretary of the Treasury and the
Attorney General.
(e) As used in this section--
(1) * * *
* * * * * * *
(7) the term ``department of the United States''
means the legislative or judicial branch of the
Government or one of the executive departments
enumerated in section 101 of title 5; [and]
(8) the term ``damage'' means any impairment to the
integrity or availability of data, a program, a system,
or information[, that--
[(A) causes loss aggregating at least
$5,000 in value during any 1-year period to one
or more individuals;
[(B) modifies or impairs, or potentially
modifies or impairs, the medical examination,
diagnosis, treatment, or care of one or more
individuals;
[(C) causes physical injury to any person;
or
[(D) threatens public health or safety;
and];
(9) the term ``government entity'' includes the
Government of the United States, any State or political
subdivision of the United States, any foreign country,
and any state, province, municipality, or other
political subdivision of a foreign country[.];
(10) the term ``conviction for another offense
under this section'' includes a State conviction for a
crime punishable by imprisonment for more than 1 year,
an element of which is unauthorized access, or
exceeding authorized access, to a computer;
(11) the term ``loss'' means any reasonable cost to
any victim, including responding to the offense,
conducting a damage assessment, restoring any data,
program, system, or information to its condition before
the offense, and any revenue lost or costs incurred
because of interruption of service; and
(12) the term ``person'' includes any individual,
firm, association, educational institution, financial
institution, corporation, company, partnership,
government entity, or other legal entity.
* * * * * * *
[(g) Any person who suffers damage or loss by reason of a
violation of this section may maintain a civil action against
the violator to obtain compensatory damages and injunctive
relief or other equitable relief. Damages for violations
involving damage as defined in subsection (e)(8)(A) are limited
to economic damages. No action may be brought under this
subsection unless such action is begun within 2 years of the
date of the act complained of or the date of the discovery of
the damage.]
(g) Except as herein provided, any person who suffers
damage or loss by reason of a violation of this section may
maintain a civil action against the violator to obtain
compensatory damages and injunctive or other equitable relief.
A suit for a violation of subsection (a)(5) may be brought only
if the conduct involves one or more of the factors enumerated
in subsection (a)(5)(B). No action may be brought under this
subsection unless such action is begun within 2 years of the
date of the act complained of or the date of the discovery of
the damage.
* * * * * * *
(i)(1) The court, in imposing sentence on any person
convicted of a violation of this section, shall order, in
addition to any other sentence imposed and irrespective of any
provision of State law, that such person forfeit to the United
States--
(A) such person's interest in any personal property
that was used or intended to be used to commit or to
facilitate the commission of such violation; and
(B) any property, real or personal, constituting or
derived from, any proceeds that such person obtained,
directly or indirectly, as a result of such violation.
(2) The criminal forfeiture of property under this
subsection, any seizure and disposition thereof, and any
administrative or judicial proceeding in relation thereto,
shall be governed by the provisions of section 413 of the
Comprehensive Drug Abuse Prevention and Control Act of 1970 (21
U.S.C. 853), except subsection (d) of that section.
* * * * * * *
CHAPTER 119--WIRE AND ELECTRONIC COMMUNICATIONS INTERCEPTION AND
INTERCEPTION OF ORAL COMMUNICATIONS
Sec.
2510. Definitions.
* * * * * * *
[2515. Prohibition of use as evidence of intercepted wire or oral
communications.]
2515. Prohibition of use as evidence of intercepted wire, oral, or
electronic communications.
* * * * * * *
Sec. 2510. Definitions
As used in this chapter--
(1) * * *
* * * * * * *
(10) ``communication common carrier'' shall have
the same meaning which is given the term ``common
carrier'' by section [153(h)] 153(10) of title 47 of
the United States Code;
* * * * * * *
(17) ``electronic storage'' means--
(A) any temporary, intermediate storage of
a wire or electronic communication incidental
to the electronic transmission thereof; [and]
* * * * * * *
(C) any storage of an electronic
communication by an electronic communication
service without regard to whether the
communication has been accessed by the intended
recipient; and
* * * * * * *
Sec. 2515. Prohibition of use as evidence of intercepted [wire or oral]
wire, oral, or electronic communications
[Whenever any wire or oral communication has been
intercepted] (a) Except as provided in subsection (b), whenever
any wire, oral, or electronic communication has been
intercepted, or any electronic communication in electronic
storage has been disclosed, no part of the contents of such
communication and no evidence derived therefrom may be received
in evidence in any trial, hearing, or other proceeding in or
before any court, grand jury, department, officer, agency,
regulatory body, legislative committee, or other authority of
the United States, a State, or a political subdivision thereof
if the disclosure of that information would be in violation of
this chapter or chapter 121.
(b) Subsection (a) does not apply to the disclosure, before
a grand jury or in a criminal trial, hearing, or other criminal
proceeding, of the contents of a communication, or evidence
derived therefrom, against a person alleged to have
intercepted, used, or disclosed the communication in violation
of this chapter, or chapter 121, or participated in such
violation.
Sec. 2516. Authorization for interception of wire, oral, or electronic
communications
(1) The Attorney General, Deputy Attorney General,
Associate Attorney General, or any Assistant Attorney General,
any acting Assistant Attorney General, or any Deputy Assistant
Attorney General or acting Deputy Assistant Attorney General in
the Criminal Division specially designated by the Attorney
General, may authorize an application to a Federal judge of
competent jurisdiction for, and such judge may grant in
conformity with section 2518 of this chapter an order
authorizing or approving the interception of [wire or oral]
wire, oral, or electronic communications by the Federal Bureau
of Investigation, or a Federal agency having responsibility for
the investigation of the offense as to which the application is
made, when such interception may provide or has provided
evidence of--
(a) * * *
* * * * * * *
(p) a felony violation of section 1028 (relating to
production of false identification documents), section
1030 (relating to computer fraud and abuse), section
1362 (relating to destruction of government
communications facilities), section 1542 (relating to
false statements in passport applications), section
1546 (relating to fraud and misuse of visas, permits,
and other documents) of this title or a violation of
section 274, 277, or 278 of the Immigration and
Nationality Act (relating to the smuggling of aliens);
or
[(p)] (q) any conspiracy to commit any offense
described in any subparagraph of this paragraph.
* * * * * * *
Sec. 2517. Authorization for disclosure and use of intercepted wire,
oral, or electronic communications
(1) Any investigative or law enforcement officer who, by
any means authorized by this chapter or under the circumstances
described in section 2515(b), has obtained knowledge of the
contents of any wire, oral, or electronic communication, or
evidence derived therefrom, may disclose such contents to
another investigative or law enforcement officer to the extent
that such disclosure is appropriate to the proper performance
of the official duties of the officer making or receiving the
disclosure.
(2) Any investigative or law enforcement officer who, by
any means authorized by this chapter or under the circumstances
described in section 2515(b), has obtained knowledge of the
contents of any wire, oral, or electronic communication or
evidence derived therefrom may use such contents to the extent
such use is appropriate to the proper performance of his
official duties.
Sec. 2518. Procedure for interception of wire, oral, or electronic
communications
(1) * * *
* * * * * * *
(7) Notwithstanding any other provision of this chapter,
any investigative or law enforcement officer, specially
designated by the Attorney General, the Deputy Attorney
General, the Associate Attorney General, or by the principal
prosecuting attorney of any State or subdivision thereof acting
pursuant to a statute of that State, who reasonably determines
that--
(a) * * *
(b) there are grounds upon which an order could be
entered under this chapter to authorize such
interception,
may intercept such wire, oral, or electronic communication if
an application for an order approving the interception is made
in accordance with this section within forty-eight hours after
the interception has occurred, or begins to occur. In the
absence of an order, such interception shall immediately
terminate when the communication sought is obtained or when the
application for the order is denied, whichever is earlier. In
the event such application for approval is denied, or in any
other case where the interception is terminated without an
order having been issued, the contents of any wire, oral, or
electronic communication intercepted shall be treated as having
been obtained in violation of this chapter, and an inventory
shall be served as provided for in [subsection (d)] subsection
(8)(d) of this section on the person named in the application.
* * * * * * *
(10)(a) Any aggrieved person in any trial, hearing, or
proceeding in or before any court, department, officer, agency,
regulatory body, or other authority of the United States, a
State, or a political subdivision thereof, may move to suppress
the contents of any wire [or oral], oral, or electronic
communication intercepted pursuant to this chapter, or evidence
derived therefrom, on the grounds that--
(i) the communication was unlawfully intercepted;
(ii) the order of authorization or approval under
which it was intercepted is insufficient on its face;
or
(iii) the interception was not made in conformity
with the order of authorization or approval[.];
except that no supresssion may be ordered under the
circumstances described in section 2515(b). Such motion shall
be made before the trial, hearing, or proceeding unless there
was no opportunity to make such motion or the person was not
aware of the grounds of the motion. If the motion is granted,
the contents of the intercepted wire [or oral], oral, or
electronic communication, or evidence derived therefrom, shall
be treated as having been obtained in violation of this
chapter. The judge, upon the filing of such motion by the
aggrieved person, may in his discretion make available to the
aggrieved person or his counsel for inspection such portions of
the intercepted communication or evidence derived therefrom as
the judge determines to be in the interests of justice.
* * * * * * *
[(c) The remedies and sanctions described in this chapter
with respect to the interception of electronic communications
are the only judicial remedies and sanctions for
nonconstitutional violations of this chapter involving such
communications.]
* * * * * * *
Sec. 2520. Recovery of civil damages authorized
(a) * * *
* * * * * * *
(c) Computation of Damages.--(1) * * *
(2) In any other action under this section, the court [may]
shall assess as damages whichever is the [greater] greatest
of--
(A) the sum of the actual damages suffered by the
plaintiff and any profits made by the violator as a
result of the violation; [or]
(B) statutory damages of [whichever is the greater
of $100 a day for each day of violation or $10,000.]
$500 a day for each violation; or
(C) statutory damages of $10,000.
* * * * * * *
CHAPTER 121--STORED WIRE AND ELECTRONIC COMMUNICATIONS AND
TRANSACTIONAL RECORDS ACCESS
Sec.
2701. Unlawful access to stored communications.
[2702. Disclosure of contents.]
2702. Voluntary disclosure of customer communications or records.
* * * * * * *
Sec. 2701. Unlawful access to stored communications
(a) * * *
(b) Punishment.--The punishment for an offense under
subsection (a) of this section is--
(1) if the offense is committed for [purposes of] a
tortious or illegal purpose, commercial advantage,
malicious destruction or damage, or private commercial
gain--
(A) a fine under this title or imprisonment
for not more than [one year] three years, or
both, in the case of a first offense under this
subparagraph; and
(B) a fine under this title or imprisonment
for not more than [two] five years, or both,
for any subsequent offense under this
subparagraph; and
[(2) a fine under this title or imprisonment for
not more than six months, or both, in any other case.]
(2) in any other case--
(A) a fine under this title or imprisonment
for not more than one year, or both, in the
case of a first offense under this
subparagraph; and
(B) a fine under this title or imprisonment
for not more than five years, or both, for any
subsequent offense under this subparagraph.
* * * * * * *
[Sec. 2702. Disclosure of contents]
Sec. 2702. Voluntary disclosure of customer communications or records
(a) Prohibitions.--Except as provided in subsection (b)--
(1) a [person or entity providing an] provider of
electronic communication service to the public shall
not knowingly divulge to any person or entity the
contents of a communication while in electronic storage
by that service; [and]
(2) a [person or entity providing] provider of
remote computing service to the public shall not
knowingly divulge to any person or entity the contents
of any communication which is carried or maintained on
that service--
(A) on behalf of, and received by means of
electronic transmission from (or created by
means of computer processing of communications
received by means of electronic transmission
from), a subscriber or customer of such
service; and
(B) solely for the purpose of providing
storage or computer processing services to such
subscriber or customer, if the provider is not
authorized to access the contents of any such
communications for purposes of providing any
services other than storage or computer
processing[.]; and
(3) a provider of remote computing service or
electronic communication service to the public shall
not knowingly divulge a record or other information
pertaining to a subscriber to or customer of such
service (not including the contents of communications
covered by paragraph (1) or (2) of this subsection) to
any governmental entity.
(b) Exceptions for Disclosure of Communications.--A [person
or entity] provider described in subsection (a) may divulge the
contents of a communication--
(1) * * *
* * * * * * *
(c) Exceptions for Disclosure of Customer Records.--A
provider described in subsection (a) may divulge a record or
other information pertaining to a subscriber to or customer of
such service (not including the contents of communications
covered by subsection (a)(1) or (a)(2) of this section)--
(1) as otherwise authorized in section 2703 of this
title;
(2) with the lawful consent of the customer or
subscriber;
(3) as may be necessarily incident to the rendition
of the service or to the protection of the rights or
property of the provider of that service;
(4) to a governmental entity, if the provider
reasonably believes that an emergency involving
immediate danger of death or serious physical injury to
any person justifies disclosure of the information; or
(5) to any person other than a governmental entity
where not otherwise prohibited by law.
Sec. 2703. Requirements for governmental access
(a) Contents of Electronic Communications in Electronic
Storage.--A governmental entity may require the disclosure by a
provider of electronic communication service of the contents of
an electronic communication, that is in electronic storage in
an electronic communications system for [one hundred and eighty
days] one year or less, only pursuant to a warrant issued under
the Federal Rules of Criminal Procedure or equivalent State
warrant. A governmental entity may require the disclosure by a
provider of electronic communications services of the contents
of an electronic communication that has been in electronic
storage in an electronic communications system for more than
[one hundred and eighty days] one year by the means available
under subsection (b) of this section.
* * * * * * *
(c) Records Concerning Electronic Communication Service or
Remote Computing Service.--(1)[(A) Except as provided in
subparagraph (B),] A governmental entity may require a provider
of electronic communication service or remote computing service
[may] to disclose a record or other information pertaining to a
subscriber to or customer of such service (not including the
contents of communications covered by subsection (a) or [(b) of
this section] (b), or wireless location information covered by
subsection (g)) [to any person other than a governmental
entity.]
[(B) A provider of electronic communication service or
remote computing service shall disclose a record or other
information pertaining to a subscriber to or customer of such
service (not including the contents of communications covered
by subsection (a) or (b) of this section) to a governmental
entity] only when the governmental entity--
[(i)] (A) obtains a warrant issued under the
Federal Rules of Criminal Procedure or equivalent State
warrant;
[(ii)] (B) obtains a court order for such
disclosure under subsection (d) of this section;
[(iii)] (C) has the consent of the subscriber or
customer to such disclosure; [or]
[(iv)] (D) submits a formal written request
relevant to a law enforcement investigation concerning
telemarketing fraud for the name, address, and place of
business of a subscriber or customer of such provider,
which subscriber or customer is engaged in
telemarketing (as such term is defined in section 2325
of this title)[.]; or
(E) seeks information pursuant to paragraph (2).
[(C)] (2) A provider of electronic communication service or
remote computing service shall disclose to a governmental
entity the name, address, local and long distance telephone
toll billing records, telephone number or other subscriber
number or identity, and length of service of a subscriber to or
customer of such service and the types of services the
subscriber or customer utilized, when the governmental entity
uses [an administrative subpoena authorized by a Federal or
State statute or a Federal or State grand jury or trial
subpoena] a Federal or State grand jury or trial subpoena, or a
subpoena or equivalent process authorized by a Federal or State
statute, or any means available under [subparagraph (B).]
paragraph (1).
[(2)] (3) A governmental entity receiving records or
information under this subsection is not required to provide
notice to a subscriber or customer.
* * * * * * *
(g) Reports Concerning the Disclosure of the Contents of
Electronic Communications.--
(1) By January 31 of each calendar year, the judge
issuing or denying an order, warrant, or subpoena, or
the authority issuing or denying a subpoena, under
subsection (a) or (b) of this section during the
preceding calendar year shall report on each such
order, warrant, or subpoena to the Administrative
Office of the United States Courts--
(A) the fact that the order, warrant, or
subpoena was applied for;
(B) the kind of order, warrant, or subpoena
applied for;
(C) the fact that the order, warrant, or
subpoena was granted as applied for, was
modified, or was denied;
(D) the offense specified in the order,
warrant, subpoena, or application;
(E) the identity of the agency making the
application; and
(F) the nature of the facilities from which
or the place where the contents of electronic
communications were to be disclosed.
(2) In January of each year the Attorney General or
an Assistant Attorney General specially designated by
the Attorney General shall report to the Administrative
Office of the United States Courts--
(A) the information required by
subparagraphs (A) through (F) of paragraph (1)
of this subsection with respect to each
application for an order, warrant, or subpoena
made during the preceding calendar year; and
(B) a general description of the
disclosures made under each such order,
warrant, or subpoena, including--
(i) the approximate number of all
communications disclosed and, of those,
the approximate number of incriminating
communications disclosed;
(ii) the approximate number of
other communications disclosed; and
(iii) the approximate number of
persons whose communications were
disclosed.
(3) In June of each year, beginning in 2002, the
Director of the Administrative Office of the United
States Courts shall transmit to the Congress a full and
complete report concerning the number of applications
for orders, warrants, or subpoenas authorizing or
requiring the disclosure of the contents of electronic
communications pursuant to subsections (a) and (b) of
this section and the number of orders, warrants, or
subpoenas granted or denied pursuant to subsections (a)
and (b) of this section during the preceding calendar
year. Such report shall include a summary and analysis
of the data required to be filed with the
Administrative Office by paragraphs (1) and (2) of this
subsection. The Director of the Administrative Office
of the United States Courts is authorized to issue
binding regulations dealing with the content and form
of the reports required to be filed by paragraphs (1)
and (2) of this subsection.
(h) Disclosure of Location Information to Governmental
Entities.--
(1) Disclosure upon court order.--Except as
provided in paragraph (2), a provider of mobile
electronic communication service shall provide to a
governmental entity information generated by and
disclosing the current physical location of a
subscriber's equipment only if the governmental entity
obtains a court order issued upon a finding that there
is probable cause to believe that--
(A) a person is committing, has committed,
or is about to commit a felony offense; and
(B) the location information sought to be
obtained concerns the location of the person
believed to have committed, be committing, or
be about to commit that offense or a victim of
that offense.
(2) Permitted disclosures without court order.--A
provider of mobile electronic communication service may
provide information described in paragraph (1)--
(A) to a public safety answering point,
emergency medical service provider or emergency
dispatch provider, public safety, fire service
or law enforcement official, or hospital
emergency or trauma care facility, in order to
respond to the user's call for emergency
services;
(B) to inform the user's legal guardian or
members of the user's immediate family of the
user's location in an emergency situation that
involves the risk of death or serious physical
harm; or
(C) with the express consent of the
subscriber or the user of the equipment
concerned.
(3) Definition.--The term ``public safety answering
point'' means a facility that has been designated to
receive emergency calls and route them to emergency
service personnel.
* * * * * * *
Sec. 2705. Delayed notice
(a) Delay of Notification.--(1) * * *
* * * * * * *
(4) Extensions of the delay of notification provided in
section 2703 of up to ninety days each may be granted by the
court upon application, [or by certification by a governmental
entity, but only in accordance with subsection (b) of this
section.] if the court determines that there is reason to
believe that notification of the existence of the court order
or subpoena may have an adverse result described in paragraph
(2) of this subsection.
* * * * * * *
Sec. 2707. Civil action
(a) * * *
* * * * * * *
(c) Damages.--The court may assess as damages in a civil
action under this section the sum of the actual damages
suffered by the plaintiff and any profits made by the violator
as a result of the violation, but in no case shall a person
entitled to recover receive less than the sum of [$1,000]
$5,000. If the violation is willful or intentional, the court
may assess punitive damages. In the case of a successful action
to enforce liability under this section, the court may assess
the costs of the action, together with reasonable attorney fees
determined by the court.
* * * * * * *
PART II--CRIMINAL PROCEDURE
* * * * * * *
CHAPTER 206--PEN REGISTERS AND TRAP AND TRACE DEVICES
* * * * * * *
Sec. 3122. Application for an order for a pen register or a trap and
trace device
(a) * * *
(b) Contents of Application.--An application under
subsection (a) of this section shall include--
(1) * * *
[(2) a certification by the applicant that the
information likely to be obtained is relevant to an
ongoing criminal investigation being conducted by that
agency.]
(2) a statement of facts showing that the
requirements of section 3123 have been met.
Sec. 3123. Issuance of an order for a pen register or a trap and trace
device
(a) In General.--Upon an application made under section
3122 of this title, the court shall enter an ex parte order
authorizing the installation and use of a pen register or a
trap and trace device within the jurisdiction of the court if
the court finds that [the attorney for the Government or the
State law enforcement or investigative officer has certified to
the court that the information likely to be obtained by such
installation and use is relevant to an ongoing criminal
investigation.] specific and articulable facts reasonably
indicate that a crime has been, is being, or will be committed,
and information likely to be obtained by such installation and
use is relevant to the investigation of that crime.
* * * * * * *
Sec. 3125. Emergency pen register and trap and trace device
installation
(a) Notwithstanding any other provision of this chapter,
any investigative or law enforcement officer, specially
designated by the Attorney General, the Deputy Attorney
General, the Associate Attorney General, any Assistant Attorney
General, any acting Assistant Attorney General, or any Deputy
Assistant Attorney General, or by the principal prosecuting
attorney of any State or subdivision thereof acting pursuant to
a statute of that State, who reasonably determines that--
(1) an emergency situation exists that involves--
(A) immediate danger of death or serious
bodily injury to any person; [or]
(B) conspiratorial activities
characteristic of organized crime[,];
(C) an immediate threat to a national
security interest; or
(D) an ongoing attack on the integrity or
availability of a protected computer in
violation of section 1030(a)(5)(A)(i) or
1030(a)(5)(A)(ii) of this title,
that requires the installation and use of a pen
register or a trap and trace device before an order
authorizing such installation and use can, with due
diligence, be obtained, and
(2) there are grounds upon which an order could be
entered under this chapter to authorize such
installation and use;
may have installed and use a pen register or trap and trace
device if, within forty-eight hours after the installation has
occurred, or begins to occur, an order approving the
installation or use is issued in accordance with section 3123
of this title. In the event an application for such order is
denied, or in any other case where the installation and use of
a pen register or trap and trace device is terminated without
an order having been issued, any information obtained by such
installation and use shall be treated as having been obtained
in violation of this chapter, and an inventory shall be served
as provided for in subsection (b) of this section on the person
named in the application.
(b) Within a reasonable time but not later than 90 days
after the filing of an application for an order of approval
under subsection (a)(2) of this section which is denied, the
denying judge shall cause to be served, on the persons named in
the order or the application, and such other parties to the
information obtained by such installation and use of a pen
register or trap and trace device as the judge may determine in
his discretion is in the interest of justice, an inventory
which shall include notice of--
(1) the fact of the entry of the application;
(2) the date of the entry and the date of the
denial of the application; and
(3) the fact that during the period covered by the
application, information was obtained by the
installation and use of a pen register or trap and
trace device.
The judge, upon the filing of a motion, may in his discretion
make available to such person or his counsel for inspection
such portions of the applications as the judge determines to be
in the interest of justice. On an ex parte showing of good
cause to a judge of competent jurisdiction the serving of the
inventory required by this subsection may be postponed.
[(b)] (c) In the absence of an authorizing order, such use
shall immediately terminate when the information sought is
obtained, when the application for the order is denied or when
forty-eight hours have lapsed since the installation of the pen
register or trap and trace device, whichever is earlier.
[(c)] (d) The knowing installation or use by any
investigative or law enforcement officer of a pen register or
trap and trace device pursuant to subsection (a) without
application for the authorizing order within forty-eight hours
of the installation shall constitute a violation of this
chapter.
[(d)] (e) A provider of a wire or electronic service,
landlord, custodian, or other person who furnished facilities
or technical assistance pursuant to this section shall be
reasonably compensated for such reasonable expenses incurred in
providing such facilities and assistance.
* * * * * * *
Sec. 3127. Definitions for chapter
As used in this chapter--
(1) * * *
* * * * * * *
(6) the term ``State'' means a State, the District
of Columbia, Puerto Rico, and any other possession or
territory of the United States[.]; and
(7) the term ``protected computer'' has the meaning
set forth in section 1030 of this title.
* * * * * * *
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SECTION 805 OF THE ANTITERRORISM AND EFFECTIVE DEATH PENALTY ACT OF
1996
SEC. 805. DETERRENT AGAINST TERRORIST ACTIVITY DAMAGING A FEDERAL
INTEREST COMPUTER.
(a) * * *
* * * * * * *
(c) Amendment of Guidelines.--Pursuant to its authority
under section 994(p) of title 28, United States Code, the
United States Sentencing Commission [shall amend the sentencing
guidelines to ensure any individual convicted of a violation of
paragraph (4) or (5)] shall amend the sentencing guidelines to
ensure any individual convicted of a violation of paragraph (4)
or a felony violation of paragraph (5)(A)(i) (but not of
paragraph (5)(A)(ii) or (5)(A)(iii)) of section 1030(a) of
title 18, United States Code, is imprisoned for not less than 6
months.